Commissioner of Police v Te Riini
[2024] NZHC 957
•29 April 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2019-463-81
[2024] NZHC 957
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
SHANNON MANSELL TE RIINI
Respondent
Continued:…/2
Hearing: On the papers Appearances:
R W Jenson for Applicant W T Nabney for Respondent
A Hill for First Interested Party
Judgment:
29 April 2024
JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Pollett Legal Limited, Tauranga W Nabney, Tauranga
Robinson Law Limited, Whakatane
THE COMMISSIONER OF POLICE v TE RIINI [2024] NZHC 957 [29 April 2024]
Continued…
MICHELLE MERANI SAVAGE
First Interested Party
ALFRED LINDSAY SAVAGE
Second Interested Party
[1] On 13 May 2022, the Commissioner of Police applied for a profit forfeiture order in respect of the respondent’s home address with the value of the benefit quantified as $592,744.52.
[2] The significant criminal activity which underpins the application concerns the respondent’s involvement in commercial drug dealing captured by a police operation known as “Operation Notus”. Mr Te Riini was convicted of charges relating to that operation in May 2020.
[3] The profit forfeiture amount was calculated largely based on admissions made by Mr Te Riini as to the quantity of methamphetamine that he was consuming during the period of the offending. If the admissions are correct, it can be inferred he had access to over $500,000 in order to pay for the methamphetamine consumed.
[4] Mr Te Riini contends that the amounts of methamphetamine he used was exaggerated and it is therefore improper to calculate the profit forfeiture amount on the basis of those admissions.
[5] The Commissioner and Mr Te Riini have now agreed that amended profit forfeiture orders can be made with the value of the benefit being $270,000 and with the proviso that Mr Te Riini be given the ability to satisfy the profit forfeiture order by raising finance. Should Mr Te Riini be unable to raise the maximum recoverable amount, then his home address will be sold to satisfy the order.
[6] The applicant and respondent seek approval of the settlement arrangements pursuant to s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).
Legal principles
[7] Section 95 of the Act provides that 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 but that settlement does not bind the parties unless approved by the High Court.
[8]The High Court must approve the settlement if satisfied it is consistent with:1
(a)the purposes of the Act; and
(b)the overall interests of justice.
[9] In Commission of Police v Cherrington Toogood J set out the principles to be applied as follows:2
(a)civil litigation incurs substantial costs for the parties, a significant portion of which would not usually be recoverable under the rules of Court relating to payments of costs;
(b)it is in the public interest to avoid the burden on the Court of complex and lengthy civil litigation;
(c)there is also strong public interest in litigation of this nature being brought to a prompt conclusion, so long as the settlement reflects the likely costs and risks inherent in the determination of a contested application;
(d)approval of any settlement by the Court acting in its supervisory jurisdiction requires consideration of the legislative intent and the overall interests of justice and is not a rubber-stamping exercise; and
(e)a broad inquiry is required, recognising that the decision to settle proceedings under the Act may be made on economic and pragmatic grounds and often reflects a “common sense compromise” between the parties.
(footnotes omitted)
Decision
[10] In the present case there are two interested parties. The first is Mr Te Riini’s partner, Ms Savage, and the second is Ms Savage’s father, Alfred Savage.
[11] So far as Ms Savage is concerned, the Commissioner’s position is that she would have been aware of Mr Te Riini’s involvement in significant criminal activity due to the nature of alterations to the property and the lack of any legitimate cash source for the family. The Commissioner maintains his position with respect to
1 Criminal Proceeds (Recovery) Act 2009, s 95(3).
2 Commission of Police v Cherrington [2022] NZHC 1396 at [20].
disputed issues including Ms Savage’s knowledge of the significant criminal activity and the amount of methamphetamine used by Mr Te Riini.
[12] However, both parties acknowledge the litigation risk they all bear in relation to the proceedings.
[13] The second interested party, Mr Alfred Savage, has taken no steps. Mr Te Riini and Ms Savage confirm that any interest he had in the property is accounted for by way of the proposed settlement.
[14] Having regard to the matters for which Mr Te Riini was convicted and the evidential basis for those convictions, I am satisfied that the proposed settlement arrangement is consistent with the purpose of the Act and the overall interests of justice.
[15] In particular, the arranged settlement does provide for the forfeiture of the property derived directly or indirectly from significant criminal activity, it diminishes the profit obtained by the respondent from the criminal activity and it has potential to deter significant criminal activity in the future.3 Further, I agree that the proposed settlement is in the interests of justice as it provides for prompt forfeiture of the relevant property without the need for further proceedings. It reflects matters that are arguable in opposition to the Commissioner’s claims and the usual litigation risks.
[16]The arrangement also meets the interests of the two interested parties.
Orders
[17]Accordingly, I make the following orders by consent:
Orders relating to the settlement under s 95 of the Criminal Proceeds (Recovery) Act 2009
(a)the settlement arrangement is approved by this Court pursuant to s 95 of the Criminal Proceeds (Recovery) Act 2009;
3 Criminal Proceeds (Recovery) Act 2009, s 3.
(b)the orders sought in the profit forfeiture application can be made by consent; and
(c)there is no issues as to costs between the parties.
Orders sought in the profit forfeiture application
Order 1
(a)the value of the benefit is $270,000.00;
(b)the maximum recoverable amount is $270,000.00; and
(c)the following property is to be realised on the basis set out in Order 2:
(i)All that parcel of land known as 29 Beattie Road, Kawerau (Beattie Road) being all that land comprised and described in the record of title unique identifier SA32A/877, South Auckland Land Registration District being 909 square metres more or less described as Lot 187 deposited plan 35470.
Order 2
(a)The maximum recoverable amount is to be realised as follows:
(i)By way of Mr Te Riini paying the sum of the maximum recoverable amount to the Official Assignee by 5.00 pm on 12 August 2024.
(ii)Upon the Official Assignee providing written confirmation that the sum of the maximum recoverable amount has been paid in full Beattie Road is to be released from restraint.
(iii)Should Mr Te Riini be unable to pay the maximum recoverable amount within the prescribed time period, the Beattie Road property is to be sold by the Official Assignee and the proceeds
of sale paid in the following order to satisfy this profit forfeiture order:
1. first, deduct the Official Assignee’s cost in effecting sale;
2. second, effect forfeiture of $270,000 (or less if partial payment of the maximum recoverable amount has been made in accordance with Order 2(a)(i) above); and
3. finally, return the balance of the sale proceeds to a bank account nominated by Mr Te Riini and Ms Savage.
(iv)For the purposes of effecting the sale of Beattie Road, the Official Assignee has the power to execute any deed or instrument in the name of the registered owners of the property, and do anything necessary to give validity and operation to the deed and instrument.
(v)For the avoidance of doubt, Beattie Road is to remain in the custody and control of the Official Assignee until either the provisions of Order 2(a)(ii) or (a)(iii) above have been satisfied.
Wilkinson-Smith J
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