Commissioner of Police v Newby

[2013] NZHC 2923

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004200 [2013] NZHC 2923

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDRHYAN MARK NEWBY Respondent

Hearing:                   6 November 2013

Appearances:           D M Robinson for the Applicant

No appearance for the Respondent

Judgment:                6 November 2013

ORAL JUDGMENT OF GILBERT J

THE COMMISSIONER OF POLICE v RHYAN MARK NEWBY [2013] NZHC 2923   [6 November 2013]

[1]      The Commissioner applies for a profit forfeiture order pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009.  Mr Newby has taken no steps to oppose the application.

[2]      The Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that Mr Newby has unlawfully benefitted from significant criminal activity within the relevant period and has interests in property.

[3]      Mr Newby has engaged in significant criminal activity as defined in s 6 of the Act during the relevant period.  He pleaded guilty on 9 May 2013 to possession of methamphetamine for supply. This offence, which was committed in April 2012, is punishable by life imprisonment.  Mr Newby earlier pleaded guilty to possession of methamphetamine and possession of utensils capable of being used for the manufacture of methamphetamine. These offences were committed in June 2007.

[4]      The police executed a search warrant at Mr Newby’s residential address in April 2012.  They found $39,840 in cash in a black canvas bag.  Mr Newby told the police that the cash was his.  Mr Newby has been in receipt of a benefit from the Ministry  of  Social  Development  since  2006.    His  income  for  the  year  ended

31 March 2012 was $13,084.76.  The Commissioner has conducted enquiries with the major banks in New Zealand.   Mr Newby does not have a bank account.   He previously had an account with the ASB but this was closed in August 2006.  His benefit has been paid to an account belonging to his mother, in respect of which she is the sole signatory.

[5]      On the basis of this evidence, which is not contradicted, I am satisfied that Mr Newby has unlawfully benefitted from significant criminal activity.  The value of the benefit is presumed to be the value stated in the Commissioner’s application, being the sum of $39,840.1   The presumption may be rebutted by Mr Newby on the balance of probabilities but he has chosen not to attempt to discharge that onus.

[6]      In these circumstances, the requirement in s 55(1)(b) of the Act is satisfied and I am therefore obliged to make a profit forfeiture order.

1 s 53(1) of the Act.

[7]      On 9 October 2013, Brewer J made an order pursuant to s 58 of the Act that the cash of $39,840 seized by the police is to be treated as though Mr Newby had an interest in that property.  In these circumstances, the requirement in s 55(1)(b) of the Act is satisfied and I am therefore obliged to make a profit forfeiture order.

[8]      I therefore make a profit forfeiture order in terms of s 55 of the Act.   The value of the benefit determined in accordance with s 53 is the sum of $39,840.  The maximum recoverable amount determined in accordance with s 54 is the sum of

$39,840.  The property to be disposed of is the sum of $39,840 being the cash seized

by the police.

M A Gilbert J