Commissioner of Police v Pitman

[2024] NZHC 594

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-488-75

[2024] NZHC 594

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

WATARINI TEKAUHOA BROOKLYN PITMAN

Respondent

Hearing:	On the papers at Auckland
Judgment:	19 March 2024

JUDGMENT OF POWELL J

[Approval of Settlement]

This judgment was delivered by me on 19 March 2024 at 4.00 pm pursuant to

r 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

COMMISSIONER OF POLICE v WATARINI TEKAUHOA BROOKLYN PITMAN [2024] NZHC 594 [19

March 2024]

[1]    On 21 August 2023, restraining orders were made under the Criminal Proceeds (Recovery) Act 2009 (“the Act”) against various assets belonging to the respondent, Watarini Pitman. Further orders were subsequently made against Mr Pitman on 29 September 2023.

[2]    Although the assets were restrained, no formal application for forfeiture has been made by the Commissioner. However, the parties have nonetheless reached agreement on how the assets should be disposed of. By way of a joint memorandum dated 26 January 2024, the parties have now sought approval of that settlement pursuant to s 95 of the Act. It is proposed that Mr Pitman will forfeit all, bar two, of the forfeited assets — the two exceptions being:

(a)A gold signet ring owned by Mr Pitman, identified by Police on 12 June 2023 at the property where Police previously located Mr Pitman and on 5 July 2023 at the Whangārei Police station, which appears to have been mislaid by Police and is not in the custody and control of the Official Assignee. As a result, the Commissioner does not seek forfeiture of the signet ring through the proposed settlement and the parties agree it should be released from restraint.

(b)A “half-sovereign” pendant, seized by Police on 22 August 2023 from Mr Pitman while he was at the Whangārei Police Station with an approximate value $2,250, which is to be returned to Mr Pitman.

[3]    I have read the contents of the joint memorandum, noting in particular that Mr Pitman is self-represented and has declined the opportunity to obtain legal advice, as well as the settlement agreement dated 5 December 2023 and the relevant parts of the pleadings filed on behalf of the Commissioner in relation to the property. I am satisfied that the proposed settlement is appropriate in terms of s 95(3) of the Act, being consistent with both the purposes of the Act and the interests of justice.

[4]    In particular, I note that there is strong public interest in litigation of this nature being brought to a prompt conclusion provided that the settlement reflects the likely costs and risks inherent in the determination of a contested application. In this case

the Commissioner contends that Mr Pitman has benefitted from significant criminal activity in the sum of at least $25,450, being the approximate value of methamphetamine it alleges he has sold, and considers that further investigation would likely show that the figure is considerably greater than this. As a result, the Commissioner submits that, apart from the two exceptions noted, it is appropriate for the restrained property which has a value of approximately $36,703 to be forfeited pursuant to s 50 of the Act.

[5]    I note that while Mr Pitman does not accept the Commissioner’s case he does not wish to comment further on the matter, seeks finality in the proceeding and is content with the proposed settlement.

Decision

[6]    The settlement dated 5 December 2023 is approved pursuant to s 95(3) of the Act.

[7]By consent I make the following orders to give effect to the settlement:

(a)Type 1 Assets forfeiture order under s 50(1) of the Act: the following property vests in the Crown absolutely and is in the Official Assignee’s custody and control:

Vehicles

(i)Kawasaki KX250 Motorcycle, VIN JKAKX250YYA003346, unregistered vehicle;

(ii)Yamaha YZ250 Motorcycle, VIN JYACJ18C3FAO12589, unregistered vehicle;

(iii)2005 Mazda RX-8, registration GSD605, registered person Stephen Neville Whalley;

(iv)2000 Holden VT Commodore, registration ZC8784, registered person Huihana Dana Wells;

(v)2005 Audi A3, registration NNH557, registered person Amber Joy Sutherland;

(vi)blue Yamaha dirt bike, Vehicle Identification Number JYACE16C37A008258, located by Police on 22 August 2023 at Flat 2, 39A Second Avenue, The Avenues, Whangārei (“2/39A Second Avenue”), owned by Mr Pitman;

Jewellery

(vii)a gold chain, seized  by  Police  on  22  August  2023  from  Mr Pitman at the Whangārei Police Station;

(viii)a Nixon  51-30  Chrono  gold  watch,  seized  by  Police  on  22 August 2023 from the Mazda RX-8 at the Whangārei Police Station, owned by Mr Pitman;

(ix)a gold Versace “Versus” watch, seized by Police from 2/39A Second Avenue on 22 August 2023, owned by Mr Pitman;

(x)a silver Tag Heuer “Formula 1” watch, seized by Police from 2/39A Second Avenue on 22 August 2023, owned by Mr Pitman;

(xi)a large gold nugget, seized by Police from the Holden Commodore at 2/39A Second Avenue on 22 August 2023, owned by Mr Pitman;

(xii)a gold black ring with a black emblem, seized by Police from the  Holden  Commodore   at   2/39A   Second   Avenue  on  22 August 2023, owned by Mr Pitman;

(xiii)a gold  “Nixon  Regulus  SS”  watch,  seized  by  Police  on  22 August 2023 from Mr Pitman at the Whangārei Police Station; and

(xiv)a gold letter “C” with a crown pendant, seized by Police on 22 August 2023 from Mr Pitman at the Whangārei Police Station; and

Cash

(xv)$15,548 cash seized by Police from 69 Williams Jones Drive on 12 June 2023.

(b)Further order under ss 33, 34, and 35 of the Act: the restraining orders in respect of:

(i)the “half-sovereign” pendant, seized by Police on 22 August 2023 from Mr Pitman at the Whangārei Police Station (“Pendant”); and

(ii)a gold signet ring, identified by Police on 12 June 2023 at 69 William Jones Drive, Otangerei, Whangārei and on 5 July 2023 at the Whangārei Police Station, owned by Mr Pitman are rescinded, and the Official Assignee is directed to return the Pendant to Mr Pitman.

(c)Costs: costs lie where they fall in relation to all matters between the Commissioner and Mr Pitman in this proceeding.

[8]In addition to the orders, the following matters are noted:

(a)Mr Pitman abandons all claims he may have, under the Act or otherwise, to any of the property forfeited under this settlement.

(b)The Commissioner will not bring an application for a profit forfeiture order against Mr Pitman on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.

(c)The agreement is in full and final settlement of this proceeding brought by the Commissioner against Mr Pitman under the Act.

Powell J