Commissioner of Police v Thomas

[2016] NZHC 781

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-263 [2016] NZHC 781

UNDER

the Criminal Proceeds (Recovery) Act

2009

IN THE MATTER OF

an application pursuant to sections 22, 24 and 25

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

NIGEL EDWARD THOMAS Respondent

On thepapers:
Counsel:	E M Light for Applicant A Davie for Respondent
Judgment:	22 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4.00 pm on 22 April 2016

THE COMMISSIONER OF POLICE v THOMAS [2016] NZHC 781 [22 April 2016]

Introduction

[1]      The  Commissioner  of  Police  has  filed  applications  for  assets  and  profit forfeiture orders (the applications) under the Criminal Proceeds (Recovery) Act 2009 (the Act)  in respect of funds totalling $72,160 currently being held by the Official Assignee and previously held by the respondent in the form of Bonus Bonds plus any interest accrued (the property).   It is proposed on an agreed basis that the property be forfeited.

[2]      The parties seek this Court’s approval under s 95 of the Act to approve a settlement.

Background

[3]      On 10 April 2015 a without notice restraining order was granted in respect of the following property:

(a)       funds  totalling  $77,160  being  held  by  the  Official  Assignee  and previously held by the respondent in the form of Bonus Bonds;

(b)      a Voyager trailer registered to the respondent and a Jetski on the

Voyager trailer;

(c)       a 2007 Holden Commodore.

[4]      On 16 April 2015 the applicant filed an on notice application for a restraining order.  The application was granted without opposition on 18 May 2015 in respect of the property listed at (a) and (b) above.

[5]      On 18 June 2015 the applicant filed a memorandum attaching an application for further orders varying the property to which the restraining order applied asking that the Holden Commodore be removed from the ambit of the order.   That application was granted.   Accordingly the Holden Commodore is no long part of these proceedings.

Criminal prosecution proceedings

[6]      The   respondent   was   sentenced   in   the   Wellington   District   Court   on

9 December 2015  to  four  months  of  community  detention  and  200  hours  of community work in relation to a charge of being a party to the importation of a class C controlled drug.

The proposed settlement

[7]      Mr Thomas and the Commissioner have now reached a settlement under which  Mr Thomas  consents  to  the  application  for  asset  and  profit  forfeiture. Specifically it is agreed that the funds totalling $72,160 currently being held by the Official Assignee and previously held by Mr Thomas in the form of Bonus Bonds plus  any interest  accrued  is  forfeited.    The  jetski  and  trailer  and  $5,000  under restraint are to be returned to the respondent and costs are to lie where they fall.

[8]      While the Commissioner may enter into a settlement with any person as to the property or sum of money to be forfeited to the Crown a settlement does not bind the parties unless approved by the High Court.  If the High Court is satisfied that the settlement is consistent with the purposes of the Act and the overall interests of justice it must approve the settlement.1

[9]      The primary purpose of the Act is to establish a regime for the forfeiture of property:2

(a)       that has been derived from significant criminal activity; or

(b)      that represents the value of a person’s unlawfully derived income.

[10]     The forfeiture regime is to eliminate the chance for persons to profit from significant criminal activity and curtail the expansion of criminal enterprise.

[11]     In this case the orders sought would forfeit property that is tainted and that represents the unlawful benefit the respondent has received from significant criminal

1      Criminal Proceeds (Recovery) Act 2009, s 95.

2      Criminal Proceeds (Recovery) Act 2009, s 3(1).

activity.  The parties agree the property is tainted and that the respondent received an unlawful benefit and that the orders may be made on that basis.  The respondent has signed a consent memorandum consenting to the applications.

[12]     I am satisfied that in all the circumstances the settlement is consistent with the purposes of the Act and the interests of justice.

[13]     Accordingly the settlement is approved and the following orders are made:

(a)       The following property vests in the Crown absolutely and is to be in

the Official Assignee’s custody and control:

(i)funds totalling $72,160 currently being held by the Official Assignee and previously held by the respondent in the form of Bonus Bonds plus any interest accrued.

(b)The remaining $5,000 in funds and Jetski and trailer under restraint is to be returned to the respondent.

(c)       The restraint proceedings are discontinued.

(d)      Costs shall lie where they fall.

Karen Clark J

Solicitors:

Crown Solicitor, Wellington for Applicant