Commissioner of Police v Rata

[2025] NZHC 1611

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-103

[2025] NZHC 1611

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

HERBERT GEORGE RATA

First Respondent

AND

KAURI ARTHUR KERR

Second Respondent

AND

ITI STRICKLAND ARAMA

Third Respondent

Hearing:	on the papers
Counsel:	S M Earl and C F Hodgson for applicant W D McKean for third respondent
Judgment:	17 June 2025

JUDGMENT OF JOHNSTONE J

(approval of settlement between the Commissioner and third respondent)

This judgment was delivered by me on 17 June 2025 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

MC, Auckland

WRMK Lawyers, Whangārei

COMMISSIONER OF POLICE v RATA [2025] NZHC 1611 [17 June 2025]

[1]                 On 12 November 2021, police officers executed a search warrant at the home in Northland of the third respondent, Iti Strickland Arama. The search was one of several conducted that day in Northland, upon the termination of a covert police investigation   which   had   targeted   the   first   and   second   respondents,    Herbert George Rata and Kauri Arthur Kerr.

[2]                 Mr Rata, Mr Kerr and Mr Arama were charged with a range of drug-related offences. Amongst other things seized at Mr Arama’s home, was a Harley Davidson Wide Glide motorcycle (the Harley). It had been registered in Mr Arama’s name since July 2015.

[3]                 In the years since, the prosecutions which followed the searches have resolved. Mr Arama pleaded guilty to a charge of participating in an organised criminal group. On 4 April 2023, he was sentenced to 10 months’ home detention. And the Harley has been   the   subject   of   orders   in   this   proceeding,   made    under    the    Criminal Proceeds (Recovery) Act 1991: orders restraining it against unauthorised dealings; orders requiring the Official Assignee to sell it and hold the proceeds of its sale; and orders extending the ongoing restraint of the Harley and its sale proceeds. The restraining, sale and extension orders were made in contemplation of the Commissioner of Police applying for forfeiture orders, in respect of either the respondents, or the motorcycle (and then its sale proceeds), or both.

[4]                 The Commissioner and Mr Arama have now settled, between themselves, the question of what forfeiture order is appropriately made. They ask the Court to approve their settlement under s 95(3) of the Act, and to make the order they have agreed.

Approval of settlements under the Act

[5]                 Parliament has empowered the Commissioner to enter into settlements as to the forfeiture of property under the Act, and it has entrusted the High Court with a supervisory jurisdiction to approve settlements when satisfied they are consistent with the purposes of the Act and the overall interests of justice.1

1      Criminal Proceeds (Recovery) Act 2009, s 95; Commissioner of Police v Know-All Group Ltd HC Auckland CIV-2010-404-403, 7 November 2011 at [11].

[6]                 The primary purpose of the Act as set out in s 3(1) is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity or which represents the value of a person’s unlawfully derived income. Further purposes are stated at s 3(2).

[7]                 The requirement expressed in s 95(3), that the Court have regard to the overall interests of justice, reflects the strong public interest in litigation under the Act being brought to a prompt conclusion,2 and the desirability of proceedings under the Act being made on economic and pragmatic grounds reflective of common-sense compromise.3

The settlement

[8]The settlement the subject of the approval request contemplates that:

(a)The Court will make a profit forfeiture order against Mr Arama, under s 55 of the Act. The order will be in the sum of $13,749.28, that being the value of the  Harley’s  sale  proceeds,  plus  interest  accrued  to  31 May 2025.

(b)Mr Arama will abandon all claims he may have under the Act, or otherwise, to that property and to any of the other property restrained in this proceeding.

(c)Costs as between the Commissioner and Mr Arama in this proceeding will lie where they fall.

(d)The settlement, insofar as it addresses the question of civil forfeiture, arising as between the Commissioner and Mr Arama on the basis of the significant criminal activity alleged in the affidavits filed in the proceedings to date, is full and final.

2      Commissioner of Police v Cotton [2017] NZHC 21 at [7].

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

Assessment

[9]                 The Harley was initially restrained on the basis that, although it was registered in Mr Arama’s name, there were reasonable grounds to believe either:

(a)it was tainted property, having been acquired with the proceeds of significant criminal activity on the part of Mr Kerr; or

(b)Mr Kerr had engaged in such activity and the Harley was held under Mr Kerr’s effective control.

[10]              Mr Arama has not held a motorcycle licence. Mr Kerr was Mr Arama’s daughter’s partner, and police suspected him to be a senior member of a significant drug importing and distribution network, who had received a substantial unlawful benefit from that significant criminal activity. Last year, Mr Kerr pleaded guilty to representative charges of importing methamphetamine and other drugs, and was sentenced to a term of 12 years and eight months’ imprisonment.4

[11]              Consistently with the notion of Mr Arama assisting Mr Kerr, by agreeing to register a motorcycle on Mr Kerr’s behalf, Mr Arama was sentenced on the basis that, while operating a modest cannabis dealing enterprise in his own right, he had facilitated Mr Kerr’s offending by allowing his home to be the venue to which packages of methamphetamine, MDMA and pseudoephedrine were imported.5

[12]              Of note, another thing that  the  police  seized  from  Mr Arama’s  home  on 12 November 2021 was around $70,000 in cash. Mr Arama appears to have held that cash on Mr Kerr’s behalf. It was also restrained, and continues to be restrained, under the Act. The Commissioner anticipates pursuing a separate application, for forfeiture of the cash, contemplating that Mr Kerr may claim an interest and oppose. But that aspect of this proceeding remains for future consideration. As matters stand, Mr Kerr does not claim an interest in the Harley’s sale proceeds. And the settlement provides that Mr Arama will not claim an interest in the cash.

4      R v Kerr [2024] NZHC 2289.

5      R v Arama [2023] NZHC 953.

[13]              In light of the above, it appears Mr Arama is likely to have derived an unlawful benefit, albeit modest, from significant criminal activity. And that, although the Harley was acquired prior to that activity, its sale proceeds amount to property, available to Mr Arama, from which he might satisfy a profit forfeiture order of modest value.

[14]              The parties’ agreement that a profit forfeiture order should be made in this case is therefore both rational and appropriate. Further, their agreement, that the value of the benefit Mr Arama derived should be calibrated to the value of the Harley’s sale proceeds, is a fair and responsible approach in the circumstances.

[15]              Mr Arama’s benefit was modest. The sale proceeds represent the only property of appreciable value, of which the Commissioner is aware, to which recourse might be had for the purpose of enforcing a profit forfeiture order. Thus, while the Commissioner asserts that arguments suggesting that Mr Arama received more substantial benefits are available, and Mr Arama disputes this, the parties are right to acknowledge that there is little practical advantage in these arguments being tested and resolved.

[16]  Overall, approval of the settlement so it becomes binding is, in my view, consistent with the purposes of the Act and the overall interests of justice.

Result

[17]The settlement between the Commissioner and Mr Arama is approved.

[18]I make the following orders, to give effect to the parties’ settlement:

(a)a profit forfeiture order, made under s 55 of the Act in respect of     Iti Strickland Arama, that:

(i)Mr Arama has unlawfully benefited from significant criminal activity, within the period of seven years before 22 March 2022, in the amount of $13,749.28;

(ii)the maximum recoverable amount is $13,749.28; and

(iii)the property to be disposed of in accordance with s 83(1), being property in which Mr Arama has, or is treated as having interests, is the proceeds of sale of the Harley, and all interest accrued on those sale proceeds.

(b)costs in this proceeding, as between the Commissioner and Mr Arama, are to lie where they fall.

Johnstone J