Commissioner of Police v Keresoma

[2024] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-523

[2024] NZHC 1014

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ISAIAH TIMOTHI KERESOMA

Respondent

Hearing:

19 April 2024

Counsel:

S M Earl for applicant

No appearance by or on behalf of respondent

Judgment:

30 April 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 30 April 2024 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: MC, Auckland

COMMISSIONER OF POLICE v KERESOMA [2024] NZHC 1014 [30 April 2024]

[1]        On 3 October 2019, Police officers searched the home of Isaiah Keresoma in Manurewa, in that way publicly notifying an investigation they had been conducting into his suspected drug offending.

[2]        Inside a locked metal box in the garage, they found a duffel bag containing various bottles and chemicals suitable for use in the manufacture of methamphetamine. Also in the duffel bag were various Louis Vuitton-branded satchels, wallets and sunglasses and a pair of Versace-branded sunglasses (collectively, the Designer Goods), and a gold chain, gold rings and diamond stud earrings (collectively, the Jewellery), with a combined value of around $80,000. Other equipment and material suitable for methamphetamine manufacture, around 70 grams of manufactured methamphetamine, and two stolen motorcycles were also in the garage.

[3]        Mr Keresoma was charged with various drug-related and other offences. On 16 November 2020, he pleaded guilty to manufacturing methamphetamine on at least 11 occasions, supplying methamphetamine on 39 occasions, and offering to supply methamphetamine on three occasions.

[4]        By application dated 15 March 2024, the Commissioner seeks a profit forfeiture order or alternatively restraining orders, in respect of the Designer Goods and Jewellery. As required by s 52 of Criminal Proceeds (Recovery) Act 2009, the application describes “the significant criminal activity within the relevant period of criminal activity from which” Mr Keresoma is alleged to have unlawfully benefited, states the value of that benefit (as $191,350) and identifies the Designer Goods and Jewellery as the property in which he holds interests. Although it may have been more clearly stated, I am prepared to infer that the application should be read on the basis that Mr Keresoma is alleged to own that property, it being acquired or derived by him as a result of significant criminal activity.

[5]        The application was served on Mr Keresoma on 27 March 2024, prior to being heard in the Criminal Proceeds list on 19 April 2024. The Commissioner seeks judgment.

[6]Accordingly, I must determine:

(a)whether the Commissioner has proved, on the balance of probabilities, that Mr Keresoma did, in the relevant period of criminal activity, unlawfully benefit from significant criminal activity1, in which case the value of his benefit will be presumed to be that stated in the Commissioner’s application ($191,350);

(b)the “maximum recoverable amount” under s 54 of the Act, being the value of his benefit less the value of any property forfeited under a type 1 assets forfeiture order made in relation to the same significant criminal activity; and

(c)whether Mr Keresoma has interests in the Designer Goods and Jewellery.2

[7]        If the Commissioner has proved the matter at [7](a), I must make a profit forfeiture order in accordance with my views of the matters at [7](b) and [7](c).

Did Mr Keresoma unlawfully benefit from significant criminal activity in the relevant period?

[8]        Significant criminal activity is activity engaged in that if proceeded against as a criminal offence would amount to offending punishable by a maximum term of imprisonment of five years or more, or from which at least $30,000 in value of property or benefits has been acquired.3 The relevant period is the period  between  15 March 2017 and 15 March 2024, being the period of seven years before the date of the Commissioner’s application.4

[9]        Mr Keresoma’s guilty pleas of 16 November 2020, in respect of charges of supplying methamphetamine deriving from the investigation that terminated on 3 October 2019, are important evidence in support of the proposition that he unlawfully

1      Criminal Proceeds (Recovery) Act, s 53(1)

2      Above n 1, s 55(1).

3      Above n 1, s 5(1), 6(1).

4      Above n 1, s 5(1).

benefited in the required manner. Punishable by life imprisonment, such offending is significant criminal activity. The prospect of it having been undertaken without (unlawful) benefit is remote.

[10]      However, the financial analysis conducted by police firmly establishes the point. Mr Keresoma declared no income to Inland Revenue in the tax years 2017 and 2020. His only declared income in the 2018 and 2019 tax years was in the form of social welfare payments. Analysis of his bank account statements showed no regular spending on day-to-day living costs. In the absence of such spending, I infer that Mr Keresoma was, prior to his arrest in October 2019, living on the cash proceeds of drug dealing.

Maximum recoverable amount

[11]      There  has  been  no  type  1  assets  forfeiture  order  made  in  respect  of  Mr Keresoma’s methamphetamine supplies. The maximum recoverable amount is accordingly that stated in the Commissioner’s application: $191,350.

Does Mr Keresoma have interests in the Designer Goods and Jewellery?

[12]      The Designer Goods and Jewellery were found in Mr Keresoma’s garage along with drug-related items for which pursuant to his guilty pleas he took responsibility. No other person has claimed their ownership in the period of more than three years since they were seized by police. I find that they are owned by Mr Keresoma.

Result

[13]      In light of the above, I grant the Commissioner’s application dated 15 March 2024, making a profit forfeiture order against Mr Keresoma as follows:

(a)the value of the benefit determined in accordance with s 53 of the Act is $191,350;

(b)the maximum recoverable amount determined in accordance with s of the Act is $191,350; and

(c)the property that is to be disposed of in accordance with s 83(1), being property in which the respondent has, or is treated as having, interests is the Designer Goods and Jewellery, described in further detail at paragraph 2(c) of that application.

Johnstone J