Commissioner of Police v Veevers

[2017] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV 2014-409-142

[2017] NZHC 80

IN THE MATTER OF

an application pursuant to ss 22, 24 and 25 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF THE NEW ZEALAND POLICE

Applicant

AND

GIOVANNI SHANE ROBERT VEEVERS (AKA WILLIAMS)

First Respondent

KELLY BARBARA VEEVERS (AKA WILLIAMS)

Second Respondent

AND

BANK OF NEW ZEALAND

Third Party

Hearing:	2 February 2017
Appearances:	H McKenzie for the Applicant C Ruane for the Respondents
Judgment:	3 February 2017

JUDGMENT OF MANDER J

[1]    The Commissioner of Police has applied for assets and profit forfeiture orders in relation to the property of the first and second respondents, Giovanni and Kelly Veevers (Mr and Mrs Williams). These applications were opposed.

[2]    During the course of the hearing of the Commissioner’s applications for these orders I was advised the parties had reached a settlement. Such settlement, however, is subject to the approval of the Court. Under s 95 of the Criminal Proceeds

COMMISSIONER OF THE NEW ZEALAND POLICE v VEEVERS (AKA WILLIAMS) [2017] NZHC 80 [3

February 2017]

(Recovery) Act 2009 (the Act) any such settlement does not bind the parties unless the Court approves it. I have dealt with this file at various stages during the course of its interlocutory processes, including giving judgment in relation to the Commissioner’s application for the property the subject of the Commissioner’s application to be restrained and placed into the custody and control of the Official Assignee.1

[3]    The property the subject of the applications are the land and buildings at     34 Sidey Quay, Kaiapoi, owned by both respondents, and a Chrysler motor vehicle registered in the name of the first respondent. At the time the Commissioner made his applications the Sidey Quay property had a rateable value of $340,000 and was subject to a mortgage in favour of the Bank of New Zealand for $17,499.63. The motor vehicle, as at June 2015, was valued at approximately $13,000-$15,000.

[4]    The grounds on which the Sidey Quay property was sought to be forfeit was that it had wholly or in part been acquired as a result of, or directly or indirectly from, significant criminal activity. In that regard, the first respondent was convicted of cultivating cannabis from 13 January 2012 to 4 February 2014. This charge has a maximum penalty of seven years imprisonment and, because it carries a maximum penalty of five years or more, under s 6(1)(a) of the Act constitutes “significant criminal activity”. Mr Williams was also convicted of a further cannabis related charge of possessing equipment for the purpose of cultivation which carries a maximum five year penalty. Based on the respondents unexplained cash income, the Commissioner also considered it likely that the respondents have been engaged in tax evasion under the Tax Administration Act. The offence of tax evasion under s 143B of that Act carries a maximum penalty of five years imprisonment and also qualifies as “significant criminal activity”.

[5]    The grounds on which the profit forfeiture order was sought were that the respondents have, between 1 April 2007 to 4 February 2014, unlawfully benefitted to the value of $287,734.77 from significant criminal activity, namely cultivation of cannabis and possession of equipment, and potentially tax evasion.

1      Commissioner of New Zealand Police v Veevers [2014] NZHC 1344.

[6]    In support of these applications the Commissioner relies on affidavits filed by a financial analyst, Melanie van der Pol, and a senior investigator attached to the Commissioner’s Southern Asset Recovery Unit in  Christchurch,  Wendy  Riach.  Mr Williams, the first respondent, filed an affidavit in opposition to the Commissioner’s applications seeking to account for cash income acquired over the course of the period the subject of the Commissioner’s investigation.

[7]    The Commissioner’s case is based upon an analysis of the income available to the respondents in comparison to their outgoings and standard of living. It is apparent from the evidence that the respondents had access to an undeclared source of funds. Mr Williams sought to account for that cash income in various ways, including family assistance, income generated by boarders, muttonbirding, and extensive trading in legitimate goods. The Commissioner made further inquiries. The result of those further investigations and his analysis of the explanations provided by the first respondent does not appear to support the plausibility of these claimed sources of income.

[8]    In granting the Commissioner’s application for restraining orders, I concluded as follows:

[60] ... notwithstanding the respondents claims of this cash income being sourced from legitimate activities, in my view, the discrepancy between identified legitimate sources of income and the cash apparently available to them over such an extended period remains largely unexplained. When that is set against a not insignificant and well-established cannabis cultivation operation, I am satisfied there are reasonable grounds to believe the respondents have unlawfully benefitted from significant criminal activity...

Proposed settlement

[9]The proposed settlement is as follows:

(a)The first and second respondents will pay the Commissioner of the New Zealand Police $260,000 within 28 days and consent to final forfeiture of the black Chrysler 300C, formally registered as THBØSS (the restrained vehicle).

(b)Upon payment of $260,000 within 28 days and forfeiture of the black Chrysler 300C, registration THBØSS, the  Commissioner  of  the  New Zealand Police will discontinue his application for asset and profit forfeiture orders, and will discharge the restraining order.

(c)If settlement is not thus effected by the first and second respondents the Official Assignee can immediately sell the property at 34 Sidey Quay, Kaiapoi, without further order of the Court, and:

(i)retain $260,000; and

(ii)retain the costs associated with selling the property at 34 Sidey Quay, Kaiapoi; and

(iii)retain the costs associated with the storage and otherwise associated with the Chrysler since the time of restraint; and

(iv)retain and liquidate the Chrysler; and

(v)will return the balance of the proceeds of the sale to the first and second respondents.

Should the settlement be approved?

[10]   The Court is required to approve the settlement if it is satisfied it is consistent with the purposes of the Act and the overall interests of justice. The purposes of the Act include deterring significant criminal activity, eliminating the opportunity to profit from such activity, and reducing the ability of criminals and others to continue to expand criminal enterprises. The approval by the Court of a proposed settlement is not a rubberstamping exercise, with the Court having been entrusted with a supervising jurisdiction to ensure that settlements are consistent with Parliament’s intention in enacting the statute.2

2      Commissioner of New Zealand Police v Bradley & Ors HC Rotororua CIV-2011-463-000675, 5 July 2012, at [9].

[11]   The proposed settlement results in the payment of $260,000 to the Commissioner. The forfeiture of the restrained vehicle is a comparatively modest outcome. The settlement provides the respondents with the opportunity to avoid forfeiture of their Sidey Quay property upon payment of the agreed sum and forfeiture of the vehicle.

[12]   I am satisfied that in the circumstances the settlement is consistent with the purposes of the Act and reflects a pragmatic arrangement that provides the respondents with the opportunity to retain their property in return for the payment of a sum of money which reflects the apparent profit obtained from the significant criminal activity. There will be a significant saving of time and cost as a result of this settlement which, in my view, is consistent with the purposes of the Act. The overall interests of justice are enhanced by this arrangement, allowing certainty to be achieved, and avoiding litigation. It represents a sensible resolution based on the state of the affidavit evidence.

[13] Accordingly, I am satisfied the settlement reasonably represents the value of the unlawfully derived income and that, in the circumstances of the case, it is in the overall interests of justice for the Court to approve the settlement. Accordingly, I make an order in terms of s 95(3) of the Act approving the proposed settlement as set out in [9].

[14]   In order to provide sufficient time for the settlement to be given effect, the Commissioner’s applications are adjourned to the duty Judge list at  11.45  am  on  13 March 2017.

Solicitors:

Raymond Donnelly & Co, Christchurch C M Ruane Barrister, Christchurch