Commissioner of Police v Marcum

[2024] NZHC 1828

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-0126

[2024] NZHC 1828

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KENNETH RICHARD JUNIOR MARCUM

Respondent

Hearing:	3 July 2024
Appearances:	KRL Guthrie for applicant No appearance for respondent
Date of judgment:	5 July 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 5 July 2024 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Hamilton

Copy to:

Respondent

COMMISSIONER OF POLICE v MARCUM [2024] NZHC 1828 [5 July 2024]

[1]                 As duty judge, I have the Commissioner’s on notice application for restraining and further orders dated 20 May 2024, seeking to place a motorcycle and cash into the hands of the Official Assignee, and for his sale of the motorcycle.1

[2]                 The application is supported by 9 and 14 May 2024 affidavits sworn by a police officer and an accountant, contending the property is tainted as having been obtained by Mr Marcum from his significant criminal activity in laundering money and/or as a participant in an organised criminal group,2 with which he presently is charged.

[3]                 The application was served on Mr Marcum on 21 May 2024. He has taken no step in opposition to the application and made no appearance on its call in the civil list before me on 3 July 2024.

Law

[4]                 If I am satisfied I have reasonable grounds to believe the property is “tainted property” — that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity3 — I may make a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.4

[5]                 On application, I may, if I consider it appropriate, make further orders in relation to the restrained property, including (without limitation) to direct the Official Assignee to sell restrained property to preserve its value.5

Discussion

[6]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.6 ‘Significant

1      Criminal Proceeds (Recovery) Act 2009, ss 21, 24 and 34.

2      Money laundering: Crimes Act 1961, s 243(2); maximum penalty of seven years’ imprisonment, and participation in organised criminal group: Crimes Act, s 98A; maximum penalty of ten years’ imprisonment.

3      Criminal Proceeds (Recovery) Act, s 5 (definition of “tainted property”).

4      Section 24.

5      Sections 34 and 35(e)(v).

6      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.7 When restrained property is depreciating in value, a sale order may be appropriate to preserve that value.8 Holding costs may be considered in the exercise of the discretion, if sale otherwise is appropriate to preserve the restrained property’s value.9

[7]                 I am satisfied, on the basis of the police officer’s and accountant’s affidavits, I have reasonable grounds to believe the property is tainted property, as acquired or derived by Mr Marcum in connection with significant criminal activity of money laundering, and/or his participation in an organised criminal group involved in obtaining material benefits from the manufacture and supply of methamphetamine,10 or in any event as so-obtained property with a value exceeding $30,000.

[8]                 I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining order sought.

[9]                 Given likely delay in determining forfeiture, I also consider it appropriate to direct the Official Assignee to sell the motorcycle — which presently is valued at

$20,000, but incurring storage costs and depreciating to diminish its value by about 30 per cent per annum — to preserve its value in the hands of the Official Assignee.

Result

[10]             I order in terms of paras 2–3 and 5–6 of the Commissioner’s 20 May 2024 application.

—Jagose J

7      Criminal Proceeds (Recovery) Act, s 6(1).

8      McQuade v Commissioner of Police [2024] NZCA 46 at [26].

9 At [27].

10     Misuse of Drugs Act 1975, s 6(1) and (2) and sch 1; maximum penalty of life imprisonment.