Commissioner of Police v Petersen
[2018] NZHC 1456
•18 June 2018
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2016-470-000212
[2018] NZHC 1456
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
JOSHUA PETERSEN
First Respondent
GAYNE TUITONA HUIRAMA
Second RespondentJARVIS TOHU WINE
Third Respondent
Hearing: 15 May 2018 Appearances:
R W Jenson for Applicant
No appearance for First Respondent B T Nabney for Second Respondent No appearance for Third Respondent
Judgment:
18 June 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 18 June 2018 at 1.30 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………
COMMISSIONER OF POLICE v PETERSEN & ORS [2018] NZHC 1456 [18 June 2018]
Introduction
[1] Following a police investigation into the manufacturing and supply of methamphetamine in the Bay of Plenty region the Commissioner of Police formed the view that the respondents were engaged in significant criminal activity for the purposes of the Criminal Proceeds (Recovery) Act 2009 (CPRA). He obtained restraining orders in respect of two vehicles on the ground that the respondents had benefited from significant criminal activity and, in respect of one of the vehicles, that it is tainted property. Through oversight the Commissioner did not seek to extend the orders and they, together with associated orders made subsequently, have expired.1 The Commissioner has applied for fresh orders in respect of the same property.
[2] The application was heard by way of telephone conference on 15 May 2018. All the respondents had been served. Only Mr Huirama had taken steps; he had instructed Mr Nabney to appear. However, Mr Nabney had been unable to obtain instructions as to whether Mr Huirama intended to oppose the application. I have now received a memorandum from counsel confirming Mr Huirama’s consent and therefore proceed to deal with the application.
[3]The original orders were made by Edwards J on 4 April 2017 in respect of:
(a)A 2011 Toyota Ute, registration number #GBF943; and
(b)A 2012 Holden Ute, registration number #JET205.
[4] Edwards J also directed that the Official Assignee was to sell the 2011 Toyota Ute pursuant to s 35(3)(v) of the Criminal Proceeds (Recovery) Act 2009, and the proceeds of that sale were to be restrained property in accordance with s 36(4) of the Criminal Proceeds (Recovery) Act 2009.
[5] Subsequently, on 11 December 2017, Muir J ordered the sale of the 2012 Holden Ute.
1 Criminal Proceeds (Recovery) Act 2011, s 37(3).
[6] The orders by Edwards J were made at the same time as orders were made in relation to another proceeding, on the basis that the orders arose from the same factual circumstances. Messrs Petersen, Huirama and Wine, the respondents in this proceeding (CIV ending “212”), were allegedly involved in the same offending as Messrs Paora, Morgan and Ranui, who are the respondents in the related proceeding (CIV ending “211”).
[7] I note also that in relation to this matter, UDC Finance Ltd has recently been identified as having an interest in the 2012 Holden Ute. UDC is owed a debt of
$29,842.29 which is secured against the vehicle. I will explain this debt in more depth later, but record UDC’s interest.
Jurisdiction
[8] A restraining order may be made if the Court is satisfied that it has reasonable grounds to believe that the subject property is tainted property.2 Property is tainted property if it has wholly or partly been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.3 “Significant criminal activity” is criminal activity engaged in by a person that, if proceeded against as a criminal offence, would amount to offending that consists of, or includes, offences punishable by a maximum of five years’ imprisonment or more; or from which property, proceeds, or benefits of a value of $30,000 or more have been acquired or derived, either directly or indirectly.4
[9] The Court may also make a restraining order if it is satisfied it has reasonable grounds to believe that the respondent has unlawfully benefited from significant criminal activity.5 This means knowingly, directly or indirectly, deriving a benefit from significant criminal activity, whether or not the person was involved.6
2 Criminal Proceeds (Recovery) Act 2009, s 24.
3 Criminal Proceeds (Recovery) Act 2009, s 5.
4 Criminal Proceeds (Recovery) Act 2009, s 6(1).
5 Criminal Proceeds (Recovery) Act 2009, s 25.
6 Criminal Proceeds (Recovery) Act 2009, s 7.
Application
[10] The police investigation had focused on Mr Paora, a respondent in related proceedings CIV-2016-470-211 (CIV211). Mr Paora, Mr Morgan and Mr Ranui, the respondents in the “211” proceeding, were all known associates affiliated with the Head Hunters gang, with Mr Paora being a patched member. Mr Huirama is an associate of Joshua Petersen, who is a close associate of Mr Paora and the other respondents in CIV 211, Mr Morgan and Mr Ranui. Mr Wine is an affiliate of the Head Hunters (thought at the time to have been a prospect).
[11] The police investigation began in 2014, after a property in Whakatane, of which Mr Paora and another man were the lessees, was the subject of a suspicious fire. The subsequent scene examination resulted in Mr Paora and two others being jointly charged with possessing precursor equipment, substances and materials with intent to manufacture methamphetamine and with aggravated robbery. The charges against Mr Paora were dismissed under s 147 of the Criminal Procedure Act 2011.
[12] Subsequently the police undertook a covert investigation which included the interception of the private communications of the respondents in CIV211 and of Mr Petersen, including the use of surveillance devices to track the movements of Mr Petersen’s Toyota ute GBF943. In my decision in CIV211 I canvassed the evidence relied on to show that the respondents in that proceeding were engaged in significant criminal activity and was satisfied that the evidence did show this to be so.7 It is unnecessary to repeat that discussion here; the same evidence was relied on. It is sufficient to say that the evidence showed the use by Mr Paroa of a haulage business as a front for the business of manufacturing and supplying methamphetamine, that Mr Paora controlled transactions relating to that business, including the purchase of a precursor substance and the sale of methamphetamine, (even when in custody) and that Mr Paora and his wife had acquired a property using funds for which there was no obvious legitimate source.
7 Commissioner of Police v Paora & Ors [2018] NZHC 1419.
Toyota ute GBF943 – used to transport methamphetamine
[13] The 2011 Toyota Hilux GBF943 was registered to Mr Petersen. The vehicle was the subject of a tracking device, authorised on 6 November 2013. Text message data on 16/17 November 2015 disclosed conversations evidencing Mr Petersen’s supply of four grams of methamphetamine to an unknown person, with Mr Petersen coming from Tauranga to Rotorua to do so. Data from the tracking device showed GBF943 travelling from Tauranga to Rotorua overnight on 16/17 November 2015, where the text message showed that the sale was to take place.
[14] On 14 June 2016, a surveillance device warrant was issued that authorised placement of an audio listening device in or upon the vehicle as well. Further analysis of the data returned from the tracking device showed that the vehicle would travel to a location on the western side of the Waioeka River near Opotiki, and that its visits to that location often coincided with Mr Petersen’s travel to and from Opotiki and Tauranga. On 14 November 2016, police officers searched the area on the western side of the Waioeka River where the vehicle was known to have been. They located two plastic pails on the river bank. One of the pails contained $224,000 in cash packed into plastic shopping bags. The cash was packaged in smaller lots bound with rubber bands. The second pail was empty. The police counted the cash and photographed the contents of the pails. The tracking device recorded that GBF943 returned to that location the following day, 15 November 2016. The next morning, 16 November 2016, the police returned to the location to find the pails and the cash had been removed.
Supply of methamphetamine to Gayne Huirama and use of JET205 as security for drugs
[15] In October 2016, intercepted communications between Mr Petersen and an associate, Gayne Huirama (known as “Gee”) disclosed the supply of two ounces of methamphetamine by Mr Peterson to Mr Huirama, to be sourced from Mr Paora. I am satisfied from the evidence that this supply took place on 13 October 2016.
[16] The next day, 14 October 2016, an intercepted communication recorded Mr Huirama asking Mr Petersen whether “a truck” was still needed and Mr Petersen
confirming that Mr Huirama should “go on your own … and just leave the truck”. Later in the day Mr Huirama texted Mr Petersen saying “Trucks gotta be worth tht (sic) at least”. That same afternoon, Mr Huirama met Mr Petersen in Tauranga. Mr Huirama was driving a Holden utility JET205, of which he was the registered owner. Mr Petersen was driving his Toyota utility GBF943. They drove to Mr Ranui’s address. Mr Huirama left JET205 there and drove in Mr Petersen’s vehicle to a vehicle hire company in Mount Maunganui.
[17] Two days later, on 16 October 2016, Mr Huirama was arrested following a search of his rental vehicle while waiting at the inter-island ferry terminal. Two ounces of methamphetamine, scales and four cellphones were found. After unsuccessfully trying to contact Mr Huirama, Mr Petersen texted his partner on the evening of 16 October 2016, commenting “Looks like G is loosing [sic] his truck”.
[18] Subsequently, Mr Petersen told Mr Ranuui not to allow Mr Huirama to remove the vehicle.
[19] A few days later, ownership of JET205 was changed to Arihia Lawson and a few weeks after that into Mr Wine’s name. Ms Lawson and Mr Wine are in a de facto relationship. Detective Camplin surmised that, given Mr Wine’s position as a prospect for the Head Hunters, and the circumstances in which JET205 came to be under Mr Petersen’s control, it is more likely than not that Mr Petersen retained the beneficial interest and effective control over the vehicle, having taken it as security for the two ounces of methamphetamine he supplied to Mr Huirama.
[20] A restraining order would be appropriate under s 24 of the CPRA, as I consider that there are reasonable grounds to believe JET205 is tainted property as it was acquired as a result of significant criminal activity.
[21] I accept the Commissioner’s argument that the evidence supports an inference that Mr Huirama had left his vehicle with Mr Petersen as security for the methamphetamine he had purchased.
[22] In his affidavit in support of the application, Detective Camplin noted that 2011 Toyota Hilux vehicles, as of December 2016, were listed for sale on TradeMe for between $30,000 to $44,000. Mr Petersen’s financial capacity is limited. The Commissioner of Inland Revenue showed the declared income of Mr Petersen from 2011 to 2017, and it was minimal.
Interest of UDC in JET205
[23] In his most recent affidavit, dated 10 May 2018, Detective Camplin explains that, following Muir J’s order authorising the Official Assignee to sell JET205 and hold the funds from the sale pending resolution of this proceeding, the Commissioner learned that UDC Finance Limited has a prior registered security. JET205 was first purchased from a car dealer in Tauranga for $56,408 through a cash deposit of $10,000 and financing of $46,408 from UDC. Its initial registration on 10 August 2012 was under the number GLF833. On 22 August 2012, the registration number was changed to THEGC. It was then changed again on 14 August 2015 to JET205.
[24] In May 2014, when the registered number of the vehicle was THEGC, a company of which Mr Huirama was a director and 50 per cent shareholder, Tuitonga Holdings Ltd, executed an asset security agreement with UDC under which the vehicle was secured in relation to a loan from UDC to Tuitonga Holdings. That registered security was only recently discovered. The current balance of the debt is $29,842.94. No payments have been made since February 2017.
[25] Following identification of UDC Finance’s interest, the sale of the vehicle has been deferred. It is anticipated that the proceeds of sale of JET205 will be less than the amount currently owing to UDC. The Commissioner seeks orders restraining the vehicle, permitting it to be sold and for the proceeds to be paid to UDC to a maximum of $29,842.94.
Restraining orders
[26] I accordingly make orders that the following property is not to be disposed of, or dealt with, other than as is provided for in the restraining order, and is to be in the Official Assignee’s custody and control:
(a)The funds derived from the sale of the 2011 Toyota Ute, registration #GBF943, referred to at [2(a)] of the application for a restraining order dated 16 April 2018; and
(b)The 2012 Holden Ute, registration #JET205, referred to at [2](b) of the application for a restraining order dated 16 April 2018.
[27]I also make ancillary orders that:
(a)The Official Assignee has authorisation to sell the 2012 Holden utility motor vehicle, registration number #JET205;
(b)UDC Finance Ltd is to be paid up to the sum of $29,842.94 from the proceeds of the sale of the 2012 Holden utility motor vehicle, registration number #JET205; and
(c)Any remaining funds derived from the sale of the 2012 Holden utility motor vehicle, registration number #JET205, are to be held in an interest-bearing account until the resolution of these proceedings. For the avoidance of doubt, if the 2012 Holden utility motor vehicle, registration number #JET205, is sold for less than $29,842.94, then the recovery of the shortfall will be a matter between UDC Finance Ltd and Tuitonga Holdings Ltd.
P Courtney J
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