Commissioner of Police v Naketoa

[2023] NZHC 921

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-105

[2023] NZHC 921

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

FRANK FAAOLOAGA NAKETOA

Respondent

NORMA LISA WILSON

Interested Party

Hearing:

29 March 2023

Appearances:

C Hodgson for the Applicant

No appearance by or for the Respondent

Judgment:

26 April 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 26 April 2023 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:

Ms S Earl and Mr C Hodgson, Meredith Connell, Office of the Crown Solicitor, Auckland The Respondent

COMMISSIONER OF POLICE v NAKETOA [2023] NZHC 921 [26 April 2023]

[1]                 The Commissioner of Police seeks an assets forfeiture order over $23,920 of cash (the Cash) under s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

Background

[2]                 Mr Naketoa was the subject of an investigation by Police into the supply of methamphetamine on the North Shore of Auckland by senior patched Head Hunter, Elias Gaitau and his associates, including Mr Naketoa.

[3]                 On 15 July 2020, Police conducted a search warrant at 46 Fairclough Road, Beach Haven, Auckland. Mr Naketoa and his partner Ms Wilson (the interested party) were present at the property. Police located and seized a number of items including the Cash and paraphernalia relating to the supply and possession of the controlled substances methamphetamine and cannabis.1

[4]Mr Naketoa was charged and, on 25 March 2022, convicted of:

(a)one representative charge of supplying methamphetamine (12.8 grams);

(b)one representative charge of offering to supply methamphetamine (two grams); and

(c)one charge of conspiring to supply methamphetamine (seven grams).

[5]He was sentenced to eight months’ home detention.

1      The reference to the Cash being seized on 12 October 2021 is incorrect.

[6]                 In this proceeding, the Commissioner applied to the Court for restraining and civil forfeiture orders. At the first call, Woolford J made a restraining order under s 24 of the Act that the Cash is not to be disposed of, or dealt with, other than as provided in the orders; and is to  be  under  the  Official  Assignee’s  custody  and  control.2 The Judge adjourned the application for civil forfeiture orders, stating that at the next call an asset forfeiture order is liable to be made if there is no appearance by or on behalf of Mr Naketoa and Ms Wilson, and directed his minute be sent to them.

[7]The restraining order and minute were served on 10 March 2023.

[8]                 No opposition has been filed and there was no appearance by or for Mr Naketoa or Ms Wilson at the hearing on 29 March 2023.

Applicable principles

[9]Section 50(1) of the Act provides that:3

(1) If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.

[10]Tainted property is defined in the Act:4

tainted property–

(a)means any property that has, wholly or in part, been –

(i)acquired as a result of significant criminal activity; or

(ii)directly or indirectly derived from significant criminal activity; and

(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.

2      Commissioner of Police v Naketoa HC Auckland CIV-2023-404-105, 1 March 2023 (Minute of Woolford J).

3      Criminal Proceeds (Recovery) Act 2009, s 50(1) is subject to s 51 which provides for applications to exclude property from an order on the basis of undue hardship but there is no such application here.

4      Section 5(1).

1. Significant criminal activity is defined in s 6:

1. Meaning of significant criminal activity

   (1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—

   (a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

   (b)from which property, proceeds, or benefits of a value of

   $30,000 or more have, directly or indirectly, been acquired or derived.

   (2)A person is undertaking an activity of the kind described in subsection

   (1) whether or not—

   (a)the person has been charged with or convicted of an offence in connection with the activity; or

   (b)the person has been acquitted of an offence in connection with the activity; or

   (c)the person’s conviction for an offence in connection with the activity has been quashed or set aside.

   (3)Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).

   Discussion

[12]              Although Mr Naketoa and Ms Wilson told Police the Cash belonged to her and was derived from savings from work and refunds from Inland Revenue, I am satisfied on the balance of probabilities that the Cash is tainted property, being property derived directly or indirectly from Mr Naketoa’s supply of methamphetamine. Neither their declared income nor cash withdrawals from their bank accounts could account for the Cash.

[13]Accordingly, an assets forfeiture order in respect of the Cash must be made.

Result

[14]              I make an assets forfeiture order under s 50 of the Act that the $23,920 cash located and seized by Police during a search of 46 Fairclough Road, Beach Haven, Auckland, and interest accrued thereon, vests in the Crown absolutely and is in the Official Assignee’s custody and control.

Gault J