Commissioner of Police v Walker

[2023] NZHC 3845

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-93

[2023] NZHC 3845

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 21, 24 and 25 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

SHARNA JOYCE WALKER

Respondent

Hearing:

4 December 2023

Appearances:

O L Taylor for the Applicant

No appearances for the Respondent

Reasons Judgment:

20 December 2023

JUDGMENT OF PRESTON J

This judgment was delivered by me on 20 December 2023 at pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COMMISSIONER OF POLICE v WALKER [2023] NZHC 3845 [20 December 2023]

Introduction

[1]        The Commissioner of Police applies (on notice) to restrain specified property (the property), namely:

(a)$20,080.00, located in Sharna Walker’s possession on 15 December 2022 and subsequently seized.

[2]        The Commissioner says that the property  is  tainted  property  and/or  that Ms Walker has unlawfully benefitted from significant criminal activity as defined in the Criminal Proceeds (Recovery) Act 2009.

[3]        The application and supporting materials were served on the respondent on 16 November 2023.

Hearing on 4 December 2023

[4]        The application came before me in the Duty Judge list on 4 December 2023. There was no appearance by or on behalf of the respondent, Ms Walker.

[5]        Having read the application and the affidavit of Detective Sergeant Smart in support, and having heard from counsel, Mrs Taylor, for the Commissioner, I was satisfied that there were reasonable grounds to make the restraining order, which is an interim order of limited duration, to preserve the position pending the Commissioner’s signalled forfeiture order(s).

[6]I so ordered, with reasons to follow.

[7]These are my reasons.

Application

[8]        Detective Sergeant Smart is attached to the Southern Asset Recovery Unit, Financial Crime Group of the New Zealand Police, based in Dunedin.

[9]        By affidavit affirmed on 18 October 2023, he explains the basis on which police seek an on-notice restraining order in respect of the property, cash seized from Ms Walker. I summarise this below:

(a)Ms Walker, who is aged 32 years, has 14 previous convictions. Ten of these are for drug offending, including her most recent convictions, the background to which is outlined in the affidavit.

(b)On 15 December 2022, following an attempted traffic stop, police searched a handbag which she had been seen by a witness to discard. The handbag contained five small zip lock bags, three of which contained remnants of a white methamphetamine-like substance; the two others containing a large quantity of a white methamphetamine- like substance.

(c)Ms Walker was arrested and her car was searched. Within the car the police located a second handbag with a partially opened zip, in the front passenger footwell. The second handbag contained $20,080, largely in denominations of $50 and $20.

(d)ESR subsequently confirmed the substances found in Ms Walker’s Tommy Hilfiger bag were methamphetamine, with a combined weight of 186.1 grams. That weight is 37 times the presumptive amount for supply of methamphetamine.

(e)Police evidence is that 186.1 grams of methamphetamine would most likely be intended to be sold in multiple grams, partial ounce or full ounce amounts. 186.1 grams equates to 6.6 ounces, having a street value of between $19,800 and $66,000.

(f)As a result, Ms Walker was charged and on 21 July 2023, Ms Walker pleaded guilty to one charge of possession of a Class A drug, methamphetamine, for supply and one charge of failing to carry out an

obligation  in  relation  to  a  computer  search.     Ms Walker  was for sentence on 12 December 2023.

(g)Police have conducted an investigation into Ms Walker’s financial situation. The investigation is continuing.

(h)As to her asset position, on grounds set out in the affidavit, it is considered Ms Walker is the effective owner of the vehicle, a 2002 Mini Cooper, which she was driving prior to her arrest. This vehicle is registered to Ms Walker’s father, Stephen Ellens. It is identified as her sole asset.

(i)Between the period of 26 February 2019 to the date of the affidavit, Ms Walker had been in receipt of the solo parent support benefit for approximately four years to December 2022, and the job seeker benefit since 3 February 2023. Inland Revenue records indicate Ms Walker declared an annual average income of approximately $23,000 between 2017 and 2023.

(j)Police also investigated Ms Walker’s bank accounts, held with Westpac New Zealand Limited.

(k)Preliminary financial analysis has identified:

(i)81 unexplained cash deposits totalling $34,0800.

(ii)345 unexplained electronic transfers from third parties totalling

$93,671.61.

(iii)Between 21 September 2016 and 3 January 2020, 239 cash withdrawals with a total value of $57,765. Individual amounts withdrawn range from $10 to $2,000.

(iv)913 unexplained electronic transfers to third parties totalling

$180,757.91.

(l)At this stage of the preliminary analysis, all third-party transactions are considered  to  be  unexplained.  There  is  a  discrepancy  between  Ms Walker’s electronic spending and her expected and household and related expenditure based on Statistics New Zealand data. The discrepancy suggests Ms Walker has made significant further use of cash or funds outside the banking system.

(m)Third party deposits are subject of continuing investigation to establish their legitimacy.

[10]      In summary, police consider Ms Walker  has unlawfully benefited from significant criminal activity, namely the possession for supply and supply of methamphetamine.  Police  further  believe  that  the  $20,800  cash  seized  from  Ms Walker at the time of arrest is the proceeds from the sale of methamphetamine or, in the alternative, has been derived from the supply of methamphetamine and is tainted property.

Anticipated forfeiture order applications

[11]      The Commissioner intends to file a substantive application for a substantive Profit Forfeiture Order1 of $39,880, comprising the property (cash) subject of the on notice restraining order application and the acquisition value of 186.1 grams (6.6 ounces) of methamphetamine which was found in Ms Walker’s possession on her arrest. In the alternative, police will seek an Asset Forfeiture Order for the $20,080 cash.

Restraining Order

[12]      Having regard to the information set out in the application and materials in support, and having heard from counsel for the Commissioner I was satisfied there are reasonable grounds to believe that the property is tainted property and/or Ms Walker has unlawfully benefitted from significant criminal activity, namely the supply and/or possession for supply of methamphetamine, and that she has interests in the property.

1      Criminal Proceeds (Recovery) Act 2009, s 55.

[13]Accordingly, I granted the restraining order as sought.

………………………………………

Preston J

Solicitors:
Crown Solicitor, Invercargill for Applicant