Commissioner of Police v Samau

[2024] NZHC 3672

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2078 [2024] NZHC 3672

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

MAKAVELI STORM RICHARD SAMAU

Respondent

Hearing:	On the papers
Counsel:	K Karpik and R Vercoe for the Applicant M Edgar for the Respondent
Judgment:	4 December 2024

JUDGMENT OF GORDON J

This judgment was delivered by me

on 4 December 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Kayes Fletcher Walker, Auckland

COMMISSIONER OF POLICE v SAMAU [2024] NZHC 3672 [4 December 2024]

[1]    In this proceeding the Commissioner of Police (Commissioner) has obtained restraining and ancillary orders under the Criminal Proceeds (Recovery) Act 2009 (Act) in relation to the following property:

(a)a black 2021 Ford Ranger Raptor motor vehicle, registration B1GUSO (the Ford Ranger); and

(b)$62,100 cash seized by Police on 11 May 2024 (the cash).

[2]    The restraining order and ancillary order (Official Assignee to sell the Ford Ranger and to hold the proceeds of sale) were made by consent on 18 September 2024.

[3]    The Commissioner and the respondent, Makaveli Samau, now seek the Court’s approval of a settlement under s 95 of the Act.

Background

[4]    On 11 May 2024 the Police searched a Nike backpack left behind by Mr Samau at an apartment he had rented in Manukau and located items including:

(a)a total of 1.22 kilograms of methamphetamine spread between four plastic bags alongside several smaller empty plastic bags; and

(b)$62,100 cash separated into seven bundles.

[5]    On 12 May 2024 Mr Samau returned to the apartment. He was driving the Ford Ranger. He was arrested by the Police on that day.

[6]    The Police searched the Ford Ranger and located a further 1.017 kilograms of methamphetamine wrapped in a similar way to some of the  methamphetamine  that had been located inside the apartment the day before.

[7]    The Police searched Mr Samau’s home address on 13 May 2024 and located items of interest including electronic scales.

[8]    As a result of the above, Mr Samau faces criminal charges, including two charges of possession of methamphetamine for supply, for the total of 2.237 kilograms of methamphetamine located in his backpack and in the Ford Ranger.

Proposed settlement

[9]    The parties agree that a type 1 assets forfeiture order should be made by consent in full and final settlement of the proceeding in relation to the following property:

(a)$42,300.89, being the proceeds of sale of the Ford Ranger; and

(b)                 the cash, (together the Property).

[10]The proposed settlement is on the following terms:

(a)Mr Samau consents to a type 1 assets forfeiture order over the Property (namely $104,400.89);

(b)the Commissioner will not advance any application for profit forfeiture; and

(c)costs are to lie where they fall.

Court approval – statutory provision

[11]Section 95 of the Act governs settlement and provides:

95High 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.

Discussion

[12]   I am satisfied that the proposed settlement recognises the primary purpose of the Act, which is to provide for forfeiture of property derived directly or indirectly from significant criminal activity, or property representing the value of a person’s unlawfully derived income.1

[13]   I am also satisfied that the settlement is consistent with the overall interests of justice. The words “overall interests of justice” in s 95(3) require a broad inquiry.2 Relevant factors include the saving of time and cost and the litigation risk of a hearing to the Commissioner and a respondent.3  The Courts have recognised  that a decision to settle proceedings under the Act will often reflect a “pragmatic” arrangement or solution, a “common sense compromise” or a “sensible resolution” that will meet the purposes of the Act and the overall interests of justice.4

[14]   Counsel advance the following reasons which I consider support the two criteria in s 95(3) namely the purposes of the Act and the overall interests of justice:

(a)There will be a saving of time and cost if  the Commissioner’s application can be dealt with by consent.

(b)The Commissioner considers he has a strong case but acknowledges a contested hearing carries some level of risk.

1      Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (b).

2      Commissioner of Police v Li [2018] NZHC 1566 at [32].

3      Commissioner of Police v Kree [2013] NZHC 2972 at [11]; Commissioner of Police v Zhang

[2016] NZHC 930 at [8].

1. Commissioner of Police v Marsh [2022] NZHC  1032 at [5], Commissioner of Police v Douglas

[2015] NZHC 1293 at [6], and Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].

(c)While Mr Samau disputes the strength  of the Commissioner’s application, he acknowledges that a contested hearing also carries a level of risk for him.

(d)The entirety of the restrained Property will be forfeited.

(e)While a profit forfeiture application will not be advanced, the estimated value of the unlawful benefit includes the value of the cash and the Ford Ranger (which will both be subject to asset forfeiture  under the proposed settlement). The remaining $156,590 relates to the estimated acquisition value of the methamphetamine since seized by Police.5

(f)Mr Samau is presently remanded in custody on his criminal charges. The Commissioner has identified only limited property in which he has an interest that could be forfeited to meet any profit forfeiture order.

(g)Mr Samau has had the benefit of legal advice.

Result

[15]   Given that I am satisfied of the two matters in s 95(3) of the Act, I must approve the settlement.

[16]I make the following orders:

(a)I approve the settlement as proposed; and

(b)I make a type 1 assets forfeiture order against Mr Samau over the currently restrained Property, namely $104,400.89.

[17]   In addition, I record that the settlement is in full and final settlement of the proceedings brought by the Commissioner against Mr Samau under the Act. The Commissioner will not advance an application for forfeiture on the basis of the evidence in this proceeding.

5      As calculated by a Police officer and set out in an affidavit sworn by that officer.

Costs

[18]Costs are to lie where they fall.

______

Gordon J