Commissioner of Police v Horopapara

[2024] NZHC 407

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-000048

[2024] NZHC 407

IN THE MATTER OF

an application pursuant to s 41 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

JOSEPH PATARA TE KOHIMARAMA HOROPAPARA

First Respondent

MACARTHUR GARY JOHN ATKINS
Second Respondent (Deceased)

(Intituling continues over page…)

Hearing:	27 February 2024
Appearances:	A Gordon and P Patanasiri for the Applicant G Coleman for the Seventh Respondent
Judgment:	1 March 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 01 March 2024 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

Gordon Pilditch, Crown Solicitor, Rotorua Lance Lawson, Rotorua

Andrew Hill Law, Rotorua

P Cornegé, Barrister, Hamilton

THE COMMISSIONER OF POLICE v HOROPAPARA [2024] NZHC 407 [1 March 2024]

GARETH LUKE TABENER

Third Respondent

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

ANZ BANK
Interested Party

CO-OPERATIVE BANK

Interested Party

WESTPAC BANK
Interested Party

[1]    Before the Court is a joint memorandum of counsel for the Commissioner of Police (the Commissioner) and counsel for the seventh respondent, Duane Simon. The memorandum invites the Court to approve a proposed settlement reached between the Commissioner and Mr Simon.

[2]    Counsel appeared before the Court on 27 February 2024 at which time I indicated approval of the settlement with written reasons to follow. These are my reasons.

[3]    Any settlement made in relation to proceedings brought under the provisions of the Criminal Proceeds (Recovery) Act 2009 (the Act) is required to be approved by this Court.1

Background

[4]    I summarise the background from the joint memorandum presented to the Court.

[5]    On 16 June 2020, the Court granted the Commissioner’s various without notice applications for restraining and other orders in this proceeding.

[6]    The Commissioner filed and served an application on notice for the restraint of, among other things, Mr Simon’s property. The property in question was a 2014 Harley Davidson motorcycle. Mr Simon was added as the seventh respondent. Restraining orders were granted and have been extended on multiple occasions.

[7]    On 30 June 2023, the Commissioner filed an application for profit forfeiture orders and asset forfeiture orders in respect of property owned by the respondents in these proceedings.

[8]    In respect of Mr Simon, the Commissioner applied for a profit forfeiture order of no less than $22,500. Originally, there were two Harley Davidson motorcycles at issue. The first is a 2014 Harley Davidson motorcycle with the registration A2TJJ (the

1      Criminal Proceeds (Recovery) Act 2009, s 95(2).

Motorcycle). The second is a 2014 Harley Davidson motorcycle with the registration B2YBS.

[9]    It transpires that the reference to the Harley Davidson with the registration B2YBS was in error as Mr Simon does not own that motorcycle. The Commissioner no longer seeks a profit forfeiture order in respect of that motorcycle.

Settlement approval

[10]   The proposed settlement, which binds the Commissioner and Mr Simon in the event of Court approval, is that:

(a)Mr Simon accepts he unlawfully benefitted from significant criminal activity, namely the cultivation and supply of cannabis, being offences against the Misuse of Drugs Act 1975.

(b)The unlawful benefit is the Motorcycle; and

(c)He has sole and full interest in the Motorcycle.

[11]   The parties seek by consent an asset forfeiture order whereby the sole asset is Mr Simon’s Motorcycle.

[12]The parties seek by consent an order for the subsequent sale of the Motorcycle.

[13]This agreement is in full and final settlement of:

(a)These proceedings against Mr Simon; and

(b)Mr Simon’s liability that he has or may have in respect of cannabis-related offending that gave rise to these proceedings.

[14]Costs lie where they fall.

Approval of settlements under the Act

[15]Section 95 of the Act provides:

95       High     Court     must     approve     settlement     between Commissioner and other party

(1)The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)A settlement does not bind the parties unless the High Court approves it.

(3)The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)the purposes of this Act; and

(b)the overall interests of justice.

[16]   Parliament has expressly empowered the Commissioner to enter settlements as to the forfeiture of property under the Act. It has entrusted the High Court with a supervisory jurisdiction to approve settlements when satisfied they are consistent with the purposes of the Act in the overall interests of justice.2

[17]   The requirement in s 95 is that the Court is to have regard to the overall interests of justice. This reflects the strong public interest in proceedings under the Act being brought to a prompt conclusion, reflecting the likely costs and risks inherent in the determination of a contested application and the desirability of proceedings under the Act being made on economic and pragmatic grounds reflective of common- sense compromise.3

Decision

[18]   Approval of the proposed settlement so that it becomes binding is, in my view, consistent with the purposes of the Act in the overall interests of justice. The Motorcycle is the only asset owned by Mr Simon that is now subject to these proceedings. No other respondents in these proceedings or any of the identified

2      Commissioner of Police v No-All Group Limited HC Auckland CIV-2010-404-404, 7 November 2011 at [11].

3      Commissioner of Police v Douglas [2015] NZHC 1293 at [6].

interested parties have an interest in the asset. The proposed settlement saves the settling parties the costs associated with further litigation. It will be a deterrent to Mr Simon and others who may learn of the consequences of the application of the legislation.

[19]Those are the reasons why settlement is accordingly approved.

Result

[20]I make the following orders to give effect to the settlement:4

(a)An asset forfeiture order in respect of the Motorcycle, being Mr Simon’s motorcycle, registration A2TJJ.

(b)An order for the sale of the Motorcycle.

(c)For the purposes of effecting the sale of the Motorcycle (and for the avoidance of doubt) the Official Assignee has the power to execute any deed or instrument in the name of Mr Simon and do anything necessary to give validity and operation to the deed and instrument.

(d)Each party will bear their own costs.

[21]   The parties have leave to seek any other orders necessary to effect the asset forfeiture order, if required.

............................................................

Walker J

4      At the hearing I asked counsel to provide terms of a draft order. Mr Patanasiri referred to the joint application for approval. No draft orders have been provided. Thus, in this judgment I give leave should any ancillary orders be required to effect the settlement.