Commissioner of Police v Pukeroa

[2024] NZHC 1137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-548

[2024] NZHC 1137

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BROWNIE RYU PUKEROA

First Respondent

AND

KAESHA-CAPRYZE EZEKIEL TARAWA

Second Respondent

Hearing:

3 May 2024

Appearances:

S M Earl for applicant

No appearance by or on behalf of respondents

Judgment:

9 May 2024

JUDGMENT OF JOHNSTONE J

(application for profit forfeiture order)

This judgment was delivered by me on 9 May 2024 at 9.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: MC, Auckland

COMMISSIONER OF POLICE v PUKEROA & ANOR [2024] NZHC 1137 [9 May 2024]

[1]                 On 17 January 2023, Police officers executed a search warrant at the Kaitaia home of Brownie Pukeroa and Kaesha-Capryce Tarawa. In their bedroom was found:

(a)in a locked cupboard, a gold chain valued at $32,400, $5,020 in cash, and a crystalline substance containing methamphetamine and weighing

6.82 grams; and

(b)in Ms Tarawa’s handbag, $825.30 in cash.

[2]                 The items were seized. Mr Pukeroa was charged with and later pleaded guilty to possessing the methamphetamine for the purpose of supplying it to others.

[3]                 By application dated 15 March 2024, the Commissioner seeks a profit forfeiture order in respect of Mr Pukeroa and Ms Tarawa, or a restraining order pending a type 1 assets forfeiture order in respect of the above gold chain and cash (the Property), under the Criminal Proceeds (Recovery) Act 2009.

[4]                 In respect of the profit forfeiture order in particular, the application as required by s 52 of the Act:

(a)names Mr Pukeroa and Ms Tarawa as respondents;

(b)describes the significant criminal activity within the relevant period of criminal activity from which they are alleged to have unlawfully benefited as the supply (including sale) of methamphetamine;

(c)states the value of that benefit as $52,942.79; and

(d)identifies the above Property as the property in which they hold interests, implicitly as joint owners.

[5]                 The application was served on Mr Pukeroa and Ms Tarawa on 27 March 2024, prior to being heard in the Criminal Proceeds list on 3 May 2024. No opposition was filed prior to that mention, and no appearance made by or on behalf of Mr Pukeroa and Ms Tarawa in opposition. The Commissioner seeks judgment.

[6]I must determine:

(a)whether the Commissioner has proved, on the balance of probabilities, that Mr Pukeroa and Ms Tarawa did, in the relevant period of criminal activity, unlawfully benefit from significant criminal activity (in which case the value of their benefit will be presumed to be that stated in the Commissioner’s application — $52,942.79);1

(b)the “maximum recoverable amount” under s 54 of the Act, being the value of their benefit less the value of any property forfeited under a type 1 assets forfeiture order made in relation to the same significant criminal activity; and

(c)whether Mr Pukeroa and Ms Tarawa have interests in the Property.2

[7]                 If the Commissioner has proved the matter at [6](a), I must make a profit forfeiture order in accordance with my views of the matters at [6](b) and [6](c).

Did Mr Pukeroa and Ms Tarawa unlawfully benefit from significant criminal activity in the relevant period?

[8]                 Significant criminal activity is activity engaged in that, if proceeded against as a criminal offence, would amount to offending punishable by a maximum term of imprisonment of five years or more, or from which at least $30,000 in value of property or benefits has been acquired.3 The relevant period is the period  between  15 March 2017 and 15 March 2024, being the period of seven years before the date of the Commissioner’s application.4

[9]                 Police employees have obtained the respondents’ tax records, and they have approached various banks and financial institutions to obtain the respondents’ banking

1      Criminal Proceeds (Recovery) Act, s 53(1). Subject only to the Court’s discretion to amend the Commissioner’s application in response to “administrative overreach”: Cheah v Commissioner of Police [2020] NZCA 253 at [45], and Snowden v Commissioner of Police [2021] NZCA 336 at [47]–[49].

2      Section 55(1).

3      Sections 5(1) and 6(1).

4      Section 5(1).

records. Review of this material shows that, in the 2022 tax year and the 2023 tax year to 23 February 2023:

(a)Mr Pukeroa declared net income of $11,229.36 to Inland Revenue, and Ms Tarawa declared net income of $19,391.74, largely if not all comprised of benefit payments;

(b)their bank accounts received around $14,600 in deposits that could not be identified as related to this declared income or other benefit payments;

(c)their bank accounts recorded what the Police financial analyst describes as “lifestyle expenditure” of $31,158.89, including spending  on  living and general household expenses, utilities, entertainment and travel; and

(d)no transactions were identified which might explain any purchase of the gold chain found in their possession on 17 January 2023.

[10]              This suggests the respondents had access to an unidentified source of funds in the period from 1 April 2021  to  23  February  2023.  Further,  the  respondents’ bank accounts disclosed a marked lack of recorded expenditure upon so-called lifestyle expenses, during the period December 2021 to July 2022. In this narrower period, the respondents plainly had access to an unidentified source of funds, as they sustained themselves without recourse to their bank accounts.

[11]              When this material is put alongside the circumstances of the 17 January 2023 search, when Ms Tarawa was found to have $825.30 in cash in her handbag, and a quantity of methamphetamine which Mr Pukeroa had in his possession for the purpose of supplying to others was found alongside $5,020 cash and a heavy gold chain, I am driven to the view that both Mr Pukeroa and Ms Tarawa unlawfully benefited from significant criminal activity in the relevant period; in particular, the sale of methamphetamine.

Maximum recoverable amount

[12] There has been no type 1 assets forfeiture order made in respect of the significant criminal activity referred to at [11] above. The maximum recoverable amount is accordingly that stated in the Commissioner’s application: $52,942.79.

Does Mr Pukeroa and Ms Tarawa have interests in the Property?

[13]              The  Property  was  found  inside   the   bedroom   of   Mr   Pukeroa   and   Ms Tarawa along with drug-related items for which, pursuant  to  his  guilty  plea,  Mr Pukeroa took responsibility. No other person has claimed their ownership in the period of more than one year since the Property was seized by police. I find that it is Property owned by Mr Pukeroa and/or Ms Tarawa.

Result

[14]              In light of the above, I grant the Commissioner’s application dated 15 March 2024, making a profit forfeiture order, jointly and severally, against Mr Pukeroa and Ms Tarawa as follows:

(a)the value of the benefit determined in accordance with s 53 of the Act is $52,942.79;

(b)the maximum recoverable amount determined in accordance with s of the Act is $52,942.79; and

(c)the property that is to be disposed of in accordance with s 83(1), being property in which the respondents have, or are treated as having, interests is the Property, described in further detail at paragraph 2(c) of that application.

Johnstone J