Commissioner of Police v Noble

[2019] NZHC 3488

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-58

[2019] NZHC 3488

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

HIRA CYRIL NOBLE

First Respondent

LUANA MAREE NOBLE
Second Respondent

TOM HIRA NOBLE
Third Respondent

FIRST CREDIT UNION
Interested Party

SLP EVENT MANAGEMENT
Interested Party

EPA TE PAHI RIWAI NOBLE

Interested Party

Hearing:

1 November 2019

Appearances:

R W Jenson and J M Sutton for Applicant First Respondent in person

W T Nabney for Second Respondent M S King for Third Respondent

Judgment:

20 December 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 20 December 2019 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

THE COMMISSIONER OF POLICE v NOBLE [2019] NZHC 3488 [20 December 2019]

Introduction

[1]    The Criminal Proceeds (Recovery) Act 2009 empowers the Commissioner of Police to apply for restraining orders. A Court will grant the application if it is satisfied it has reasonable grounds to believe that the property concerned is tainted property1 or if it has reasonable grounds to believe that the respondents have unlawfully benefited from significant criminal activity.2

[2]“Tainted property” is defined:3

(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.

[3]“Significant criminal activity” is defined:4

(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.

[4]    The Courts have recognised that the Commissioner may seek orders directing the Official Assignee to sell restrained property in order to preserve its value and to ensure that restrained property does not erode in value.5

1      Criminal Proceeds (Recovery) Act 2009, s 24.

2      Section 25.

3      Section 5.

4      Section 6(1).

5      Commissioner of Police v Evans [2015] NZHC 1240.

Background

[5]    In this case, the Commissioner’s on notice application for a restraining order dated 30 April 2018 applied to the following property:

(a)The property situated at 59 Bongard Street, Gate Pa, Tauranga, being all that land comprised and described in Certificate of Title SA21C/479, South Auckland Land Registration District, being 952 square meters more or less, being Lot 7 DPS22546, excluding any interest of The Trustees for the time being of Credit Union North under mortgage 5945043.4;

(b)2008 Hummer H3, registration number HANG1;

(c)2012 Seadoo GTI 130 jet ski. Hull/VIN number YDV42978E212 on a galvanised trailer registered number 1S394;

(d)2009 LVVTA Ultima custom built motorcycle, registration number A2GAK;

(e)2011 Holden HSV GTS sedan, registration number FUE854;

(f)2016 Holden Colorado 2.8 Diesel 4WD, registration number JYR444;

(g)A 1999 Harley Davidson Softail Heritage Classic, registration number 28UCF;

(h)All other property of the respondents wherever located.

The third respondent

[6]    Since filing the application the Commissioner has reached agreement with the third respondent, Mr Tom Noble. The third respondent was the subject of the application for a restraining order in respect of three of the vehicles:

(a)2011 Holden HSV GTS sedan, registration number FUE854 (the Holden);

(b)2016 Holden Colorado 2.8 Diesel 4WD, registration number JYR444 (the Colorado);

(c)A 1999 Harley Davidson Softail Heritage Classic, registration number 28UCF (the Harley Davidson).

[7]    It is agreed that the on notice restraining orders can be made in respect of all three vehicles and the sale order application with respect to the Holden and the Harley Davidson can also be granted on the basis that the Colorado is returned to the third

respondent for his use in attending medical appointments and prescribed fitness activity.

[8]    I approve the agreement made between the Commissioner and the third respondent. I make the orders in the terms of the draft order attached to the joint memorandum of counsel for the  Commissioner  and  the  third  respondent  dated  31 October 2019. They may be sealed accordingly.

The first and second respondents

[9]    The balance of the judgment is concerned with the property associated with the first and second respondents, being the property situated at 59 Bongard Street and the first three vehicles listed.

[10]   There is no substantive objection to the application for restraining orders.6 I have read the affidavits filed by the Commissioner in support of the applications. I am satisfied there are reasonable grounds to believe that the property is tainted property. Further, I am satisfied there are reasonable grounds to believe that the first and second respondents have unlawfully benefited from significant criminal activity.7

[11]   I will not go into detail given the lack of substantive opposition but, in short, I am satisfied by the evidence that the first and second respondents have been the subject of an ongoing investigation into drug dealing activities by them and associated money laundering. There is significant evidence of their involvement in supplying synthetic cannabis. There is significant evidence that the level of benefit acquired by the respondents is well over $30,000. There is significant evidence they were involved in money laundering to dispose of cash acquired from dealing in synthetic cannabis.

[12]   There is evidence that 59 Bongard Street is tainted property because large cash deposits have been used to reduce the mortgage. There are reasonable grounds to believe that the deposits were likely funded, at least in part, from the sale of synthetic cannabis. Further, grounds for making a restraining order include that it is part of the

6      Both the first and second respondents challenged the Court’s jurisdiction on Maori sovereignty grounds. The challenges were not pursued and could not succeed.

7      Criminal Proceeds (Recovery) Act 2009, s 25.

property of the respondents, being persons who have unlawfully benefited from significant criminal activity.

[13]I make an order that:

·     59 Bongard Street, Gate Pa, Tauranga, being all that land comprised and described in Certificate of Title SA21C/479, South Auckland Land Registration District, being 952 square meters more or less, being Lot 7 DPS22546, excluding any interest of The Trustees for the time being of Credit Union North under mortgage 5945043.4;

·     2008 Hummer H3, registration number HANG1;

·     2012 Seadoo GTI 130 jet ski. Hull/VIN number YDV42978E212 on a galvanised trailer registered number 1S394;

·     2009 LVVTA Ultima custom built motorcycle, registration number A2GAK;

(a)Are not to be disposed or, or dealt with, other than as is provided for in the restraining order; and

(b)Are to be in the Official Assignee’s custody and control.

[14]   I decline to make an order restraining “all other property of the respondents wherever located”. It is too wide. There is no evidence of other property of substance the restraining of which would promote the purposes of the Act.

Sale Orders

[15]   The Commissioner applies for sale orders in respect of the three vehicles. This is on the basis of them being depreciating assets and selling them is the best way to capture their value.

[16]   The first and second respondents have filed notices of opposition but taken no further steps.

[17]   The Commissioner’s evidence in support of the application is contained in the affidavit of Bruce Ronald Russell sworn on 31 January 2019. Mr Russell is a police employee with the designation of Investigator. He is part of an Asset Recovery Unit and holds extensive delegations of the Commissioner’s powers and functions under the Act.

[18]   Mr Russell deposes that the cost to the Commissioner to have the Official Assignee store vehicles is $5.80 per day for a motorcycle and $13.50 per day for the other vehicles. As at 31 January 2019 total costs incurred for storage of all the vehicles was $17,669.60. I infer the total cost to date will be almost double that amount.

[19] as:	Mr	Russell deposes that independent valuers assessed the values of the vehicles
(a)	2008 Hummer H3, registration number HANG1 - $30,000
(b)	2012 Seadoo GTI 130 jet ski and trailer registered number 1S394 -
$7,500
(c)	2009 LVVTA Ultima motorcycle, registration number A2GAK -
$7,500
[20]	Mr	Russell further deposes:
5.1	Each of the vehicles in the custody and control of the Official Assignee is expected to depreciate in value over the passage of time. There is no expectation any of the vehicles, none of which could be described as collectors’ items or vehicles with special characteristics, will appreciate in value.
[21]	Mr	Nabney for the second respondent submitted that Mr Russell’s evidence

should not satisfy me the vehicles are depreciating. Mr Russell expressed an opinion but does not qualify himself as an expert.

[22]              The first respondent addressed me informally saying that the Ultima motorcycle is custom built for him and is a unique vehicle.

[23]I am satisfied:

(a)That the significant storage costs are a factor going towards the need to sell the vehicles to capture as much of their value as possible.

(b)That Mr Russell’s evidence is reliable given his occupation and its accord with common sense.

[24]I make the sale orders in the terms sought.

[25]I make no order for costs.

Brewer J