Commissioner of Police v Polaulu

[2017] NZHC 2106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001457 [2017] NZHC 2106

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

FOLAUHOLA MEILOTO OKALANI KI TUTULUPEATAU POLAULU Respondent

Hearing:	On the papers
Appearances:	K Hogan for the Applicant
Judgment:	31 August 2017

JUDGMENT OF VAN BOHEMEN J﷢﷢﷢﷢﷢

This judgment was delivered by me on 31 August 2017 at 3.30 pm

Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:            Kayes Fletcher Walker, Auckland  katie @ kf w. co . nz

Counsel:              A Ives, Barrister, Auckland  an nab elive s@ xtr a. co . nz

COMMISSIONER OF POLICE v FOLAUHOLA MEILOTO OKALANI KI TUTULUPEATAU POLAULU [2017] NZHC 2106 [31 August 2017]

[1]      In this proceeding, the Commissioner of Police has been seeking forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (Act), namely:

(a)       Forfeiture  of  certain  property  located  at  the  home  address  of  the respondent, 19 Dunkirk Road, Panmure:

(i)       $118,690 in cash;

(ii)      A 2016 Harley Davidson motorbike, registration B2GYF;

(iii)A 2008 Cadillac Escalade, registration trade plate 3067X, being “tainted property” in terms of s 5 of the Act in that it was wholly or in part acquired or derived from significant criminal activity; and

(b)Forfeiture of profits the respondent may have obtained from significant criminal activity.

[2]      The Commissioner asserts that the property derives from dealing in controlled drugs and/or the respondent has unlawfully benefitted from dealing in controlled drugs, and the assets should be forfeited to offset that unlawful benefit.  In November

2014, the respondent was convicted of participating in an organised criminal group and was sentenced to 10 months home detention.  He was acquitted or discharged, however, on other charges relating to the manufacture and supply of methamphetamine and the supply of pseudoephedrine.

[3]      In a joint memorandum of counsel dated 28 September 2017, counsel for the Commissioner  and  the respondent  advised  they  had  reached  a  settlement.    The proposed settlement is:

(a)       The respondent will consent to an assets forfeiture order being made in respect of the property;

(b)The Commissioner will forego his application for a profit forfeiture order in respect of the respondent;

(c)       Costs lie where they fall.

Decision

[4]      Section 95 of the Act provides:

95 High 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.

[5]      Section 3 of the Act provides:

3    Purpose

(1) The primary purpose of this Act is to establish a regime for the forfeiture of property—

(a) that has been derived directly or indirectly from significant criminal activity; or

(b) that represents the value of a person’s unlawfully derived income.

(2) The criminal proceeds and instruments forfeiture regime established under this Act proposes to—

(a)  eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and

(b) deter significant criminal activity; and

(c)  reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and

(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.

[6]      I am satisfied the proposed settlement is consistent with the purpose of the Act because it ensures that the most significant assets found at the respondent’s home and which are believed to have been derived from significant criminal activity will be forfeited.

[7]      The evidence suggests the property was derived from significant criminal activity and is either property of the respondent or property over which the respondent has effective control. It is fully consistent with the purpose of the Act as set out in s 3 of the Act that the property should be forfeited.  According to the affidavits filed in support of the Commissioner’s application, the respondent has little income and few other assets.

[8]      The settlement, therefore, is both pragmatic in that it recognises the realities of the situation but will still send an appropriate deterrent message in terms of s 3 of the Act.

[9]      Accordingly, I approve the terms of the proposed settlement.

[10]     I invite counsel to file a further joint memorandum with a draft order for sealing.

van Bohemen J