Commissioner of Police v Rankin
[2023] NZHC 1792
•10 July 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-139
[2023] NZHC 1792
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of applications under sections 21 and 25, and sections 43, 44, 52 and 55
BETWEEN
THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant
AND
JUSTIN RANKIN
Respondent
AND
OWHIRO BUILDERS LIMITED
Interested Party
Hearing: On the papers Counsel:
A W M Britton for Applicant
No appearance for Respondent or Interested Party
Judgment:
10 July 2023
JUDGMENT OF RADICH J
Introduction
[1] The Commissioner of Police applies for a civil forfeiture order under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondent, Justin Rankin (Mr Rankin), over a 2018 Nissan Navara (the Nissan) which has been the subject of restraining orders since 19 March 2021.
COMMISSIONER OF POLICE v RANKIN [2023] NZHC 1792 [10 July 2023]
Background
[2] On 14 December 2020, the Commissioner obtained a search warrant under s 101 of the Act to seize the Nissan, understood to have been obtained by an unlawful benefit made by the respondent through significant criminal activity. It was seized on that day and transferred to the Official Assignee on 16 December 2020.
[3] On 18 January 2021, the Commissioner sought an on-notice restraining order in the District Court over the Nissan on the basis that it was an instrument of crime in terms of s 5 of the Act.
[4] The District Court made the restraining order on 19 March 2021. Neither Mr Rankin nor the interested party appeared or opposed the application.
[5] The order was extended by the District Court under s 41 of the Act for one year to allow for Mr Rankin to be tried. The Commissioner intended to seek the Nissan’s forfeiture at Mr Rankin’s sentencing in the event of his conviction.
[6] On 24 July, Mr Rankin pleaded guilty to the charges brought against him and sought a sentence indication. On 25 November 2022 Mr Rankin was sentenced to seven years and five months’ imprisonment for possession of methamphetamine for supply,1 supplying GBL,2 and possession of GBL for supply.3 The sentencing date was brought forward and, due to an oversight, the profit forfeiture order was not sought at that time.
[7] As a result, the Commissioner applied for a further on-notice restraining order and for a profit forfeiture order under the Act on 17 March 2023. On 17 April 2023, Edwards J granted the restraining order and directed the forfeiture order application to be heard in the Judge’s Chambers List on 8 May 2023. The call was adjourned while the interested party (the liquidator of Owhiro Builders Limited, the company that employed the respondent) clarified his position.
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2).
2 Section 6(1)(c).
3 Section 6(1)(f).
[8] In a memorandum of 19 May 2023, the liquidator advised that he did not intend to take any further steps in the proceeding and, in a minute of 22 May 2023, I directed the Commissioner’s application for a forfeiture order be determined on the papers.
Relevant principles
[9] Under s 55(1) of the Act, the Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that:
(a)the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
(b)the respondent has interests in property.
[10] The order must specify the value of the benefit determined in accordance with s 53, the maximum recoverable amount determined in accordance with s 54 and the property that is to be disposed of in accordance with s 83(1) in which the respondent has, or is treated as having, an interest.4
[11] The approach to be taken in determining orders of the type sought here was described by Lang J in Pulman v Commissioner of Police in the following way:5
(a)The Court must determine under s 53 whether the Commissioner has proved on the balance of probabilities that the respondent has benefited from significant criminal activity during the relevant period. The value of that benefit is presumed to be as stated in the Commissioner’s application unless rebutted by the respondent.
(b)The Court must determine the maximum recoverable amount by taking the value of the benefit, as assessed in the above step, and deducting it from the value of any property already forfeited.
(c)The Court must determine whether any property should be excluded from the operation of the order because undue hardship is likely to be caused to the respondent if such property were realised.
4 Criminal Proceeds (Recovery) Act 2009, s 55(2).
5 Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011.
(d)If the Court is satisfied on the balance of probabilities the respondent has interests in property and the above steps have been taken, it must make the order.
[12] “Significant criminal activity” is defined in s 6 as an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending:
(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.
[13] Section 7 of the Act provides that a person has unlawfully benefited from significant criminal activity if the person has “knowingly, directly or indirectly, derived a benefit from significant criminal activity” whether or not that person undertook or was involved in the activity.
[14] Under s 5 a person has an “interest” in property where they have “a legal or equitable estate or interest in the property” or “a right, power or privilege in connection with the property”.
Analysis
[15] The Commissioner’s application seeks an order that the value of the benefit to be determined in accordance with s 53 of the Act is not less than $50,000. He then seeks to use his powers under the Act to forfeit the Nissan (which is valued by the Official Assignee at $25,000).
[16]The Commissioner submits on the balance of probabilities that:
(a)the respondent has been involved in “significant criminal activity” as that term is defined in s 6 of the Act;
(b)the respondent has benefited unlawfully from that significant criminal activity in terms of s 7 of the Act in an amount of not less than $50,000; and
(c)the respondent has an interest in the Nissan.
Significant criminal activity
[17] I am satisfied on the balance of probabilities that Mr Rankin was involved in significant criminal activity within the meaning of s 6 of the Act. He pleaded guilty to supply of a class B controlled drug (Gamma-butyrolactone or GBL), two charges of possession of GBL for supply, possession of equipment for the manufacture of methamphetamine and possession of a class A drug (methamphetamine) for supply. All of the charges carry maximum penalties of five years’ imprisonment or over.6 A conviction on these charges is conclusive proof of the fact that Mr Rankin committed the underlying offences.7 The summary of facts agreed between the prosecution and the defence can be received as evidence and is a reliable record of that offending.8
[18] The summary of facts describes the ways in which Mr Rankin was engaged in the supply and sale of GBL and methamphetamine. The charges were brought in the course of “Operation Skipjack”, a joint investigation between the New Zealand Customs Service and the Wellington District Organised Crime Squad which focused on the importation and supply of GBL by Mr Rankin. Between May 2017 and November 2020, Mr Rankin purchased 2,214.41 litres of Slide Resin Remover (SSR) and imported it into New Zealand. SSR is a primary constituent of GBL. Mr Rankin supplied 1,798 litres of SSR which he onsold as GBL during this period of time. When the operation ended in November 2020, police located ten 20-litre buckets of SRR in the back of the Nissan. They located more SRR at Mr Rankin’s address and at a Mount Victoria garage. The respondent’s cell phone records also support Mr Rankin’s purchase and storage of SSR, as GBL, and of methamphetamine.
[19] It is estimated that Mr Rankin obtained an unlawful benefit of $1,798,000 from the supply of the SSR.
Unlawfully benefited from the significant criminal activity
[20] I am satisfied on the balance of probabilities that Mr Rankin has benefited unlawfully from the criminal activity described above in terms of s 7 of the Act. And
6 Criminal Proceeds (Recovery) Act, s 6.
7 Evidence Act 2006, s 47.
8 Commissioner of Police v Cheng [2023] NZHC 606 at [35] and [46].
I accept that the evidence indicates that the Nissan was derived from Mr Rankin’s criminal activity.
[21] Mr Rankin’s bank and cash transactions between 12 September 2018 and 13 November 2020 demonstrated a discrepancy of $252,214.85 between identified, legitimate cash deposits and expenditure. The analysis of the transactions shows Mr Rankin to have received cash from an unknown source. The unexplained discrepancies, considered alongside the sale by Mr Rankin of SSR, “tend to support the inference that the relevant cash has been sourced from illegitimate or criminal activity”.9
[22] Although the District Court Judge at sentencing determined that Mr Rankin likely received $1.6 million from the offending, the Commissioner seeks $50,000 through this application. The maximum recoverable amount is therefore $50,000.10
Interest in the Nissan
[23] The Nissan was registered in the New Zealand Transport Agency (NZTA) database in the name of:
(a)the original owner between 24 August [year?] and 7 March 2019;
(b)an unknown person between 8 and 17 March 2019; and
(c)Mr Rankin’s employer on 18 March 2019.
[24] The Nissan was then registered in Mr Rankin’s name on 27 November 2020 following his arrest. When making inquiries, police were told by Mr Rankin’s employer that the vehicle belonged to Mr Rankin.
[25] Police investigated the Nissan’s purchase by an unknown person in March 2019 and were told that a man, who may have been a builder, bought it with $25,000 in cash consisting of $20, $50 and $100 notes. When interviewed by police on
9 Commissioner of Police v de Wys [2016 634 at [71].
10 Criminal Proceeds (Recovery) Act, s 53. No asset forfeiture order is sought.
15 February 2021, Mr Rankin claimed that the vehicle was not his, that he did not pay for it and that he used it for work.
[26] In the absence of evidence to the contrary from Mr Rankin, I accept that the evidence establishes on the balance of probabilities that Mr Rankin has an interest in the Nissan.
Result
[27] For the reasons given, I am satisfied that the Commissioner has established on the balance of probabilities that Mr Rankin has engaged in significant criminal activity from which he has obtained an unlawful benefit of not less than $50,000 and that he has an interest in the Nissan.
Orders
[28]For the reasons given:
(a)a profit forfeiture order is made under s 55 of the Act in relation to the property described in subpara (d) below;
(b)the value of the unlawful benefit to Mr Rankin from significant criminal activity is, in terms of s 53 of the Act, not less than $50,000;
(c)the maximum recoverable amount is, in terms of s 54 of the Act, not less than $50,000; and
(d)the property that is to be realised and disposed of in accordance with s 83(1) of the Act is a 2018 Nissan Navara motor vehicle, including ignition keys, registration plate number LPU 574.
Radich J
Solicitors:
Crown Solicitor, Wellington for Applicant
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