Commissioner of Police v Horopapara

[2024] NZHC 1521

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-048

[2024] NZHC 1521

IN THE MATTER

of applications pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

JOSEPH PATARA TE KOHIMARAMA HOROPAPARA

First Respondent

CHEYENNE ANDREA STAUNTON
Second Respondent

GARETH LUKE TABENER
Third Respondent

/Contd….

Hearing:

On the papers

Appearances:

A Gordon for Applicant

A McManus (on behalf of S Mills) for First Respondent C A Staunton in person

A Hill for Fifth Respondent
No appearance for remaining respondents and interested parties

Judgment:

11 June 2024

JUDGMENT OF LANG J

[on approval of settlement of claim against the fifth respondent]

This judgment was delivered by Justice Lang On 11 June 2024 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

THE COMMISSIONER OF POLICE v HOROPAPARA [2024] NZHC 1521 [11 June 2024]

CLAYTON HERBERT GRANT

Fourth Respondent

TONY THOMAS HERBERT
Fifth Respondent

TINA JILIAN MURTAGH
Sixth Respondent

DUANE ARAPETA SIMON

Seventh Respondent

SHARNN KELVIN MAHUIKA
Eighth Respondent

THOMAS JOSEPH HOANI
Ninth Respondent

SHANE MAURICE HERBERT
Interested Party

CAROLE JOY WATSON

Interested Party

ANDREW ERUETI SKINNER
Interested Party

CHEYENNE ANDREA STAUNTON
Interested Party

RHODA-JAYNE BEAZLEY
Interested Party

ANZ BANK NEW ZEALAND LIMITED

Interested Party

CO-OPERATIVE BANK
Interested Party

WESTPAC NEW ZEALAND LTD
Interested Party

Solicitors/counsel:  Gordon Pilditch, Rotorua Lance Lawson, Rotorua Andrew Hill Law, Rotorua

P V Cornége, Barrister, Hamilton

[1]                 In this proceeding, the Commissioner of Police (the Commissioner) seeks asset and profit forfeiture orders against the respondents under the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]                 The Commissioner and the fifth respondent, Mr Herbert, have now resolved all outstanding issues between them. They seek the Court’s approval to the proposed settlement under s 95 of the Act.

The proposed settlement

[3]                 Mr Herbert has agreed to settle the proceeding on the basis that he accepts that he unlawfully benefited from significant criminal activity, namely the cultivation and supply of cannabis. These activities constitute offences under the Misuse of Drugs Act 1975.

[4]                 Mr Herbert also accepts that he unlawfully benefited from this activity by receiving funds or assets to the value of $146,115. The maximum amount recoverable against Mr Herbert is therefore the sum of $146,115.

[5]                 The parties have agreed that the Court should make a profit forfeiture order against Mr Herbert in the sum of $146,115. This will be satisfied through the forfeiture and realisation of restrained assets belonging to him. These comprise cash in the sum of $9,405 and the net proceeds of sale of a 1964 Chevrolet Impala motor vehicle which is to be sold by the Official Assignee.1

[6]                 The balance of the order is to be satisfied by the Official Assignee selling a residential property owned by Mr Herbert. The net proceeds of sale are to be applied to extinguish the amount owing under the assets forfeiture order.2 Any balance thereafter remaining will be paid to Mr Herbert.

1      The net proceeds comprise the balance remaining after deducting the Official Assignee’s costs and the costs incurred in selling the vehicle.

2      The net proceeds will comprise the balance remaining after payment of the amount owing under any mortgage together with the Official Assignee’s costs and any costs incurred in selling thew property.

Decision

[7]                 I am satisfied that the proposed settlement is consistent with the objectives of the Act. These are to provide for the forfeiture of property derived from significant criminal activity and to eliminate the profit obtained by persons involved in such activity.3 The making of profit forfeiture orders also has the potential to deter significant criminal activity in the future.

[8]                 I therefore approve the proposed settlement under s 95 of the Act. I make orders by consent as sought in paragraph 12 of the Joint Memorandum of Counsel dated 30 May 2024.

[9]Costs are to lie where they fall.

Lang J

3      Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (2)(a).