Commissioner of Police v Sharma

[2016] NZHC 1590

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-0039 [2016] NZHC 1590

IN THE MATTER

of an application for a restraining order

pursuant to ss 25(1) and (2)(a) of the
Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

DEEPAK SHARMA Second Respondent

AND

SHINA SHARMA Second Respondent

AND

UMA SHARMA Third Respondent

Telephone

Conference:

12 July 2016

Appearances:

R Jenson for the Applicant
P T Attwood for the First Respondent
W T Nabney Litigation Guardian for the Second Respondent
No appearance for the Third Respondent

Date:

13 July 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 13 July 2016 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors/Counsel:

Hollister-Jones Lellman, Tauranga. P T Attwood, Tauranga.

W T Nabney, Tauranga.

THE COMMISSIONER OF POLICE v SHARMA & ORS [2016] NZHC 1590 [13 July 2016]

[1]      The Commissioner of Police, having obtained restraining orders in respect of certain assets, now seeks forfeiture of them pursuant to the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]      The first respondent had filed a pro forma opposition to the application.  That opposition has since been withdrawn and the first respondent no longer offers any opposition and consents to forfeiture.

[3]      The second respondent, through her litigation guardian, does not oppose a profit forfeiture order being made.

[4]      The third respondent has been served with the application.   The Court has received  a  memorandum  from  Mr Rickard-Simms,  barrister  and  solicitor,  which records his meeting with the third respondent  wherein he provided some initial advice on a pro-bono basis.  He has since received no further or formal instructions.

[5]      By a minute dated 24 May 2016 his Honour Justice Muir directed that any affidavits in opposition were to be filed and served by 5 July 2016.   No notice of opposition on behalf of the third respondent or affidavits in support have been filed or served and the third respondent did not participate at the telephone conference convened today.

Background

[6]      The evidence in this matter comes from an affidavit sworn on 8 March 2016 by Detective Mark Watt.

[7]      The   first   respondent   was   charged   with   six   representative   counts   of dishonestly using a document.  He has pleaded guilty to five of the six charges.  The charges in the criminal proceedings relate to behaviour of the first respondent when employed by the complainant.  The first respondent was a supervisor working for the complainant and as such recruited other workers for the company.   The first respondent submitted false time sheets for a number of workers who had left New Zealand some years prior.  The time sheets were submitted to the company for wages

payments and the wages were paid into bank accounts operated and/or used by the first respondent.

[8]      The  applicant  claims  the  amount  of  $436,005.51  as  the  benefit  from significant criminal activity obtained by the first respondent.  The forfeiture sought relates to the sum of $109,275.44 plus interest, held in a specified ANZ bank account in the name of the second respondent, the daughter of the first respondent.

[9]      The first respondent has requested a disputed facts hearing in the District Court to focus on the issue of the quantum of funds fraudulently obtained. Notwithstanding  that,  however,  as  noted,  the  first  respondent  consents  to  the forfeiture orders sought by the applicant.

Analysis

[10]     I am satisfied on the balance of probabilities that the property identified in the application is tainted property, the first respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity, and he has an interest in the property.

[11]     For the purpose of s 53 of the Act the value of that benefit is as stated in the application, that is, $436,005.51.

[12]     The maximum recoverable amount determined in accordance with s 54 of the

Act is the same sum.

[13]     Given those conclusions, pursuant to s 55 of the Act, I must make a profit forfeiture order.

Reparation

[14]     Because  there  is  to  be  a  disputed  facts  hearing  in  the  District  Court, sentencing on the criminal charges to which the first respondent has pleaded guilty has not yet taken place.   There is an issue as to potential reparation to the complainant.   The applicant had made enquiries of the complainant prior to the

application and was informed that the complainant would not personally pursue any freezing of the bank account in the name of the second respondent and would not be pursuing reparation when sentencing of the first respondent takes place.

[15]    The applicant accepts the need to appraise the complainant fully of the circumstances of the application and the order.  Any application of money resulting from the profit forfeiture order is paid in accordance with the provisions of s 83 of the Act, with the third preference being any reparation. The applicant is to advise the complainant of all the circumstances so that the complainant can fully consider its position for the purposes of sentencing.

Result

[16]     For the reasons given, the application for profit forfeiture is granted and the order is made in the terms sought.

Thomas J