Commissioner of Police v Toitoi

[2018] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000111

[2018] NZHC 2268

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DAVEY TERAWI HAMIORA TOITOI

First Respondent

ANA MARIA GRIFFIN
Second Respondent

FRANK WERAHIKO HARAWIRA

Interested Party

Hearing:	28 August 2018
Appearances:	S J P Davison for Applicant First Respondent in Person Second Respondent in Person
Judgment:	30 August 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney

on 30 August 2018 at 3.00 pm (re-issued 31 August 2018) pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar Date…………………….

COMMISSIONER OF POLICE v TOITOI & OR [2018] NZHC 2268 [30 August 2018]

Introduction

[1]    The Police executed a  search  warrant  on  4  July  2018  at  a  property  at  74 Waimapu Pa Road. The property is home to the respondents, their five children and two extended adult family members. The search produced eight kilograms of synthetic cannabis in the boot of a vehicle, 50 zip-lock bags each containing approximately 1.3 grams of synthetic cannabis and $40,810, most of which was found in a safe.

[2]    The defendants are facing charges of possessing for sale and of selling a non- approved psychoactive product and of money laundering. They have not yet entered pleas. A Police summary of facts annexed to the affidavit in support of the application refers to statements by the respondents acknowledging the selling of synthetic cannabis, the use of profits from the sales to purchase a relocatable house found on the property, a Chrysler vehicle and that the $40,000 in cash was from the sale of synthetic cannabis.

[3]    The Commissioner has brought two applications. The first seeks restraining and ancillary orders in relation to the Chrysler vehicle, the cash and the relocatable house. The second is an application for assets (or, alternatively profit) forfeiture orders.

[4]    Both applications, together with the supporting affidavit and a notice of date of case management telephone conference were served on the respondents and on an interested party, Frank Harawira. None have taken steps to oppose the applications. At the telephone conference yesterday, Mr Toitoi and Ms Griffin appeared in person but Mr Harawira did not. The Commissioner sought to have the orders made as sought.

The applications

[5]    A restraining order may be made under the Criminal Proceeds (Recovery) Act 2009 (CPRA) if the Court is satisfied that it has reasonable grounds to believe that the

subject property is tainted property.1 Property is tainted property if it has wholly or partly been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.2 “Significant criminal activity” is criminal activity engaged in by a person that, if proceeded against as a criminal offence, would amount to offending that consists of, or includes, offences punishable by a maximum of five years’ imprisonment or more; or from which property, proceeds or benefits of a value of $30,000 or more have been acquired or derived, either directly or indirectly.3

[6]    The sale of synthetic cannabis contrary to the Psychoactive Substances Act 2013 carries a maximum penalty of two years’ imprisonment, so that aspect of the respondents’ conduct does not fall within the first limb of the definition of “significant criminal activity”. However, the money laundering charge carries a maximum penalty of seven years’ imprisonment. In any event, it is also alleged that the respondents obtained property, proceeds or benefits in excess of $30,000 or more from the sale of the synthetic cannabis, so that the circumstances of the case fall within the second limb of the definition of significant criminal activity.

[7]    If satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that property.4 Such an order must specify that the property vests in the Crown absolutely and is in the custody and control of the Official Assignee.5

[8]    Mr Toitoi and Ms Griffin confirmed that they did not intend to take steps to oppose either of the applications and did not object to the making of the orders that the Commissioner sought in respect of the Chrysler motor vehicle and the cash. However, they say they do not have any interest in the relocatable house. Ms Griffin advised that the house belonged to Mr Harawira, who has not taken any steps. I took the view that Mr Harawira ought to be given the opportunity of taking steps. I have subsequently learned that there are bankruptcy proceedings on foot against

1      Criminal Proceeds (Recovery) Act 2009, ss 24, 25.

2      Criminal Proceeds (Recovery) Act 2009, s 5.

3      Criminal Proceeds (Recovery) Act 2009, s 6(1).

4      Criminal Proceeds (Recovery) Act 2009, ss 43, 44, 49, 50 and 52.

5      Section 50(3).

Mr Harawira.6 Depending on the outcome of those proceedings, it may be that the Official Assignee will wish to take steps.

[9]    In the circumstances, I am satisfied that the orders that the Commissioner seeks in respect of the vehicle and the cash ought to be made. Accordingly:

(a)the 2007 Chrysler 300C 5.7L V8 sedan registration DYK65 is not to be disposed of, or dealt with, other than as is provided for in the restraining order and is to be in the Official Assignee’s custody and control; and

(b)the Official Assignee is authorised to sell the said Chrysler motor vehicle and the proceeds of sale are to vest in the Crown absolutely;

(c)the cash of $40,810 is to be in the Official Assignee’s custody and control and is to vest in the Crown absolutely.

[10]In relation to the relocatable house:

(a)There is a restraining order under which the relocatable house is not to be disposed of, or dealt with and is to be in the Official Assignee’s custody and control;

(b)The application for forfeiture of the relocatable house is adjourned to a telephone conference at 9.30 am on 30 October 2018. If Mr Harawira or any other person claiming an interest in the relocatable house wishes to take steps, they must file a notice of opposition and supporting affidavit by Monday, 22 October 2018.

P Courtney J

6      Bay of Plenty House Removals Ltd v Harawira CIV-2017-470-65.