Commissioner of Police v Marsh

[2021] NZHC 1302

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-000081

[2021] NZHC 1302

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

NATHAN STEWART MARSH

Respondent

Hearing:	On the papers
Appearances:	R W Donnelly for Applicant No appearance by Respondent
Judgment:	3 June 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 June 2021 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]        On 17 December 2020, the Commissioner obtained, on a without notice basis, restraining orders in respect of the following property of the respondent, Mr Marsh:

(a)a 2018 Holden Trailblazer, registration number LWD195, registered in the name of the respondent that was purchased by him on 9 June 2020;

COMMISSIONER OF POLICE v NATHAN STEWART MARSH [2021] NZHC 1302 [3 June 2021]

(b)a 23-foot fibreglass cabin cruiser boat, named “Skybird” that was purchased by the respondent in or around April 2020; and

(c)a 1976 homebuilt boat trailer, registration number 631OG that was purchased by the respondent, together with the 23-foot fibreglass cabin cruiser boat.

(The restrained property).

[2]        The on notice application was filed on the same date and sought restraining orders over the restrained property but, in addition, over $13,000 seized from the respondent from two residential addresses he was associated with. It was supported by an affidavit from  Sally  Faye  Pollock,  a  specialist  investigator  within  the  New Zealand Police, based in Christchurch, outlining the findings of the Police investigation which lead to the application being made.

[3]Mr Marsh was served with the on notice application for restraining orders on

12  January  2021  along  with  advice  that  the  application  would  be  called  on  22 February 2021.

[4]        Mr Marsh has taken no steps to oppose the on notice application, and the matter was set down for a formal proof hearing in the High Court at Invercargill on Tuesday, 1 June 2021 at 10 am.1

[5]        On 10 May 2021, the applicant made an on notice application for further orders relating to the restrained property. Specifically, the applicant sought orders allowing the Official Assignee to sell the restrained property on the grounds that there are ongoing storage, maintenance and insurance costs involved in storing the restrained property, along with a concern that they will depreciate in value.

1      A hearing which I subsequently directed would be determined on the papers in the absence of a notice of opposition being filed by Mr Marsh.

[6]        The  information  supporting  this  application  includes  evidence  that  on  19 March 2021, Constable Katie Buxton met with the respondent and he provided a written statement to her which included the following:

I consent to the Official Assignee selling the 2018 Holden Trail Blazer vehicle, registration LWD195, and the 23 ft fibreglass cabin cruiser boat named “Skybird” on a 1976 home-built boat trailer, registration 631OG, early in order to preserve the value of the property.

Discussion

[7]        The Commissioner’s application for on notice restraining orders is made in reliance on ss 21, 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act). The grounds for the application are:

(a)there are reasonable grounds to believe the property is tainted property;

(b)there are reasonable grounds to believe the respondent has unlawfully benefited from significant criminal activity and the property is part of the respondent’s property.

[8]The significant criminal activity alleged is:

(a)selling of a Class C controlled drug, namely cannabis plant, pursuant to ss 6(1)(e) and (2)(c) of the Misuse of Drugs Act 1975, which carries a maximum penalty of eight years’ imprisonment; and

(b)possession of a Class C controlled drug, namely cannabis plant, for the purpose of sale, pursuant to s 6(1)(f) and 2(c) of the Misuse of Drugs Act 1975, which again carries a maximum penalty of eight years’ imprisonment.

[9]        As Ms Pollock explains in her affidavit dated 16 December 2020, in the course of executing four searches, police recovered approximately two kilograms of cannabis at Mr Marsh’s address in Queenstown and at a family member’s address in Ettrick, Central Otago. The income capable of being generated from this amount of cannabis varies according to the unit of sale. Given the evidence outlined in Ms Pollock’s

affidavit that Mr Marsh deals predominantly in $50 bags of cannabis, the value     Mr Marsh could have realised from the cannabis seized was estimated to be

$33,769.40. Mr Marsh has entered a plea of guilty to four charges of sale/give/supply/administer/deal cannabis plant, and four charges of possess for supply cannabis plant, and was due to appear in the Invercargill District  Court on  22 December 2020 for sentencing on those charges.

[10]      Ms Pollock’s affidavit also sets out reports she has received from the Inland Revenue Department detailing Mr Marsh’s earnings and tax paid. Mr Marsh has declared income from the Ministry of Social Development and from contracting work. The amounts are modest, ranging from $5,023 in the tax year 2021 to $33,483 in the tax year 2018. However, Mr Marsh’s bank accounts show a history of cash deposits well in excess of declared income. As Ms Pollock explains “[t]he origin or source of the cash deposits is unable to be verified or accounted for and remains unexplained”. Significantly  Ms  Pollock  notes  that  for  the  tax  year  dated  1  April  2019  to   31 March 2020, Mr Marsh received a total of $11,679.54 in legitimate income and says “[t]his amount of income is not conducive with the high value vehicle purchases Mr Marsh conducted in the same time period” (being the vehicle, boat and trailer), which are the subject of the without notice restraining orders.

[11]      I am satisfied, based on the evidence given by Ms Pollock, that there are reasonable grounds to believe the respondent has unlawfully benefited from significant criminal activity and/or that the restrained property and the $13,000 in cash, are “tainted property” as defined by the Act. This is because they were acquired, at least in part, as a result of significant criminal activity being cannabis dealing. On notice restraining orders should be made.

[12]      The Commissioner also seeks an order for the early sale of the restrained property to preserve its value, and this is consented to by the respondent. I agree that an early sale order should be made pursuant to s 35(e)(v) of the Act for the reasons given in the supporting affidavit, allowing the Official Assignee to sell the restrained property.

Result

[13]      I make the orders sought in the application for on notice restraining orders dated 17 December 2020 and in the on  notice  application for further orders dated  10 May 2021.

Solicitors:
Preston Russell Law, Invercargill

Copy To:
N S Marsh, Respondent