Commissioner of Police v Riri

[2024] NZHC 1061

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000636

[2024] NZHC 1061

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

GEORGINA TUREWA RIRI

Respondent

Hearing:	On the papers
Counsel:	M R Harborow and A Wilson for Applicant Respondent self-represented
Judgment:	3 May 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 3 May 2024 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ………………………….

COMMISSIONER OF POLICE v RIRI [2024] NZHC 1061 [3 May 2024]

Introduction

[1]    By joint memorandum dated 22 March 2024, the parties seek the Court’s approval of the proposed settlement between the Commissioner and Ms Georgina Turewa Riri under s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]    The Commissioner seeks a type 1 assets forfeiture order under s 50(1) of the Act in respect of cash in the sum of $43,900 found in a vehicle being driven by Ms Riri in July 2023. The Police located both the Cash and 880 grams of cannabis plant in the vehicle. Ms Riri subsequently pleaded guilty to and was convicted of possession of cannabis for supply.1 The Commissioner’s case is that the cash was likely derived from the proceeds of Ms Riri’s sale of cannabis, and that Ms Riri unlawfully benefited from the sale.

Factual background

[3]    On 16 July 2023, Ms Riri was stopped by the Police for speeding on State Highway 1 in Wellsford, Auckland. While speaking with Ms Riri, Police noticed a strong smell of cannabis emanating from her vehicle. The Police invoked a warrantless search under s 20 of the Search and Surveillance Act 2012, for drugs.

[4]    As noted, the cannabis plant and cash were located and seized at that time. The cannabis was packaged inside individual Ziplock bags, and the cash was comprised of bundles of $10, $20, and $50 notes.

[5]    On 6 March 2024, and following her guilty plea, Ms Riri was sentenced to community work (120 hours), supervision (one year) and community detention (six months).

[6]    The Court understands that Ms Riri has obtained legal advice from an Auckland barrister on the proposed settlement.

1      Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty: 8 years’ imprisonment.

The statutory scheme of the 2009 Act

[7]Section 95 of the Act governs settlements and provides:

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.

[8]    In enacting s 95, Parliament expressly empowered the Commissioner to enter into settlement discussions with respondents (and interested parties) regarding the forfeiture of assets. In doing so, Parliament no doubt had in mind the significant costs associated with civil litigation, and the benefits to all parties if such proceedings can be resolved by consent.

[9]    Parliament has entrusted the Court with the supervisory jurisdiction, aimed at ensuring that any settlements reached are consistent with its intent in enacting the Act, and with the overall interests of justice.2 The approval of a proposed settlement by the Court is not a rubber-stamping exercise.3

[10]The primary purpose of the Act is contained in s 3(1):

The establishment of a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity, or that represents the value of a person’s unlawfully derived income.

[11]   The statutory language used in the Act, “overall interests of justice”, indicates that a broad enquiry is required.4

2      Commissioner of Police v Know-all Group Ltd HC Auckland CIV-2010-404-403, 7 November 2011, at [11].

3      Commissioner of Police v Bradley [2012] NZHC 1594, at [9]; Commissioner of New Zealand Police v Veevers (aka Williams) [2017] NZHC 80 at [10].

4      Criminal Proceeds (Recovery) Act 2009, s 95(3)(b).

[12]   If the Court is satisfied of the two matters set out in s 95(3), the settlement reached between the parties must be approved (i.e. the purposes of the Act and the overall interests of justice).

The Commissioner’s case

[13]   Ms Riri’s conviction is conclusive proof she committed the offence of possession of cannabis for supply.5

[14]   In addition, the Commissioner’s case is supported by unexplained cash and third-party deposits into Ms Riri’s bank account. The Commissioner also relies upon Ms Riri’s declared modest net income for the period 2017 to 2024. She has not been in any paid employment since 2018. Benefits from the Ministry of Social Development have been her sole source of income since that time.

Proposed settlement

[15]   The parties have agreed to settle the matter of civil forfeiture of assets between themselves on the following terms:

(a)A type 1 assets forfeiture order under s 51 of the Act to be made by consent over the cash (including any interest accrued);

(b)Ms Riri agrees to abandon any and all claims she may have to the cash;

(c)The Commissioner will not pursue the application for a profit forfeiture order;

(d)The agreement is to be in full and final settlement of the question of civil forfeiture; and

(e)Costs are to lie where they fall.

5      Evidence Act 2006, s 47.

Analysis and decision

[16]   I find that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice. Accordingly, a proper basis for the Court’s approval under s 95 has been made out. The following factors support that finding:

(a)There will be a saving of time and cost by resolution of the proceedings by consent;

(b)An agreed outcome will allow the parties to have certainty and control as to the outcome;

(c)The Commissioner has a strong case to show that the cash is tainted property;

(d)The Commissioner appropriately acknowledges that a contested hearing carries risk and cost. The Commissioner’s enquiries have not revealed significant assets which could be realised to meet the outstanding debt, should a Profit Forfeiture Order have been pursued; and

(e)Ms Riri acknowledges her involvement in the drug offending and that a contested hearing carries with it risk. She also acknowledges that under the Act the Court has the power to forfeit the cash.

[17]Accordingly, I grant the application sought.

Orders and directions

[18]   I make an order approving the settlement under s 95 of the Act on the following terms:

(a)Type 1 assets forfeiture order under s 50(1) of the Act: the following property vests in the Crown absolutely and is in the Official Assignee’s custody and control:

(i)$43,900 cash located by Police in Ms Riri’s vehicle on 16 July 2023, and any interest accrued.

(b)Costs: costs lie where they fall in relation to all matters between the Commissioner and Ms Riri in this proceeding.

[19]I further note the following terms of the agreed settlement:

(a)Ms Riri agrees to abandon any and all claims she may have, under the Act or otherwise, to the cash (including any interest) forfeited under this settlement;

(b)The Commissioner will not seek a  profit  forfeiture  order  against  Ms Riri on the basis of the significant criminal activity as evidenced in the affidavits filed in this proceeding to date; and

(c)The settlement agreement is in full and final settlement of the question of civil forfeiture of the cash as a result of significant criminal activity evidenced in the affidavits filed in the proceedings.

Andrew J