Commissioner of Police v Sexton
[2025] NZHC 24
•20 January 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1529
[2025] NZHC 24
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
DALMANIUS LINTON PRIMROSE SEXTON
Respondent
Hearing: on the papers Counsel:
E H K Rangamuwa and G E Young for applicant M W Ryan for respondent
Judgment:
20 January 2025
JUDGMENT OF JOHNSTONE J
(approval of settlement between the Commissioner and respondent
This judgment was delivered by me on 20 January 2025 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: MC, Auckland
COMMISSIONER OF POLICE v SEXTON [2025] NZHC 24 [20 January 2025]
[1] On 5 May 2022, police officers executed a search warrant at the home in West Harbour, Auckland, of Dalmanius Sexton. They found a stolen vehicle bearing another’s registration plates, inside which was 480 grams of cannabis, a loaded nine millimetre pistol, and the vehicle’s original registration plates. Inside the home, the police found a safe, to which Mr Sexton provided the code. Inside the safe, they found four bundles, each of $10,000 cash, which inquiries later suggested had been formed when the bundles were packaged by the Armourguard security service on its cash floor. Armourguard could not confirm to whom the four bundles had been supplied, except that they were issued to a bank or commercial retailer.
[2] As a result of the search, Mr Sexton was charged with conversion of the vehicle, and with drug and firearms offences. He pleaded guilty to those and other offences in 2024, and was sentenced to a two-year, six-month term of imprisonment.
[3] In this proceeding, the Commissioner of Police has obtained an order, made under the Criminal Proceeds (Recovery) Act 2009, restraining the seized $40,000 cash. The Commissioner and Mr Sexton have now agreed to settle the question of what forfeiture orders are appropriately made. They ask the Court to approve their settlement under s 95(3) of the Act.
Approval of settlements under the Act
[4] 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
[5] 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).
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 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, reflecting the likely costs and risks inherent in the determination of a contested application,2 and the desirability of proceedings under the Act being made on economic and pragmatic grounds reflective of common sense compromise.3
The settlement
[7]The settlement the subject of the approval request is that:
(a)Mr Sexton consents to a type 1 assets forfeiture order over the seized cash and any interest accrued after it has been banked;
(b)he abandons all claims he may have under the Act, or otherwise, to that property; and
(c)costs as between the Commissioner and Mr Honeycombe in this proceeding will lie where they fall.
[8] The parties’ joint memorandum dated 15 January 2024, seeking approval of their settlement, contains their specific request that, in the event of approval, they seek the type 1 assets forfeiture order described above. I proceed on the basis that:
(a)the request amounts in substance to an on notice application by the Commissioner under ss 43 and 45 of the Act; and
(b)there being to the Commissioner’s knowledge no persons other than Mr Sexton who might have an interest in the seized cash, the Commissioner’s informal application complies with s 49.
2 Commissioner of Police v Cotton [2017] NZHC 21 at [7].
3 Commissioner of Police v Douglas [2015] NZHC 1293 at [6].
[9] In respect of that last point, the memorandum sets out grounds for the Commissioner’s belief the seized cash is tainted property; that is:
(a)The seized bundles are in the same form they were bundled into on the Armourguard cash floor.
(b)Although there are no reports of the loss of this amount of cash, Armourguard’s evidence is that it would have been supplied to a retail customer or a commercial bank.
(c)There is no evidence of withdrawals from Mr Sexton’s bank accounts that could explain the cash.
(d)Mr Sexton had limited declared income over an extended period and was in and out of custody over that period.
(e)There is no legitimate and rational explanation for Mr Sexton’s possession of the cash in the form it was found, nor the amount and denomination.
[10] In short, it appears the cash was stolen and that either Mr Sexton knew, or was at the very least reckless, that it had been stolen, when he came into its possession.
Decision
[11] Approval of the settlement so that it becomes binding is, in my view, consistent with the purposes of the Act and the overall interests of justice.
[12] There is a sufficient basis for type 1 asset forfeiture orders in respect of the seized cash, given the likelihood of it being derived from significant criminal activity. There will be a saving of time and expense if the proceeding can be resolved by consent without the need for a hearing. An agreed settlement will allow the parties to have certainty and control as to the outcome.
Result
[13]The settlement between the Commissioner and Mr Sexton is approved.
[14]I make the following orders, to give effect to the settlement:
(a)Type 1 assets forfeiture orders under s 50(1) of the Act: the sum of
$40,000 cash, located by police on 5 May 2022 at 8 Belvedere Court, West Harbour, and any bank funds (including accrued interest) into which the Official Assignee has converted that sum, vest in the Crown absolutely and are in the Official Assignee’s custody and control.
(b)Costs: costs lie where they fall in relation to all matters between the Commissioner and Mr Sexton.
Johnstone J
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