Commissioner of Police v Karetu

[2023] NZHC 1585

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-123

[2023] NZHC 1585

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BOYCEE LINTON JUNIOR KARETU

Respondent

Hearing:

On the papers

Appearances:

R D Smith for Applicant

S A Saunderson-Warner for Respondent

Judgment

23 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 June 2023 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]    The Commissioner of Police has made an on notice application for a restraining order in respect  of  $17,660  (together  with  interest),  seized  from  Mr  Karetu  on 2 December 2021, pursuant to the Search and Surveillance Act 2012. The Commissioner has also applied for civil forfeiture orders as follows:

COMMISSIONER OF POLICE v KARETU [2023] NZHC 1585 [23 June 2023]

(a)an assets forfeiture order in the sum of $17,6601 obtained in cash; or in the alternative,

(b)a profit forfeiture order totalling $63,982.81 which was to be met in part by the cash sum referred to above, and the balance as a civil debt.

[2]    I am now in receipt of a consent memorandum as to the making of an asset forfeiture order. Specifically, the respondent consents to the making of an asset forfeiture order  in  respect  of  the  cash  sum  seized  by  New  Zealand  Police  on  2 December 2021 and any interest accrued on that sum since the cash was seized.

[3]    The Commissioner of Police will not seek a restraining order and invites the Court to dismiss that application. The Commissioner of Police will also not seek a profit forfeiture order and the Court is invited to dismiss that application. The parties advise that they agree that costs are to lie where they fall.

Discussion

[4]    I note that the proposed resolution is subject to s 95 of the Criminal Proceeds (Recovery) Act 2009 as a “settlement” between the Commissioner of Police and the defendant. That is because, in accepting the making of the asset forfeiture order only, the Commissioner of Police is relinquishing the right to pursue the profit forfeiture order.

[5]    Under s 95(2) and (3), a settlement is not binding unless the High Court approves it, and the High Court can only approve settlement if it is satisfied it is consistent with:

(a)the purposes of this Act; and

(b)the overall interests of justice.

1      The on notice application for a restraining order refers to a sum of $17,660 comprising $1,160 in cash in a shoulder bag and $16,000 in cash in a black bag, and I use this figure throughout.

[6]    Given an assets forfeiture order and a profit forfeiture order are alternative forms of relief which can be granted, I am satisfied it achieves the purposes of the Act to pursue the asset forfeiture order only. Such an order ensures the forfeiture of property derived as a result of significant criminal activity, and is in the overall interests of justice. I also acknowledge there are practical impediments to pursuing the profit forfeiture order initially pleaded, given Mr Karetu’s personal circumstances.

[7]Accordingly, I order:

(a)the sum of $17,660 in cash (along with any interest earned on that sum), seized  by  police  during  the  execution  of  a  search   warrant   on   2 December 2021, from a motor vehicle registered to the respondent;

(i)vests in the Crown absolutely; and

(ii)is to be in the Official Assignee’s custody and control;

(b)the application for a profit forfeiture order is dismissed; and

(c)costs are to lie where they fall.

[8]    As these orders bring the proceedings to a conclusion, the telephone conference scheduled for 3 pm on Monday 26 June 2023 is vacated.

Solicitors:

Crown Solicitor, Dunedin

Copy To:
S A Saunderson-Warner, Barrister, Dunedin