Commissioner of Police v Thacker

[2025] NZHC 741

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-50

[2025] NZHC 741

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

JIM DAVID THACKER

Respondent

HONE JOHN MCCAULEY RONAKI
Respondent

PANE JASMIN HART
Respondent

contd over

Hearing:

On the papers

Appearances:

L J Clay for Applicant

R Nabney for Jim Thacker H Smith for Hone Ronaki M J Phelps for Pane Hart

Judgment:

1 April 2025

JUDGMENT OF LANG J

[approval of settlement]

This judgment was delivered by Justice Lang

On 1 April 2025 at 1.00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Pollett Legal, Tauranga W T Nabney, Tauranga

R M Mansfield KC/H Smith, Auckland M J Phelps, Hastings

THE COMMISSIONER OF POLICE v THACKER & ORS [2025] NZHC 741 [1 April 2025]

KELLY JAMES PETROWSKI

Respondent

LANCE THACKER
Interested Party

DIANE MAGGIE TAMAKU THACKER
Interested Party

BARBIE JEAN JAMIE REID
Interested Party

PAULA MARINA WANOA
Interested Party

EPHRON RONAKI
Interested Party

PETER NETANA TE HAU
Interested Party

[1]    In this proceeding the Commissioner of Police seeks profit forfeiture orders against the third respondent, Mr Pane Hart. The parties have now reached a settlement and seek the court’s approval to this under s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

Background

[2]    Mr Hart came to the attention of the police during a long running covert investigation known as “Operation Silk”. This investigated the manufacture and supply of Class A, B and C drugs in the Waikato and Auckland areas. During the investigation, the police acquired evidence suggested that Mr Hart was involved in the supply of cocaine. However, he was never charged with drug-related offending and those allegations have never been established.

[3]    The investigation also revealed that Mr Hart had committed benefit fraud by receiving several benefit payments to which he was not lawfully entitled. In its original form the Commissioner sought profit forfeiture orders in the sum of

$96,130.47. This sum represented the monetary benefits the Commissioner alleged Mr Hart had received through selling cocaine. The Commissioner now pursues the application on the basis of the unlawful monetary benefit Mr Hart received by way benefit overpayments.

The proposed settlement

[4]    Both parties acknowledge that the calculation of the alleged overpayment of benefit payments is likely to require additional expert evidence because Mr Hart may have been entitled to some benefits, albeit of a lesser amount than those he received. They therefore acknowledge that they face litigation risk, together with the inevitable cost of pursuing and defending the claim.

[5]    Two motorcycles belonging to Mr Hart are currently subject to restraining orders issued under the Act. The Commissioner accepts that Mr Hart did not acquire these using funds derived from criminal activity. However, they are available to satisfy any profit forfeiture order that might be made.

[6]    The proposed settlement involves a profit forfeiture order being made against Mr Hart in the sum of $91,130. The sale proceeds of the restrained motorcycles will go some way towards satisfying the profit forfeiture order. However, they will not satisfy it in full.

[7]    The Commissioner is satisfied that Mr Hart does not have an asset base at his disposal to enable him to satisfy the balance of the order. The Commissioner therefore accepts that Mr Hart’s liability under the profit forfeiture orders should be limited to the value of the proceeds of sale of the two motorcycles.

Decision

[8]    I am satisfied that the proposed settlement represents a pragmatic resolution of the proceeding so far as both parties are concerned. It will effectively require Mr Hart to forfeit the value of two motorcycles that he acquired lawfully. This will result in him refunding benefit overpayments to that value. The outcome is consistent with the purposes of the Act because it diminishes any unlawful monetary benefits Mr Hart may have obtained through the overpayments. It is also likely to deter him from engaging in significant criminal activity in the future.

[9]    The settlement is also in accordance with the interests of justice because it enables resolution of the claims against Mr Hart at this point and precludes the need for further expenditure by the Commissioner.

[10]   I therefore approve the settlement under s 95 of the Act. The costs of the present proceeding are to lie where they fall.

Lang J