Commissioner of Police v Sarsfield

[2015] NZHC 1990

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-153 [2015] NZHC 1990

UNDER

sections 21, 24 and 25 of the Criminal

Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

ANTHONY RAY SARSFIELD First Respondent

KAYE EVELYN MCCALL Second Respondent

Hearing:	20 August 2015
Appearances:	R G Douch for Plaintiff P G Mabey QC and L Wilkins for First and Second Respondents
Judgment:	21 August 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

21 August 2015 at 2.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Almao Douch, Crown Solicitors, Hamilton

Cop to:

P G Mabey QC, Tauranga

THE COMMISSIONER OF POLICE v SARSFIELD [2015] NZHC 1990 [21 August 2015]

[1]      Mr Sarsfield and Ms McCall pleaded guilty to a number of charges of methamphetamine offending.   Various items of property were found in their possession, including:

(a)       $26,462.90;

(b)      2003 Holden Utility V6, Registration Number HNS 4;  and

(c)       2000 Holden Commodore Club Sport Saloon, Registration Number

HGU 324.

[2]      The respondents do not  dispute that these items were obtained  from the proceeds of their methamphetamine offending.

[3]      The Commissioner of Police sought an asset forfeiture order in respect of that property. Mr Sarsfield and Ms McCall consent to the order.   After hearing from counsel, I was satisfied that the property is tainted property and that the forfeiture orders as sought were appropriate. My reasons for doing so now follow.

Background

[4]      In the period April 2013 to January 2015, Mr Sarsfield and Ms McCall were engaged in the manufacture and/or supply of methamphetamine.   Mr Sarsfield pleaded guilty to 13 charges relating to that offending.   Ms McCall also pleaded guilty to four charges relating to that offending. Mr Sarsfield was sentenced to 11 years six months and Ms McCall was sentenced to 11 months home detention.

[5] Over the course of the police investigation into their offending, including the searches of Ms McCall’s residence, they seized various items, including the property listed at [1] above. The cars were registered to Ms McCall and the cash was found in Mr Sarsfield’s possession. The police examined their financial history and could find no evidence of a source of income that might explain their acquisition of these assets other than methamphetamine dealing. All of this is traversed in a detailed and helpful affidavit of Detective Sergeant Paul Thompson.

[6]      Mr Sarsfield and Ms McCall now accept that there is no proper explanation for their possession of the property other than the methamphetamine offending.

Jurisdiction

[7]      Pursuant to s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act) I

must grant an order for forfeiture in the following circumstances:

50       Making assets forfeiture order

(1)       If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.

(2)      Subsection (1) is subject to section 51.

(3)       The Court must specify in an assets forfeiture order the property to which the order applies and that the property—

(a)      vests in the Crown absolutely; and

(b)      is in the custody and control of the Official Assignee.

…

[8]      Tainted property is defined in s 5(1) of the Act as:

tainted property—

(a)       means any property that has, wholly or in part, been—

(i)       acquired as a result of significant criminal activity; or

(ii)      directly  or  indirectly  derived  from  significant  criminal activity; and

(b)       includes  any  property  that  has  been  acquired  as  a  result  of,  or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

Assessment

[9]      Having reviewed the detailed evidence provided by the Commissioner as to the offending, the respondents’ financial history, the property subject to the application and given the respondents’ consent, I am satisfied that the property is tainted property and properly amendable to the forfeiture orders as sought.

A procedural point

[10]     The parties sought to have the application dealt with on the papers. I raised with counsel the use of the s 95 procedure given that the respondents consent to the orders. Section 95 of the Act states:

95       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.

[11]     Counsel sought to address me in chambers. Mr Douch maintained that the proper procedure remained the formal application process contemplated at s 50.  He submitted  that  the  s  95  procedure  was  only invoked  where  a  compromise  was reached that might need judicial oversight. Given this position, I had the matter called in open court in the usual way following Mr Sarsfield’s sentencing.

[12]     For   completeness,   I  do   not   accept   s   95   is   only  invoked   where   a “compromise” has been reached.  Section 95 specifically refers to any “settlement” reached. There is nothing to suggest that consent to the forfeiture orders is not amendable to the s 95 settlement process.   Moreover, this matter could have been dispensed with on the papers by way of the production of a settlement agreement recording the agreed facts, including relevant admissions and the consent of the respondents to the forfeiture orders. Given the lack of controversy and the purpose of the Act, the overall interests of justice are plainly served by the grant of the forfeiture orders as sought.

[13]     In any event, I grant the following orders:

(a)       The property to which this order applies:

(i)       Vests in the Crown absolutely; and

(ii)      Is to be in the Official Assignee’s custody and control.

(b)This order applies to the following property; namely: (i)           $26,462.90 cash;

(ii)      2003 Holden utility V6, registration number HNS4; and

(iii)2000  Holden  Commodore  Club  Sport  saloon,  registration number HGU324.