Commissioner of Police v White

[2017] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-31 [2017] NZHC 929

UNDER

The Criminal Proceeds (Recovery) Act

2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

LISA MAREE WHITE Respondent

Hearing:	On the papers
Counsel:	R G Douch for Applicant L Wilkins for Respondent
Judgment:	10 May 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 May 2017 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton

Knox Legal, Hamilton

COMMISSIONER OF POLICE v WHITE [2017] NZHC 929 [10 May 2017]

[1]      The Commissioner of Police as applicant applies pursuant to s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act) for the Court’s approval of the terms of settlement reached with the respondent.

[2]      The respondent’s counsel, Mr L Wilkins, while not filing a memorandum, has written  to  the  Registrar  confirming  that  having  taken  instructions  from  the respondent, the respondent accepts the proposed settlement and confirms that the funds for settlement are presently held on trust and are immediately available to settle in the terms proposed by the Commissioner.

[3]      Section 95 of the Act governs settlements and provides:

High Court must approve settlement between Commissioner and other party

(1)      The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)      A  settlement  does  not  bind  the  parties  unless  the  High  Court approves it.

(3)      The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)      the purposes of this Act; and

(b)      the overall interests of justice.

[4]      Section  95(1)  confers  on  the  Commissioner  the  power  to  enter  into  a settlement with any person as to property or any sum of money to be forfeited to the Crown.  Section 95(3) requires the Court to approve a settlement if satisfied that it is consistent with the purposes of the Act and the overall interests of justice.

[5]      The Court’s consideration of the approval of settlements must be undertaken in accordance with the purposes of the Act.1

[6]      In deciding whether to approve a settlement the Court will recognise and have regard to the strong public interest in litigation of this type being resolved without the necessity of both cost and delay inherent in determination by means of a

contested application.   The overall interests of justice with which any settlement must be consistent involves a broad inquiry which includes consideration both of savings of time and cost and litigation risk to the parties.  An appropriate settlement may be made under the Act on economic and  pragmatic grounds that reflect a “common sense compromise” between the parties.2

The present case

[7]      Here   the   respondent   pleaded   guilty   and   admitted   charges   including possession of methamphetamine for supply and supplying methamphetamine following the termination of a Police investigation which focused on a number of offenders operating in the Waikato area.  She was sentenced to a total term of three years’ imprisonment.

[8]      The  Commissioner  submits  that  the  respondent’s  conduct  in  relation  to dealing with methamphetamine and the convictions entered in relation to those offences establish her involvement in significant criminal activity from which she profited.

[9]      The amount by which the Commissioner alleges the respondent unlawfully benefited from the significant criminal activity is calculated at $48,400.   This calculation is the result of an assessment made by Detective Sergeant Thompson of the Waikato Asset Recovery Unit of the New Zealand Police.   Detective Sergeant Thompson used information derived from text messages in which the respondent either supplied or offered to supply methamphetamine to unknown persons for specified amounts.  Using the information available, Detective Sergeant Thompson calculated that 69.5 grams of methamphetamine supplied or offered for supply by the respondent would have provided her with a return of between $62,550 and $34,700. Taking a middle ground approach, Detective Sergeant Thompson calculated a sum of

$48,400 and that is the sum for which the Commissioner sought a profit forfeiture order against the respondent.

[10]     The respondent has proposed a settlement in the sum of $40,000 to be paid forthwith upon settlement to the Commissioner.  While the proposed sum is $8,400 below the profit forfeiture sum sought by the Commissioner, the Commissioner is prepared to accept that sum upon the basis that it be paid immediately following any approval of the settlement.

[11]     For the Commissioner Mr Douch submits that the proposed settlement sum of

$40,000 is not so significantly less than the profit forfeiture amount sought by the Commissioner as to result in the purposes of the Act not being met.   Moreover, counsel submits that the expense of a contested hearing involving the analysis of individual sales to determine an amount of profit derived from serious criminal activity would be expensive, time consuming and not justified by a potential increase in the amount to be recovered by the Commissioner of $8,400.

[12]     Mr Douch further submits that the objective of deterring criminal activity and specifically deterring the respondent will be achieved as the sum that the respondent is to pay under the terms of settlement is to be met by recourse provided by a third party, with the respondent having an ongoing and remaining obligation to repay the money.   That situation will continue to operate as a deterrent factor both to the respondent and to other associates of hers who are likely to become aware of the terms of the settlement.

[13]     Having regard to these circumstances and the principles of the Act, I am satisfied that the purposes of the Act and the overall interests of justice will be met by a settlement upon the terms proposed, namely that the respondent pay the sum of

$40,000 to the Commissioner in cash forthwith in full and final settlement of the

Commissioner’s claim against her.

[14]     Accordingly I approve the settlement pursuant to s 95(3) of the Act.

Paul Davison  J