Commissioner of Police v Maiai

[2013] NZHC 2921

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004115 [2013] NZHC 2921

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDCHRISTOPHER TAULAGO MAIAI Respondant

Hearing:                   6 November 2013

Appearances:           D M Robinson for the Applicant

No appearance for the Respondent

Judgment:                6 November 2013

ORAL JUDGMENT OF GILBERT J

THE COMMISSIONER OF POLICE v MAIAI  [2013] NZHC 2921 [6 November 2013]

[1]      The Commissioner applies for a profit forfeiture order pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009.  Mr Maiai has taken no steps to oppose the application.

[2]      The Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that Mr Maiai has unlawfully benefitted from significant criminal activity within the relevant period and has interests in property.

[3]      Mr Maiai has engaged in significant criminal activity as defined in s 6 of the Act.    He was convicted in April 2013 of selling methamphetamine and pseudoephedrine.   These offences, which were committed in June 2012, are punishable by life imprisonment and 14 years’ imprisonment respectively.    He is currently serving a four year term of imprisonment in relation to these offences.

[4]      When Mr Maiai was stopped by the police on 3 June 2012, he was found to have over $62,900 in cash in his car.  In addition, the police found receipts for cash payments of in excess of $9,600.  The Commissioner has been unable to find any legitimate income source to explain this cash.   Mr Maiai received various WINZ benefits from 1991 to 2008 which provided him with a total income of just over

$45,800. He has not received any benefit since 28 December 2008 and has not had a bank account with any major trading financial institution in New Zealand since June 2010.

[5]      On the basis of this evidence, which is not contradicted, I am satisfied that Mr Maiai has unlawfully benefitted from significant criminal activity.  The value of the benefit is presumed to be the value stated in the Commissioner’s application,1 being the sum of $163,013.30.  The presumption may be rebutted by Mr Maiai on the balance of probabilities but he has chosen not to attempt to discharge that onus.

[6]      On 9 October 2013, Brewer J made an order pursuant to s 58 of the Act that the cash of $62,913.30 seized by the police having been found in Mr Maiai’s car on

3 June 2012 and further cash of $100 taken from him following his  arrest the

following day, is to be treated as though Mr Maiai had an interest in that property.  In

1 s 53(1) of the Act.

these circumstances, the requirement in s 55(1)(b) of the Act is satisfied and I am therefore obliged to make a profit forfeiture order.

[7]      I therefore make a profit forfeiture order in terms of s 55 of the Act.   The value of the benefit determined in accordance with s 53 is the sum of $163,013.30. The maximum recoverable amount determined in accordance with s 54 is the sum of

$163,013.30.  The property to be disposed of is the sum of $63,013.30 being the two

cash sums taken by the police.

M A Gilbert J