Commissioner of Police v Spear

[2024] NZHC 3268

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-000292

[2024] NZHC 3268

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

JONATHAN CLAY SPEAR

Respondent

Hearing:	On the papers
Counsel:	J N Hamilton for Applicant
Judgment:	5 November 2024

JUDGMENT OF WHATA J

This judgment was delivered by me on 5 November 2024

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Hamilton Legal (Office of the Crown Solicitor), Hamilton

THE COMMISSIONER OF POLICE v SPEAR [2024] NZHC 3268 [5 November 2024]

Introduction

[1]        This is an application for forfeiture orders.

[2]        The background is helpfully set out in the memorandum of Counsel for the Commissioner:

Basis of application

4The type 1 assets forfeiture order is sought on the grounds that the cash is tainted property having been wholly or in part acquired or derived from the respondent's significant criminal activity being the supply of methamphetamine.

5The affidavit of William Wharton Cassidy dated 19 September 2024 filed in support of the application, provided the evidential basis for the application.

6In short, on 24 November 2021 the respondent Mr Spear and his partner rented rural accommodation in Karapiro, Waikato through the Air Bnb website. During the course of their stay the owners of the property, who lived nearby, raised concerns as a result of visitors coming and going from the property.

7As a result of their concerns, Police were contacted and made an enquiry at the property on 26 November 2021.

8Upon Police arrival Mr Spear ran from the house into the garden where he discarded a plastic snap lock bag which contained 506.8 grams of methamphetamine. Upon his arrest he attempted to disgard

$1,590.00 cash on to the ground.

9Police conducted a search of the dwelling and vehicle parked at the property and located within the lounge a black Adidas bag which contained $35,087.00 in cash, the bulk of which was in bundled 'bricks', further smaller amounts of methamphetamine in snaplock bags. Additionally, Police located electronic scales, unused snaplock bags and a money counter which are common indicia of drug dealing, Police also found several tick lists with sums in excess of $100,000.00 owing and two loaded pistols.

10The total amount of methamphetamine located – 534 grams – had a potential street value of $267,100.00.

11The cash that is the subject of the application was located as follows:

10.1$1,590.00 in cash ($1,590.00 in cash) – thrown into the garden by Mr Spear;

10.2$35,052.00 in cash ($35,052.00 in cash) – found in bundles in an Adidas bag belonging to Mr Spear;

10.3$35.00 in cash ($35.00 in cash) – found within the Adidas bag.

12Mr Spear was subsequently charged and pleaded guilty to possession of methamphetamine for supply x 2, unlawful possession of a pistol x 2, possession of cannabis and breaching release conditions. He was sentenced by Judge Marshall in the Hamilton District Court on 20 September 2022 to 6 years' imprisonment.

13Subsequent enquiries conducted by the Commissioner with Inland Revenue (IR) revealed that between 2016 and 2022 Mr Spears' cleared income was from the Ministry of Social Development, whose declared income to IR was such that he had limited means by which to fund lifestyle and living related expenses and from which to source the $36,677.00 cash.

14On 18 August 2023, the respondent was spoken to by Mr Cassidy at Hawke's Bay Regional Prison, he admitted the cash was his but was not willing to provide an explanation as to its source. Mr Spear told Mr Cassidy he did not oppose the forfeiture of the cash.

Order sought

15Accordingly, the Commissioner respectfully seeks the forfeiture of the

$36,677.00 by way of a type 1 assets forfeiture order on the basis the Court can be satisfied, on the balance of probabilities, the money is tainted property having been acquired or derived from significant criminal activity, namely the supply of methamphetamine.

(footnotes omitted)

Service

[3]        Mr Spear was served with a copy of these proceedings on 25 September 2024. No opposition has been filed to the application.

Assessment

[4]        I accept that there is a clear basis for the forfeiture order. More specifically I am satisfied on the balance of probabilities that the money is tainted property having been acquired or derived from significant criminal activity, namely the supply of methamphetamine.1

1      As required by s 50 of the Criminal Proceeds (Recovery) Act 2009.

[5]        There shall be an order in the terms set out in the draft forfeiture order attached to the application.

Whata J