Commissioner of Police v Pink

[2023] NZHC 3736

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-124

[2023] NZHC 3736

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

ALLAN JAMES PINK

First Respondent

AND

DONALD CLIFTON JACOBS

Second Respondent

AND

MAUNGAKEIKEI TRUSTEE COMPANY LIMITED

Interested Party

AND

TAYLOR MATTHEW ARROL

Interested Party

Hearing:	On the papers at Auckland
Judgment:	18 December 2023

JUDGMENT OF POWELL J

[Settlement of claims against First Respondent]

This judgment was delivered by me on 18 December 2023 at 4.30 pm pursuant to

r 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

THE COMMISSIONER OF POLICE v ALLAN JAMES PINK [2023] NZHC 3736 [18 December 2023]

[1]    On 8 July 2020 restraining orders were made under the Criminal Proceeds (Recovery) Act 2009 (“the Act”) against various assets belonging to the first and second respondents. These restraining orders were subsequently extended to encompass further assets and are currently due to expire on 30 June 2024. An application for a profit forfeiture order was made against the first respondent and amended on 15 March 2022.

[2]    The amended application contends that the first respondent, Allan Pink, has benefitted from significant criminal activity in the sum of $1,681,344.70. While Mr Pink now accepts that he benefitted from significant criminal activity, he does not accept that figure and the parties accept that beyond the assets currently restrained Mr Pink does not have the financial capacity to satisfy any order in excess of the value of the assets presently restrained.

[3]    With regard to Mr Pink, cash in the total sum of $322,713.34 is currently being restrained (“the restrained cash”) along with a 1994 Mitsubishi FEOGIE campervan,1 registration SR452 (“the campervan”).2

[4]    Given that background the parties have now by way of a joint memorandum dated 15 November 2023 sought approval of a settlement pursuant to s 95 of the Act.

[5]    What is proposed is that Mr Pink will forfeit the sum of $300,000 out of the restrained cash. The balance of $22,713.34 (plus interest, if any) together with the campervan, is to be returned to Mr Pink within seven days of the Court approving settlement.

[6]    Having read the contents of the joint memorandum, as well as the amended application for civil forfeiture orders against the Mr Pink and relevant parts of affidavits filed on behalf of the Commissioner of Police, I am satisfied that the proposed settlement is appropriate in terms of s 95(3) of the Act in that it is both consistent with the purposes of the Act and the interests of justice.

1      This model does not exist, despite it being referred to in all relevant submissions and documents. The model is a FEO91E.

2      The initial order records the number plate as being SR425.

[7]    In particular I note the acceptance by the Commissioner that the amount to be forfeited represents a significant portion of the assets Mr Pink owns or has an interest in and note also Mr Pink is legally aided and as a result a defended hearing is not justified in the circumstances.

Decision

[8]I therefore make the following orders by consent:

(a)The value of the benefit is $300,000;

(b)The maximum recoverable amount is $300,000;

(c)$300,000 of the restrained cash is to be paid to the Commissioner in full and final settlement of all claims by the Commissioner under the Act against Mr Pink;

(d)The balance of the restrained cash being the sum of $22,713.34 (plus interest, if any) and the campervan (unencumbered of any costs associated with storage or arising out of its restraint) shall be returned to Mr Pink within seven days of this judgment; and

(e)There is no order as to costs.

Powell J