Commissioner of Police v Paora
[2020] NZHC 380
•3 March 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV 2016-470-000211
[2020] NZHC 380
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
STACY WALTON DENNIS PAORA
First Respondent
MARK TANE MORGAN
Second Respondent
DAYTONA BYRON WITERI RANUI
Third Respondent
…./continued
Hearing: In Chambers (on the papers) Judgment:
3 March 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 04 March 2020 at 10.00am Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Pollett Legal Ltd, Tauranga
R M Mansfield, Barrister, Auckland/Lorne Chambers S N B Wimsett, Barrister, Auckland
Copy to:
E L van Son, Barrister, Auckland
THE COMMISSIONER OF POLICE v PAORA [2020] NZHC 380 [3 March 2020]
KRISTEL MONIQUE HORO-PHILLIPS
Fourth Respondent
ROBERT RAWIRI PARATENE PAORA
Fifth Respondent
WESTPAC NEW ZEALAND LIMITED
Interested Party
ANZ BANK NEW ZEALAND LIMITED
Interested Party
Introduction
[1] The parties seek the Court’s approval of a settlement under s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).
Background
[2] This proceeding commenced in December 2016 when the Commissioner of Police (the Commissioner) obtained without notice restraining orders in relation to a number of items of property of the first respondent.
[3] Since the initial orders were made, they have been renewed and refreshed and sale orders have also been made in relation to various items of property.
[4] The first respondent was to face trial on criminal charges related to these proceedings in February 2020. The charges have been resolved by way of the first respondent pleading guilty to the following charges:
(a)one charge of participating in an organised criminal group between 1 May 2015 and 20 December 2016, which group had a shared objective of obtaining material benefits from the commission of offences against s 6 of the Misuse of Drugs Act 1975 and knowing that his conduct contributed to the sale and supply of methamphetamine, a Class A controlled drug;1
(b)11 charges (five representative) of supplying methamphetamine between 17 November 2015 and 1 December 2016 in quantities ranging from 2 or 3 grams to a total of 317 grams;2
(c)four charges of possessing methamphetamine for the purpose of supply between 13 October 2016 and 20 December 2016 in quantities ranging from 112 to 1020 grams;3one charge of conspiring to deal in ephedrine,
1 Crimes Act 1961, s 98A.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and (2).
3 Sections 6(1)(f) and 2; and Crimes Act 1961, ss 66(1) and (2).
(d)a Class B controlled drug, between 1 October 2016 and 20 December 2016;4 and
(e)one charge of unlawful possession of a pistol in 11 October 2019.5
Settlement arrangement
[5] As part of the resolution of the criminal proceedings, the first respondent and the Commissioner have also agreed a resolution of all matters in relation to forfeiture of property in connection with the significant criminal activity to which the criminal charges related.
[6] The parties have accordingly filed a joint memorandum, seeking approval of that settlement arrangement and the making of an assets forfeiture order in relation to all assets known by the Commissioner to be the property of the first respondent.
[7] The first respondent agrees and accepts that all of the items of property referred to in the application are his property and that he knows of no other person with a legitimate interest in the property referred to.
Other potential interested parties
[8] I am satisfied that those parties who have previously been recorded as respondents or interested parties and/or who have taken steps in this proceeding (being Kristel Horo-Phillips, Mark Morgan, Daytona Ranui, Robert Paora and Hayden Kirkwood) have been advised of the arrangement between the Commissioner and the first respondent, abandon any previous claim to the items of property and consent to the orders sought.
Unrecovered property
[9] The parties advise that two items of property – the Harley Davidson motorcycle (referred to at paragraph 4(xiii) of the application) and the 1997 Toyota truck (referred to at paragraph 4(iii) of the application) have not been recovered to date and their
4 Misuse of Drugs Act 1975, s 6(2A)(b).
5 Arms Act 1983, s 50(1)(a); and Crimes Act 1961, ss 66(1) and (2).
current location is unknown. The Commissioner still seeks to have those items of property included in the forfeiture order so that if they are recovered they can be dealt with by the Official Assignee promptly. The first respondent has undertaken to assist the Commissioner further if he receives any information as to the whereabouts of those two items of property.
Order
[10] I am satisfied that the settlement arrangement is consistent with the purposes of the Act, in that:
(a)it provides for the forfeiture of property derived, directly or indirectly, from significant criminal activity;6
(b)it diminishes the profit obtained by the first respondent from the criminal activity;7 and
(c)the forfeiture of the property has the potential to deter significant criminal activity in the future.8
[11] I am also satisfied that the Court’s approval of the settlement is in the interests of justice as it provides for the prompt forfeiture of the relevant property without further time or costs being incurred by the applicant, respondents or Official Assignee. The settlement will also ensure that the matter does not unnecessarily burden the Court’s resources further.
[12]I therefore make the following, orders, by consent:
(a)the settlement arrangement is approved by this Court pursuant to s 95 of the Act;
6 Criminal Proceeds Act 2009, s 3(1)(a).
7 Section 3(2)(a).
8 Section 3(2)(b).
(b)the property referred to in the asset forfeiture application vests in the Crown absolutely and is to be in the Official Assignee’s custody and control; and
(c)no issue of costs arises as between the Commissioner, the first respondent and the interested parties with regard to this application.
[13] In accordance with the agreement of the parties, these are the final orders of the Court in this proceeding.
Application for further order associated with restraining order
[14] After the parties had reached the agreement referred to above, counsel for the first respondent and the interested party, Ms Kristel Horo-Phillips, advised the Commissioner that they no longer intended to make mortgage repayments in respect of the property at 12 Heale Street, Matata.
[15] As a result, mortgage arrears will continue to accrue pending the sale of the property which (due to s 82(2) of the Act) will not take place for some time. The Commissioner wishes to ensure that the value of the property does not erode over the next period, thereby reducing the amount ultimately to be forfeited to the Crown, and pursuant to s 33 of the Act seeks a further order, associated with the restraining order, directing the Official Assignee to sell the property at 12 Heale Street.
[16] There is precedent for making such an order although the property is the subject of a forfeiture order.9
[17] I make an order under s 35(e)(v) of the Act, in the terms contained in the Commissioner’s application of 27 February 2020, directing the Official Assignee to sell the property at 12 Heale Street, Matata immediately.
9 R v Sharp HC Rotorua CRI 2010-063-4641, 22 July 2011 at [22]. Commissioner of Police v Skiffington [2017] NZHC 1687 provides an example of another case where the Court ordered the sale of a house because a mortgage was subject to an increase in arrears.
Gwyn J
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