Commissioner of Police v Taiapa
[2025] NZHC 466
•11 March 2025
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2023-416-018
[2025] NZHC 466
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an application under s 43, 44 and 52
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
RONGOMAI TIMOTHY TAIAPA
Respondent
Hearing: On the papers Counsel:
M J M Mitchell for Applicant No appearance for Respondent
Judgment:
11 March 2025
JUDGMENT OF GRICE J
(Application for a forfeiture order)
Forfeiture Order
[1] The Commissioner applies for a profit forfeiture order for $80,750, said to be the amount received by the respondent between 1 November 2022 and 12 August 2023 as a consequence of methamphetamine dealing in the Gisborne area.
[2] The Commissioner reached the figure of $80,750 by adding together the cash seized from the respondent’s bedroom of $33,750 on 15 August 2023 plus the purchase price of $47,000 paid by the respondent for a Nissan vehicle purchased on 15 April 2023.
THE COMMISSIONER OF POLICE v TAIAPA [2025] NZHC 466 [11 March 2025]
[3] The property sought to be realised is $33,750 in cash. The vehicle has not been located. The respondent told police on 17 September 2023 he had sold the vehicle although no corresponding receipt of a purchase amount was located in the respondent’s bank account. In the vehicle’s absence, it cannot be realised and the Commissioner acknowledges that it is inappropriate to make an order in relation the vehicle itself.
[4] The affidavit of service indicates that the respondent was personally served with the application for forfeiture on 7 February 2025. The respondent has not participated in these proceedings to date. The respondent did not appear at the call of the matter on 3 March 2025. At that call, this matter was directed to be placed in front of the duty Judge for further consideration.
[5] Restraining orders (subsequently extended until 5 August 2025) have been made for both the cash and the vehicle.1
Background
[6] In the course of Operation Athlete, Mr Taiapa, the respondent was apprehended for methamphetamine dealing which led to him facing the following charges:
(a)Offering to supply the Class A controlled drug methamphetamine x 6;2
(b)Unlawful possession of ammunition;3 and
(c)Operating a vehicle causing a sustained loss of traction.4
[7] On 16 July 2024 Mr Taiapa was convicted and sentenced on the charge of supply of methamphetamine and ammunition charge to 10 and a half months home detention with special conditions and standard post-detention conditions (until six months after release date). He was also disqualified from holding or obtaining a
1 The Commissioner of Police v Taiapa HC Wellington CIV-2021-416-018, 4 February 2025 (Minute of Churchman J). I note that the CIV number on that Minute appears to be incorrect.
2 Misuse of Drugs Act 1975, ss 6(1)(c) and 2(a) —penalty life imprisonment.
3 Arms Act 1983, s 45(1) —penalty four years imprisonment or a fine not exceeding $5000, or both.
4 Land Transport Act 1998, s 22A(3).
driver’s licence for six months, on the charge of operating the vehicle causing sustained loss of traction.5
Legal position on establishment of a profit forfeiture order
[8] The Criminal Proceeds (Recovery) Act 2009 (the Act) provides for the confiscation and forfeiture of certain property where a causal nexus between the acquisition of that property and significant criminal activity can be established.
[9]The purpose is set out at s 3 of the Act as follows:
3 Purpose
(1)The primary purpose of this Act is to establish a regime for the forfeiture of property—
(a)that has been derived directly or indirectly from significant criminal activity; or
(b)that represents the value of a person’s unlawfully derived income.
(2)The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a)eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and
(b)deter significant criminal activity; and
(c)reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and
…
[10] Although dependent on evidence of criminal activity, the proceedings are civil in nature. The standard of proof is that of the balance of probabilities.6 Section 15 of the Act requires the Commissioner to demonstrate that it is more likely than not that the criteria for forfeiture are present in any given case.
5 Police v Rongomai Taiapa [2024] NZDC 16575.
6 Criminal Proceeds (Recovery) Act 2009, s 15.
[11] Section 55 of the Act sets out the criteria for the grant of a profit forfeiture order insofar as is relevant as follows (emphasis added):
55 Making profit forfeiture order
(1)The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
(a)the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
(b)the respondent has interests in property.
(2)The order must specify—
(a)the value of the benefit determined in accordance with section 53; and
(b)the maximum recoverable amount determined in accordance with section 54; and
(c)the property that is to be disposed of in accordance with section 83(1), being property in which the respondent has, or is treated as having, interests.
(3)Subsections (1) and (2) are subject to section 56.
…
[12]“Unlawful benefit” is defined in s 7 of the Act as follows (emphasis added):
7Meaning of unlawfully benefited from significant criminal activity
In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
[13]Significant criminal activity’ is relevantly defined in s 6 of the Act as follows:
6 Meaning of significant criminal activity
(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—
(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
(b)from which property, proceeds, or benefits of a value of the threshold amount or more have, directly or indirectly, been acquired or derived.
…
(3) Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).
[14] In terms of process for determining the grant of a profit forfeiture order, the Commissioner of Police v Irwin,7 noted that the first step is for the Court to determine whether on the balance of probabilities (or more likely than not) that the respondent has knowingly derived a benefit from activity that, if charged as a criminal offence, would be punishable by a term of imprisonment of five years or more.
Analysis on establishment of a profit forfeiture order
[15] In the present case, the respondent has pleaded guilty to offering to supply methamphetamine (an offence punishable by life imprisonment). This carries a term of imprisonment of five years or more, therefore, the respondent’s involvement in a “significant criminal activity” is established under s 6(1)(a) of the Act.
[16] The Commissioner relies on the evidence set out in the affidavit of Detective Kennard dated 5 February 2025 to establish the receipt of a benefit from that activity. Detective Kennard relies on an analysis of the respondent’s bank account showing that he only received WINZ benefit payments of $105,778.19 as well as approximately $7,350 from MK2 Limited and Enforce payroll, in the period of 1 September 2019 and 16 September 2023. In the same period, the respondent banked
$35,036.81 which has no identifiable legitimate source (not associated with benefit or wage payments) being deposits by third parties. Those payments were further analysed by reference to the individual persons named suggesting the payments were likely made by for the supply of methamphetamine.
7 As described in Commissioner of Police v Irwin [2020] NZHC 1370 at [9] and [10].
[17] The further analysis indicates that the respondent must have relied on cash to pay his expenses from 15 September 2023 when his account was depleted to the sum of $-299.91 (debit).
[18] Cash was located at his address of $33,750, when the respondent was arrested, and he had also purchased the Nissan Laurel for $47,000.
[19] Therefore, the requirements of s 55(1)(a) of the Act are made out and I am satisfied that the respondent unlawfully benefited to the extent of the amount of cash and the amount paid for the car.
[20] In relation to the requirement under section 55(1)(b) of the Act, that the respondent has interests in property, the cash in question was located in the respondent’s bedroom. There is no suggestion that it belongs to any person other than the respondent.
[21] I am satisfied that the criteria for a profit forfeiture order are prima facie made out on the balance of probabilities in accordance with s 55(1) of the Act.
Law on what the order must specify and analysis
[22] Accordingly, the next issue for the Court is a determination of the value of the unlawful benefit under s 55(1)(a).
Section 53 of the Act relevantly reads as follows:
53 Value of benefit presumed to be value in application
(1)If the Commissioner proves, on the balance of probabilities, that the respondent has, in the relevant period of criminal activity, unlawfully benefited from significant criminal activity, the value of that benefit is presumed to be the value stated in—
(a)the application under section 52(c); or
…
(2)The presumption stated in subsection (1) may be rebutted by the respondent on the balance of probabilities.
[24] The effect of the above, is that the value of the unlawful benefit in the present case is assumed to be $80,750, as set out in the application, unless the respondent can establish that it is more likely than not to be a lower figure.
[25] The Commissioner has reached the figure of $80,750 not by reference to specific deals or identified bank deposits, but by adding the value of the cash actually located to the purchase price paid for the vehicle.
[26] The Commissioner submits that this is a conservative approach, in that it confines the profit figure to identified assets obtained using the proceeds of methamphetamine dealing and avoids the need to extrapolate data around identified transactions. That would have some added complexity here as the evidence is that most transactions would not have been picked up on the intercepted communications and would have been conducted using cash —therefore would not appear in the banking records.
[27] Ordinarily, the Commissioner says it would have proceeded by way of the asset forfeiture procedure (asserting that these items are tainted property) but given what appears to have been the deliberate disposal or concealment of the vehicle by the respondent, a profit forfeiture order will allow the Commissioner to recover the value of the vehicle even in its absence.
[28]I accept the submissions of the Commissioner that:
(a)The respondent has acknowledged involvement in dealing methamphetamine, and this is confirmed by the further evidence set out in the affidavit of Detective Kennard.
(b)The financial analysis establishes that his legitimate income was minimal.
(c)Nevertheless, during the period of significant criminal activity, the respondent was able to accumulate $33,750 in cash, and paid $47,000 in cash for a car.
(d)It is more likely than not that the acquisition of these assets is explainable by the respondent having received an unlawful benefit that is, at minimum, equivalent to the value of those assets.
[29] The Commissioner also notes that at the sentencing of the respondent in the Gisborne District Court on 16 July 2024, Judge Cathcart said:8
[11] I order the destruction of all items seized and forfeiture of the cash pursuant to s32(3) of the Misuse of Drugs Act 1975.
[30] The Commissioner says that it appears that the prosecutor in the District Court was unaware of the restraining order already in place and failed to alert His Honour of this fact.
[31] I accept that the pre-existing High Court restraining order had the effect of rendering the purported order for forfeiture in the District Court a nullity. In fact, the cash remains in the custody of the Official Assignee. In those circumstances the District Court decision is no bar to the present application being granted.
Conclusion
[32] A profit forfeiture order for $80,750 is made in favour of the Commissioner against the respondent. This is the maximum recoverable amount determined (there is no other property forfeited to the Crown) and there is no property to be disposed of, for the purposes of ss 55(2)(b) and (c) of the Act. That sum includes the sum of
$33,750 in cash presently held by the Official Assignee under a restraining order. I order that cash is to be realised by payment to the Commissioner. No order is made in relation to the Nissan vehicle itself for the reasons set out above.
Grice J
Solicitors:
Elvidge & Partners, Napier for Applicant
8 Police v Taiapa, above n 1.
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