Commissioner of Police v Moses

[2020] NZHC 3366

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV 2020-416-11

[2020] NZHC 3366

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

VALENTINE ATIRIANA MOSES

Respondent

On the papers
Judgment:	16 December 2020

JUDGMENT OF MALLON J

[1]                 The Commissioner of Police applies for a forfeiture order. The order is sought in respect of $10,530 cash seized from the respondent’s address on 31 January 2018.

[2]                 The respondent was served with the application and directed to file and serve any notice of opposition within a two week timeframe on the understanding that if she chose not to do so, the application could be determined on the papers. That timeframe has expired, no notice of opposition has been filed, and the respondent has not otherwise indicated any intention to participate in the proceeding.

[3]I am satisfied that the application can be determined on the papers.

[4]                 The application arises out of a police operation targeting methamphetamine dealing in Gisborne during 2017 and early 2018. The investigation terminated in two phases on 23 and 31 January 2018 with the execution of search warrants at various

THE COMMISSIONER OF POLICE v MOSES [2020] NZHC 3366 [16 December 2020]

addresses. The respondent was arrested on 31 January 2018. At this time, the Police located $10,280 cash hidden in a guitar case, and 10.8 g of methamphetamine in her handbag, together with an additional $250 cash.

[5]                 The respondent subsequently pleaded guilty to a representative charge of possession of methamphetamine for the purposes of supply. She is presently serving a sentence of seven years, five months’ imprisonment.

[6]                 An assets of forfeiture order may be made if the High Court is satisfied on the balance of probabilities that specific property is tainted property.1 Tainted property means any property that has been acquired as a result of, or derived from, significant criminal activity.2 Significant criminal activity means an activity that, if charged as a criminal offence, would be punishable by a term of at least five years’ imprisonment.3

[7]                 The respondent’s conviction for possession of methamphetamine for supply constitutes significant criminal activity. The evidence is that the respondent had legitimate annual income averaging only $17,988.03 for the six year preceding her arrest. It has not been contested that the respondent was generating significant income from methamphetamine dealing, and no alternative legitimate explanation has been proffered for the presence of the cash, which was located at the address linked to the methamphetamine dealing.

[8]                 I am therefore satisfied that it is more likely than not that the cash comprises the proceeds of methamphetamine dealing.

[9]                 Accordingly, I make an order that the cash totalling $10,530 seized from the respondent’s address on 31 January 2018 vests in the Crown absolutely and is to be in the Official Assignee’s custody and control.

Mallon J

1      Criminal Proceeds(Recovery) Act 2009, s 50(1).

2      Section 5.

3      Section 6.