Commissioner of Police v Pohatu

[2025] NZHC 226

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2023-416-022

[2025] NZHC 226

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 43, 44 and 52

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

CAREY JOANNA POHATU

Respondent

On the papers:
Counsel:	M Mitchell for Applicant D Berry for Respondent
Judgment:	19 February 2025

JUDGMENT OF GWYN J

[Approving settlement]

Introduction

[1]                This proceeding relates to an application by the Commissioner of Police (Commissioner) for a profit forfeiture order in respect of $14,140 cash seized from the respondent.

[2]                The application is scheduled for a hearing in the Wellington  High Court on   6 March 2025.

[3]                The Commissioner and Ms Pohatu have now agreed between themselves to settle the proceeding. They jointly invite the Court to approve their settlement under

THE COMMISSIONER OF POLICE v POHATU [2025] NZHC 226 [19 February 2025]

s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act) and to make consequential orders.

Background

[4]                The proceeding arises from a Police investigation in Gisborne in 2021 and 2022.

[5]                Between 31 October 2021 and 5 November 2021 stolen property to the value of $4,205 was located by Police at Ms Pohatu’s place of residence (the address).    Ms Pohatu entered a guilty plea in the Rotorua District Court to a representative charge of receiving.

[6]                During the execution of a search warrant at the address on 16 November 2021 Police located drugs and drug paraphernalia, together with a black bag containing

$12,650 cash. The bag containing the cash was located inside a safe that contained drug paraphernalia and 21 grams of cannabis.

[7]                Following her arrest on 28 February 2022, Police seized Ms Pohatu’s cellphone. On the phone they found text messages and photographs which evidenced Ms Pohatu’s methamphetamine  and  cannabis  dealing.  The  evidence  indicated  Ms Pohatu had profited from the proceeds of that activity, having substantial amounts of cash and electronic money on hand.

[8]                On 26 April 2023, Ms Pohatu was sentenced in the District Court at Gisborne to two years and three months’ imprisonment in respect of charges of possession of methamphetamine for supply, supplying methamphetamine, offering to supply methamphetamine, possession of cannabis for sale, and offering to sell cannabis (together with a charge of receiving stolen goods).

[9]                The Commissioner’s case is that Ms Pohatu has, in the relevant period of criminal activity, unlawfully benefited to the value of $14,140 from significant criminal activity. The relevant period of criminal activity is 13 February 2019 (the date of opening of Ms Pohatu’s Westpac bank accounts), and 1 March 2022, being the date of the last search warrant executed at the address.

[10]            The parties have put before the Court a memorandum inviting the Court to approve a proposed settlement between the Commissioner and Ms Pohatu.

Settlement for approval

[11]            Any settlement made in relation to proceedings brought under the provisions of the Act is required to be approved by this Court.1

[12]The proposed settlement is that:

(a)$12,140 in cash, together with accrued interest, is to be forfeited to the Commissioner;

(b)$2,000 is to be paid to the nominated bank account of the respondent’s daughter, Audrina Poi, in respect of which the respondent is to have no access or authority; and

(c)costs are to lie where they fall.

Approval of settlements under the Act

[13]Section 95 of the Act provides:

95High Court must approve settlement between Commissioner and other party

(1)The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)A settlement does not bind the parties unless the High Court approves it.

(3)The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)the purposes of this Act; and

(b)the overall interests of justice.

1      Criminal Proceeds (Recovery) Act 2009, s 95(2).

[14]            The s 95 requirement is that the Court have regard to the overall interests of justice. This reflects the strong public interest in proceedings under the Act being brought to a prompt conclusion, reflecting the likely costs and risks inherent in the determination of a contested application, and the desirability of proceedings under the Act being made on economic and pragmatic grounds, reflective of commonsense compromise.2

Decision

[15]            Approval of the settlement proposed so that it becomes binding is, in my view, consistent with the purposes of the Act and the overall interests of justice. The amount to be paid in settlement represents the entirety of the proceeds of Ms Pohatu’s drug offending. It would also provide $2,000 to her daughter who has (as a consequence of events unconnected to these proceedings) been deprived of Court-ordered reparation in respect of her father’s death in a workplace accident.

[16]            Given the significance of the amount to be forfeited, it will be a deterrent to Ms Pohatu and others.

[17]The settlement is approved accordingly.

2      Commissioner of Police v Douglas [2015] NZHC 1293 at [6].

Result

[18]I make the following orders, so as to give effect to the settlement:

(a)the $14,140 currently held in the Police Trust Account is to be forfeited to the Commissioner in full and final settlement within one month of the date the profit forfeiture order is sealed;

(b)of that sum, $2,000 is to be paid to the nominated bank account of Audrina Poi; and

(c)each party will bear their own costs.

[19]The fixture on 3 March 2025 is vacated.

Gwyn J

Solicitors:

Elvidge & Partners, Napier for Applicant

Woodward Chrisp Solicitors, Gisborne for Respondent