Commissioner of Police v Tobin

[2018] NZHC 921

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2013-485-3149

[2018] NZHC 921

IN THE MATTER

of an application pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

JOSEPH THOMAS TOBIN

First Respondent

MASON JOSEPH TOBIN
Second Respondent

JOANNE TOBIN

First Interested Party

WESTPAC NEW ZEALAND LIMITED
Second Interested Party

AMP HOME LOANS LIMITED
Third Interested Party

PORIRUA CITY COUNCIL

Fourth Interested Party

Hearing:	On the papers
Counsel:	G J Burston and E M Light for Applicant S Hewson for First Respondent
Judgment:	3 May 2018

JUDGMENT OF CHURCHMAN J

THE COMMISSIONER, THE NEW ZEALAND POLICE v TOBIN & ORS [2018] NZHC 921 [3 May 2018]

Introduction

[1]                  On 30 July 2013, the Court issued a without notice restraining order in respect of property that was detailed in that order. That property included residential property located at 122 Conclusion Street, Ascot Park, Porirua described under certificate of title WN18C/1122; a boat shed property located at 21 South Beach, Titahi Bay, held on land leased from the Porirua City Council bearing number 74 above its entrance and being referred to as BOA0125 in Porirua City Council records; a 2009 Holden Commodore SV6 Sedan motor vehicle registration FDM242; and the sum of $50,000 held by the New Zealand and Solvency & Trustee Service Proceeds of Crime Account (Official Assignee’s trust account).

[2]                  The without notice restraining order also covered other property which the first respondent had an interest in but this other property is not the subject of this decision as the second respondent has an interest in it and issues as between the Commissioner and the second respondent in relation to the property have not yet been resolved.

[3]                  The first respondent was convicted and sentenced in the Wellington District Court on 16 March 2016 to two and a half years’ imprisonment in relation to a number of drug related charges.

[4]                  The applicant and first respondent have come to an agreement that the restraining order and profit forfeiture applications filed by the applicant under the Criminal Proceeds (Recovery) Act will be resolved by the sum of $50,000 held by the New Zealand Insolvency & Trustee Service in their proceeds of crime account (Official Assignee Trust Account) being forfeited to the Crown.

[5]                  Section 95 of the Criminal Proceeds (Recovery) Act 2009 requires that the High Court approve any settlement between the Commissioner and any other party.

[6]                  The Court must be satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice.

[7]                  The applicant submits that the proposed settlement, which results in the forfeiture of property that represents an unlawful benefit that the first respondent has received from significant criminal activity, is consistent with the purposes of the Act and the overall interest of justice.

[8]                  I am satisfied that the profit forfeiture order sought is consistent with the requirements of s 95. I therefore confirm the order in terms of the joint memorandum and the draft orders filed with the consent memorandum of 22 March 2018.

[9]                  The overall effect of this order is that the $50,000 is forfeit to the Crown, the properties at 122 Conclusion Street, Ascot Park, Porirua and the boat shed located at 21 South Beach, Titahi Bay referred to as BOA0125 in the Porirua City Council records, together with the 2009 Holden Commodore SV6 Sedan motor vehicle registration FDM242 are released from the restraining order which is varied accordingly.

Churchman J

Solicitors:

Crown Solicitor’s Office, Wellington, for Applicant Ord Legal, Wellington for First Respondent

E Hall, Wellington for Second Respondent