Commissioner of Police v Thompson

[2013] NZHC 2926

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004407 [2013] NZHC 2926

UNDER  the Criminal Proceeds (Recovery) Act

2009

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDSYDNEY PHILLIP THOMPSON Respondent

Hearing:                   6 November 2013

Appearances:           T Refoy-Butler for the Applicant No appearance for the Respondent C Peter for Mr Tautalanoa

Judgment:                6 November 2013

ORAL JUDGMENT OF GILBERT J

THE COMMISSIONER OF POLICE v SYDNEY PHILLIP THOMPSON [2013] NZHC 2926   [6 November

2013]

[1]      The Commissioner applies for a profit forfeiture order pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009.  Mr Thompson has taken no steps to oppose the application.

[2]      The Court must make a profit forfeiture order if it is satisfied on the balance of  probabilities  that  Mr  Thompson  has  unlawfully  benefitted  from  significant criminal activity within the relevant period and has interests in property.

[3]      Mr  Thompson  was  arrested  on  11  April  2013  and  is  currently  facing

17 charges,  including 10  of obtaining over $400,000  by deception  in  breach  of s 240(1)(a) of the Crimes Act 1961.  These offences are punishable by imprisonment for a term not exceeding seven years.

[4]      The evidence provided on behalf of the Commissioner, which has not been contradicted, is that Mr Thompson and another person fraudulently obtained monies from Work and Income New Zealand (WINZ) over an extended period.  The scheme involved Mr Thompson registering with WINZ as a pre-approved service provider of dental  and  optometry  treatment  under  the  trading  name  Vichson Dentists  and Optometry.    Mr Thompson is not a qualified dentist or optometrist and does not have a dental surgery or optometry clinic.  He then solicited friends and associates to apply for Special  Needs  Grants  and  allowances  to  pay for such  services.   The payments were made into Mr Thompson’s bank account and then split with the claimants.  A total of $374,315.64 was paid by WINZ to this account in respect of services claimed to have been provided to 280 beneficiaries.

[5]      WINZ also approved Mr Thompson as a supplier of furniture and whiteware under the trading name Thompson and Thompson Rentals.  He similarly defrauded WINZ  using  this  business.    A total  of  $32,498.73  was  paid  by  WINZ  to  the Thompson & Thompson bank account in respect of goods claimed to have been supplied to beneficiaries.

[6]      I am satisfied on the basis of the evidence that Mr Thompson has benefitted from significant criminal activity as defined in s 6 of the Act.   The value of the

benefit is presumed to be the value stated in the Commissioner’s application,1 being the sum of $406,814.37.  The presumption may be rebutted by Mr Thompson on the balance of probabilities but he has chosen not to attempt to discharge that onus.

[7]      Mr Thompson claims to be entitled to a one half share in the equity in the property at 1/281 Shirley Road, Papatoetoe, Auckland, described in the certificate of title NZ128B/17 being Flat 1 DP 199721 on Lot 2 DP 44805.   This property is registered  in  the  name  of  Mr  Tautalanoa  who  purchased  the  property  from Mr Thompson  in  2007  on  the  basis  that  he  would  take  responsibility  for  the mortgage and pay for Mr Thompson’s ex wife’s share of the property.  I am satisfied that Mr Thompson has an interest in this property.  The two requirements set out in s 55(1) of the Act having been satisfied, I am obliged to make a profit forfeiture order.

[8]      I therefore make a profit forfeiture order in terms of s 55 of the Act.   The value of the benefit determined in accordance with s 53 is the sum of $406,814.37. The maximum recoverable amount determined in accordance with s 54 is the sum of

$406,814.37.   The parties agree that the value of Mr Thompson’s  equity in the

property is $59,396. This is the property to be disposed of.

[9]      I record that Mr Tautalanoa consents to the terms of this profit forfeiture order and has consented to acquiring Mr Thompson’s interest in the property by paying the sum of $59,396 to the Official Assignee.

[10]     I reserve leave to  the  parties and  to  Mr Tautalanoa to  apply for  further directions should that be required to implement the terms of this order.

M A Gilbert J

1 s 53(1) of the Act.