Commissioner of Police v Marsters

[2024] NZHC 677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2251

[2024] NZHC 677

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

CHAMP BLYND MARSTERS

Respondent

Hearing:

22 March 2024

Appearances:

A Mackenzie for applicant

J M Matheson for respondent (appearance excused

Judgment:

25 March 2024

JUDGMENT OF JOHNSTONE J

(application for type 1 asset forfeiture orders)

Solicitors:

MC, Auckland

Douglas Burgess, Auckland

COMMISSIONER OF POLICE v MARSTERS [2024] NZHC 677 [25 March 2024]

[1]On 5 July 2022, the police found multiple packages of cannabis weighing over

1.47 kilograms, when executing a search warrant at the home of Champ Marsters in Flat Bush, Auckland. They also found $1,050 cash and 12 motor vehicles, including a 2008 Nissan GT-R, and a 2017 Harley-Davidson motorcycle.

[2]        The cash, and the Nissan and the Harley-Davidson have since been restrained under the Criminal Proceeds (Recovery) Act 2009. Indeed, the two vehicles have been sold, and their net proceeds of sale held by the Official Assignee pending the outcome of Mr Marsters’ criminal prosecution on a charge of possessing the cannabis for the purpose of sale.

[3]        Mr Marsters pleaded guilty that charge, and on 19 December 2023 was sentenced to a term of home detention.

[4]        The Commissioner of Police now applies for orders that the cash, the vehicle sale proceeds, and any accrued interest, are forfeited.

[5]        Ms Matheson acted as counsel for Mr Marsters during the restraint phase of this proceeding. She indicated that Mr Marsters was minded to oppose the Commissioner’s forfeiture application. But as matters transpired she was not instructed to file an opposition, and the matter proceeded on 22 March 2024 by way of unopposed originating application under Part 19 of the High Court Rules 2016.

The threshold

[6]        Under s 50(1) of the Act, I must make a type 1 assets forfeiture order if satisfied on the balance of probabilities that the cash and vehicle sale proceeds are tainted property.

[7]        Tainted property is property that has, wholly or in part, been acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity.1 Significant criminal activity is activity engaged in by a person that if proceeded against as a criminal offence would amount to offending that consists of,

1      Criminal Proceeds (Recovery) Act 2009, s 5(1).

or includes, one or more offences punishable by a maximum term of imprisonment of five years or more, or from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.2

The Commissioner’s case

[8]        The Commissioner’s case is that for many years prior to the police visit to his home in July 2022, Mr Marsters had engaged in significant criminal activity.

[9]        Mr Marsters was unemployed at the time of the search warrant, and had been unemployed for the previous seven years, declaring no income to Inland Revenue during that period. He did, however, receive 48 cash deposits from unknown sources totalling $19,272. Mr Marsters’ partner is a full-time caregiver to their three children. Her only declared income, for the seven years leading up to 5 July 2022, came from Ministry of Social Development benefit payments.

[10]      Across the seven years leading up to 5 July 2022, Mr Marsters’ identified expenditure exceeded the total deposits into his bank accounts by $10,008.11. However, comparison with the level of spending expected of a household of similar composition highlights that Mr Marsters’ identified household expenditure is much lower.  After  accounting  for  all  cash  withdrawals  from  the  bank  accounts  of  Mr Marsters and his partner, to account for the possibility that those withdrawals funded household expenditure, there remains an unexplained shortfall of around

$32,000.

[11]      Prior to Mr Marsters’ conviction stemming from July 2022, he was convicted of cultivating cannabis in March 2018. The police had executed a search warrant at Mr Marsters’ then home address, and found growing cannabis plants, dried cannabis and just over $8,000 in cash. Mr Marsters was also convicted of possessing cannabis for sale and supplying methamphetamine in 2015. He is a patched member of the Tribesmen gang.

2      Section 6(1).

The cash

[12]      The police found $1,030 of the cash in a plastic bag on a table in the garage, next to a desk on which was an open “tinnie” and tinfoil, some of which had been cut into squares suitable for wrapping “tinnies”. The other $20 was found in one of nine ziplock bags, each containing 30 cannabis tinnies, in a vehicle parked near the home.

The vehicles

[13]      The Nissan, the Harley-Davidson, and five other motorcycles (two unregistered) were parked in the garage. Five other vehicles were parked either on the property or on the roadside immediately outside. None of these vehicles were registered in Mr Marsters’ name.

[14]      The Nissan and a Holden Cruze were registered in the name of Mr Marsters’ partner. In August 2019, Mr Marsters spoke with a police officer about the Nissan as it sat next to them on the driveway of his then home, saying “look at my new ride”, and that it was an $80,000 car. At that time, the vehicle was registered to another Tribesmen patched member. Since then, police have seen Mr Marsters driving the Nissan, and it has been seen on at least seven different occasions parked at his home. It commenced to be registered to Mr Marsters’ partner in May 2020.

[15]      The Harley-Davidson, the three other registered motorcycles found in the garage in July 2022, and two of the vehicles parked outside, were registered in the name of Mr Marsters’ brother, an associate of the Tribesmen and Killer Beez gangs. When, in December 2017, Auckland Motorcycles & Power Sports Limited supplied the Harley-Davidson and another of the motorcycles found in the garage, it agreed to accept a total of $42,000 in cash as their sale price. The police saw Mr Marsters riding the Harley-Davidson on at least six different occasions between December 2017 and October 2020. And it was seen in the shed at Mr Marsters’ then home during the execution of the search warrant in March 2018.

Are the cash and vehicle sale proceeds tainted property?

[16]      I am satisfied that the cash and the vehicle sale proceeds are tainted property. It is more likely that not that Mr Marsters acquired the vehicles, largely for his own use, paying for them with cash he had derived from cannabis or other drug sales and arranging for them to be held in the registered ownership of his partner and brother in an attempt  to  reduce  their  prospect  of  their  forfeiture.  The  above  outline  of  Mr Marsters’ repeated drug offending, and of his apparently cash-dominated lifestyle, together with the extent to which the vehicles have been shown to be associated with him, amply support this proposition.

[17]      The cash was found with cannabis which Mr Marsters admitted he held for the purpose of sale, and along with the tools of that trade. It is more likely than not to have been derived from prior sales.

Result

[18]I make the following type 1 assets forfeiture order under s 50 of the Act:

(a)the property described at paragraph 3(c) of the Commissioner’s application dated 18 January 2024 vests in the Crown absolutely; and

(b)is in the custody and control of the Official Assignee.

Johnstone J