Commissioner of Police v Venn

[2014] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-003429 [2014] NZHC 361

BETWEEN  COMMISSIONER OF POLICE Applicant

ANDDAMIEN KARL VENN First Respondent

EMILY JADE HILL Second Respondent

LUKE WILLIAM COWIE Third Respondent

Hearing:                   On the papers.

Counsel:                  M Regan for the Applicant

M Pecotic for the First and Second Respondents

Judgment:                4 March 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 4 March 2014 at 3.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

COMMISSIONER OF POLICE v VENN & ORS [2014] NZHC 361 [4 March 2014]

Introduction

[1]      The Commissioner and the first and second respondents seek the Court’s approval  pursuant  to  s 95  of  the  Criminal  Proceeds  (Recovery) Act  2009  of  a settlement they have reached in relation to the Commissioner’s application for asset forfeiture, profit forfeiture and related orders under the Act.  The Court is required to approve the settlement if it is satisfied that 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 or expand criminal enterprise.

Background

[2]      Following warranted searches of Mr Venn’s and Ms Hill’s property and motor vehicles, the Police located methamphetamine, chlorpheniramine, pseudoephedrine, snap-lock bags, scales, cash, firearms and ammunition.  As a result of the searches the Police seized the following:

(a)       $45,030.00 cash from a locked safe located under the house. (b)           $25,195.90 cash from Mr Venn’s and Ms Hill’s bedroom.

(c)       $1,295.40 cash from Mr Venn’s wallet and jacket.

(d)$4,000.00 cash in a jacket located on the front seat of a car where the third  respondent  Mr  Cowie  had  been  sitting  immediately prior  to being spoken to by the Police.

(e)       $1,000.00 cash from Mr Cowie’s wallet.

(f)       $1,898.00 from Ms Hill’s handbag.

(g)A 2004 Audi motor vehicle registration number FKA181 registered in the name of Ms Hill (Audi).

(h)A 1996 Chevrolet Tahoe vehicle, registration no. FZB942 registered in the name of Lefthand Rides Limited.

[3]       On 29 August 2013 Priestley J made an order pursuant to s 50 of the Act forfeiting cash to the value of $5,000, the property of Mr Cowie as described in (d) and (e) above.

Proposed settlement

[4]      The proposed settlement is as follows:

(a)       Mr Venn and Ms Hill will consent to an order forfeiting the cash referred to in (a), (b), (c) and (f) above.

(b)The Commissioner agrees not to pursue his application in relation to the Chevrolet and proposes that this be returned to Ms Hill.

(c)       The  Commissioner  agrees  not  to  pursue  his  application  for  profit forfeiture orders; and

(d)      Costs lie where they fall.

Should the settlement be approved?

[5]      The proposed settlement will result in all seized property being forfeited other than the 1996 Chevrolet.   This means that cash totalling $73,419.30 will be forfeited as will the Audi.  The Commissioner will achieve certainty now and avoid litigation risk and costs.  The further costs likely to be incurred by the Commissioner in pursuing the application are unlikely to be economically justifiable having regard to the likely value of the Chevrolet.  The Commissioner proposes not to pursue his application for a profit forfeiture order.  The amount of the benefit specified in the application for the purposes of s 52 of the Act is the sum of $139,419.30.  However, it appears that there are no additional assets available to meet any shortfall.

[6]      The  proposed  forfeiture  of  virtually  all  of  the  seized  assets  is  plainly consistent  with  the  purposes  of  the  Act  as  summarised  above.     While  the

Commissioner is proposing to concede in relation to the Chevrolet and not pursue the profit forfeiture application, I consider that this is justified on economic grounds and is a pragmatic solution that also recognises the risk the Commissioner faces in the proceeding.  In the circumstances, I consider that the settlement is consistent with the purposes of the Act and the overall interests of justice.  I am therefore required to approve the settlement under s 95(3) of the Act.

Result

[7]      I make  an  order  in  terms  of  s 95(3)  of  the Act  approving  the  proposed settlement as set out in [4] above.

[8]      I make an assets forfeiture order under s 50 of the Act so that the property referred to in [2] (a), (b), (c), (f) and (g) above vests in the Crown absolutely and is in the custody and control of the Official Assignee.

[9]      I  make  an  order  directing  the  Official Assignee  to  return  the  Chevrolet referred to in [2] (h) above to the second respondent.

M A Gilbert  J