R v Matamata
[2020] NZHC 1530
•1 July 2020
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-020-003953
[2020] NZHC 1530
IN THE MATTER OF an Instrument Forfeiture Order UNDER
Sections 142A to 142Q of the Sentencing Act 2002
BETWEEN
The Queen
AND
JOSEPH AUGA MATAMATA
CIV-2018-441-000101 UNDER
Subpart 4 of Part 2 of the Criminal Proceeds (Recovery) Act 2009
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
JOSEPH AUGA MATAMATA
First Respondent
SIA’ANATOE AUGA MATAMATA
Second RespondentAND
MAMONA TYSON JOSEPH AUGA MATAMATA
First Interested Party
TAMAFAIGA NIXON JOSEPH AUGA MATAMATA
Second Interested Party
ASB BANK LTD
R v MATAMATA [2020] NZHC 1530 [1 July 2020]
Third Interested Party
ANZ BANK NEW ZEALAND LTD
Fourth Interested Party
Hearing: 23 June 2020 Counsel:
C R Walker for the Crown
R Philip of the First Respondent
M Hamilton for the Second Respondent
R D Stone for the First and Second Interested PartiesJudgment:
1 July 2020
Reissued:
30 July 2020
JUDGMENT OF CULL J
[Instrument Forfeiture Order by Consent]
Overview of the instrument forfeiture proceedings
[1] At the conclusion of the five and a half week trial on 17 March 2020, Mr Matamata was convicted of 10 offences of trafficking in persons and 13 offences of dealing in slaves.1 After the entry of the convictions, Mr Matamata was remanded in custody for sentence on 6 May 2020. All offences are qualifying instrument forfeiture offences.2
[2] The background facts to the offending are that Mr Matamata arranged the entry of four groups of victims into New Zealand over a period of time, from 1994 to 2019, by representing to all but two of the victims, that they would receive income by coming to work in New Zealand. The arrangement was that each of the victims would live with Mr Matamata and his family at the Kiwi Street properties in Hastings, where they would be given food and accommodation and undertake work as organised by Mr Matamata. The individuals from all four groups, comprising 13 victims, were used as slaves and 10 were the subject of trafficking in persons.3
1 Crimes Act 1961, ss 98 98D.
2 Sentencing Act 2002, s 4.
3 Mr Matamata was charged with 13 counts of slavery and 11 counts of trafficking in persons, in respect of a total of 13 victims. He was convicted of all 13 slavery charges and 10 of the trafficking charges. The offending in relation to the first two victims occurred before the offence of
[3] At the scheduled hearing on 23 June 2020, an Instrument Forfeiture Order in respect of Mr Matamata’s partial interest in the Kiwi Street properties was made by consent, in the sum of $215,000.4
Background to instrument forfeiture hearing
[4] At a teleconference convened during the COVID-19 lockdown period, the Crown signalled that in the prosecutor’s opinion, the Court should consider whether to make an instrument forfeiture order under s 142N of the Sentencing Act 2002 (the Act) in respect of the two properties at Kiwi Street, Hastings, prior to sentencing. Mr Walker explained that the Crown was considering issuing a s 142B notice under the Act and that if an instrument forfeiture order were to be made either before or at sentencing, it could be taken into account in imposing sentence and potentially be advantageous to Mr Matamata.5 Mr Walker considered the prosecutor’s obligation was to give notice under s 142B, which was then filed.
[5] On the filing of the s 142B notice, the Court must decide whether it should consider making an instrument forfeiture order and if so, the statutory requirements under s 142C-Q apply.6 The Crown advised in its memorandum filed with the s 142B notice that it would be seeking an order for reparation at sentencing and filed further information regarding the value of the Kiwi Street properties, outstanding mortgage balances and arrears. The question for the Court then became whether the civil proceedings under the Criminal Proceeds (Recovery) Act 2009 should be heard subsequent to sentencing, with provision ordered for the interests of victims out of the balance of the sale proceeds of the properties, or whether the instrument forfeiture hearing should be made prior to sentencing to enable a forfeiture order, if made, to be taken into account.
[6] A further teleconference was convened, to hear from Counsel about the two available options to meet both the sentencing requirements and the
trafficking in persons was enacted and in respect of one of the victims, the representation regarding his schooling was met.
4 R v Matamata HC Napier CRI-2018-020-003953, 23 June 2020 (Minute No 6).
5 R v Matamata HC Napier CRI-2018-020-003953 (Minute [Sentencing date]), 9 April 2020.
6 Sentencing Act, s 142C.
forfeiture/reparation applications.7 It was agreed that the forfeiture hearing should take place before sentencing so that any forfeiture order could be taken into account; the question of ownership and Mr Matamata’s interests in the Kiwi Street properties needed to be resolved at such a hearing; and under s 142J other persons, such as Mrs Matamata and the two sons who are registered proprietors of the Kiwi Street properties respectively, could make applications for relief.
[7] Directions were made for service of the s 142B notice and a declaration of ownership of the properties was to be filed together with further information about the properties as required under ss 142C, 142F and 142H of the Sentencing Act.8 A hearing was scheduled for four days in the Napier High Court under s 142K.
[8] Mr Matamata’s sentencing was adjourned from 6 May to 27 July 20209. Two declarations of ownership were filed by each of Tamafaiga and Mamona Matamata, the first and second interested parties and the defendant’s sons, together with applications for relief against an instrument forfeiture order. Each of Tamafaiga and Mamona are currently the registered proprietors of the Kiwi Street properties, and each initially opposed the making of a forfeiture order.
[9] Mr Matamata filed a declaration of ownership, declaring that he did not own nor have an interest in the properties since 30 November 2012, when the properties were sold to his sons. He declared that the properties were sold for $150,000 and
$180,000 respectively.
[10] Mrs Matamata initially opposed the making of an instrument forfeiture order, and in the alternative filed an application for relief, seeking a half share in the properties under the Property (Relationships) Act 1976, in the event the Court held that the properties belonged to Mr Matamata.
[11] ANZ Bank New Zealand Ltd and ASB Bank Ltd, the third and fourth interested parties, also both filed applications for relief from forfeiture, on the grounds that the banks had an interest in the property identified in the respective mortgages registered
7 R v Matamata HC Napier CRI-2018-020-003953 (Minute of Cull J No 2), 21 April 2020.
8 At [16].
9 R v Matamata HC Napier CRI-2018-020-003953, 24 April 2020.
over the properties. Those applications for relief by the two banks were not opposed by any of the parties. A restraining order over the properties, which was obtained shortly after Mr Matamata’s arrest, has been amended by consent to exclude the mortgagee interests of the ANZ and ASB Banks from the properties which are currently restrained.
[12] The Crown challenged the ownership and control of the properties and opposed the applications for relief by Mrs Matamata and the first and second interested parties.
[13] After the parties had filed their respective submissions and immediately prior to the hearing, Counsel for the parties advised that they were negotiating a settlement of the Crown’s application and the hearing was adjourned for one day to enable Counsel to finalise those settlement discussions.
Orders by consent
[14] The Crown, Mr Matamata, Mrs Matamata and two sons, the first and second interested parties, agreed on a draft Instrument Forfeiture Order and by joint memorandum recorded that they all consented to the making of the proposed order. Subject to the Court’s approval, the parties agreed to the forfeiture of Mr Matamata’s partial interest in the Kiwi Street properties of $215,000. It was further agreed that the equity in the properties is $437,262 of which $215,000, being 49 per cent of the equity, was the agreed partial interest of Mr Matamata.
[15] As noted, the applications by ASB and ANZ for relief from any instrument forfeiture was not opposed by any of the parties and their interests were excluded from the extant restraining order.
[16] After reading the material filed prior to the hearing, namely Counsel’s submissions, the affidavits filed and the summaries of bank transactions and calculations that were provided by the Crown witnesses, I was satisfied that the Kiwi Street properties were instruments of crime as required under s 142N of the Act.10 Having had regard to whether it was appropriate to grant relief to Mrs Matamata and
10 See also Sentencing Act, s 4.
the two sons of the family, I was satisfied that the agreed draft order was appropriate in this case.
[17] I made the consent Instrument Forfeiture Order, in terms of the draft order provided by the parties in open Court. Following the making of the Instrument Forfeiture Order, further amendments were made to the order, the final order of which appears at the end of this judgment. The details of the alterations are contained in a minute.11 Essentially, the amendments were made to allow the expiry of the relevant appeal period before the sum of $215,000, or sale proceeds in the event of default, can be applied in terms of the Order.
[18]I now give the reasons for my making the Instrument Forfeiture Order.
Reasons for Instrument Forfeiture Order
Sentencing Act provisions
[19] After following the steps under ss 142B to 142N, the Court may make instrument forfeiture orders under s 142N of the Act. Normally, such orders are made as part of the sentencing process, but in this case, sentencing did not take place until the Court determined whether an instrument forfeiture order should be made. The reason for conducting the instrument forfeiture hearing prior to sentencing was to resolve the issues of ownership and/or control of the properties, given the declarations that were filed by Mr Matamata and the first and second interested parties. Importantly however, if forfeiture is to be taken into account in sentencing under s 10B of the Act, it must be an instrument forfeiture order.
[20] The Court of Appeal in Henderson v R confirmed that instrument forfeiture is the only type of forfeiture order that can be taken into account at the sentencing stage.12 Although proceedings had been commenced under the Criminal Proceeds (Recovery) Act 2009 here, the Crown elected to pursue its application for an instrument forfeiture order to ensure that it could be taken into account in the sentencing process, which
11 R v Matamata HC Napier CRI-2018-020-003953, 25 June 2020.
12 Henderson v R [2017] NZCA 605 at [38].
would be to Mr Matamata’s advantage. The civil forfeiture proceedings would then fall away.
[21] Section 142N of the Act provides the jurisdiction for instrument forfeiture orders:
142N Instrument forfeiture orders
(1)Following a hearing under section 142K, the court may, if it is satisfied that the property described in the notice given under section 142B is an instrument of crime, order that the instrument of crime or any part of it specified by the court be forfeited to the Crown.
(2)In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—
(a)any matter raised in an application for relief under section 142J; and
(b)the use that is ordinarily made, or was intended to be made, of the instrument of crime; and
(c)any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and
(d)the nature and extent of the offender's interest in the instrument of crime (if any), and the nature and extent of any other person's interest in it (if any); and
(e)in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.
(3)A court that makes an instrument forfeiture order may, if it considers that it is appropriate to do so, by order,—
(a)declare the nature, extent, and value of any person's interest in an instrument of crime; and
(b)declare that the instrument forfeiture order may, to the extent to which it relates to the interest, be discharged under section 85 of the Criminal Proceeds (Recovery) Act 2009.
(4)If the court orders that property (other than money) be forfeited to the Crown, the court must specify in the order the
amount that it considers to be the value of the property at the time the order is made.
(5)If a court makes an instrument forfeiture order, the court may give any directions that are necessary or convenient for giving effect to the order.
[22] The section contains a number of steps which Woolford J followed in R v Van de Ven.13 The considerations which the Court may have regard to are:
(1)whether the property is an instrument of crime;
(2)what interest the offender and others have in the property;
(3)whether to order the forfeiture of the property, taking into account the interests of third parties; and
(4)whether to grant any application for relief to a third party.
[23] I now set out the considerations which I took into account in making the Instrument Forfeiture Order in this case.
Instrument of crime
[24]The term “instrument of crime” is defined in s 4 of the Act as:
property used (wholly or in part) to commit, or to facilitate the commission of, a qualifying instrument forfeiture offence:
[25]The Crown relied on the Court of Appeal’s observation in Elliot v R:14
[38] Of note is the fact that Parliament has made it clear that even if the property has only been used in part for the purposes of crime, the entire property is an instrument of crime and may be subject to forfeiture.
[26] The Crown submitted that both the Kiwi Street properties fell within the definition of “instrument of crime” because the properties were fundamental to the commission of the slavery offences, which was achieved in part by having the victims
13 R v Van de Ven [2013] NZHC 479 at [36].
14 Elliot v R [2011] NZCA 386, [2011] 3 NZLR 811.
housed at the family property. The Crown contends the purpose of the offending was to exploit the victims for financial gain and the means of exploiting them was by exercising control over them. Thus, having the victims live with Mr Matamata at his home and being dependent on him for accommodation and meals was a crucial part of his exercise of control over them.
[27] The evidence relating to the control exercised over the victims by Mr Matamata included the restriction the victims’ freedom of movement by limiting their ability to leave the property without Mr Matamata’s permission, by locking the gate to the properties, the retention by Mr and Mrs Matamata of the victims’ passports and restricting their freedom of communication. The Crown points to the evidence showing an ever-present threat of violence, more at home, the Crown says, than at work. The fact that the victims were illegal overstayers or illegal workers (with the exception of the group four victims) made the victims more vulnerable.
[28] The Crown also submitted that the properties were relevant to the commission of the trafficking offences because the arrangement with all the victims included that they would come to live with Mr Matamata at his home, and Mr Matamata’s address was provided to the immigration authorities in order to obtain temporary visas for the victims. This facilitated the victims’ entry into New Zealand, which is part of the trafficking offence.
[29] The Crown’s position was that both properties were inextricably linked, because the second property purchased was able to be acquired by Mr and Mrs Matamata by a mortgage secured over both properties and the five group two victims, who arrived on 14 July 2003, arrived less than two months after the purchase of that property. Five more Samoan nationals, sponsored by Mrs Matamata, arrived one month later on 16 August 2003. The Crown says that the first property facilitated the purchase of the second property and thereby facilitated further offending. For that reason, the Crown submitted that both properties were instruments of crime as in R v Bright, where a similar mortgage arrangement justified both properties being held to
be instruments of crime even though no offending was carried out at the first property.15
[30] The Defence initially challenged the Crown’s claim that both properties were instruments of crime. In particular, the Defence submission was that the first property was not “a slave house”, but was the family home of the Matamata family. The only victims who stayed in the house were two victims from group 1, whom the Defence say were close family, being Mr Matamata’s sister’s children. The Defence drew a distinction between the two properties and said the second property was “primarily” the property where the victims were accommodated and from which they left regularly to engage in horticultural work. In any event, the Defence submitted that accommodating the victims in itself is not sufficient to determine the dwelling house as an instrument of crime.
[31] The Defence further disputed the Crown’s claim that the security taken over the first property for the purchase of the second property makes the family home, the first property, an instrument of crime. This, the Defence said, is the difference between “tainted” property under the Criminal Proceeds (Recovery) Act and an instrument of crime under the Sentencing Act.
[32] As a result of settlement discussions, the parties reached agreement that Mr Matamata’s partial interest in the properties is approximately 49 percent of the equity of the net equity of both properties, being $215,000.
[33] For present purposes, I am satisfied that both Kiwi Street properties were instruments of crime. From the evidence at trial both the properties were treated as one family property or compound from the time the second property was purchased. I am also cognisant of the evidence that some of the group two victims, who arrived less than two months after the purchase of the second property, were required to concrete the areas between and around both properties, making it a combined property. This ultimately became the compound within which the victims lived.
15 R v Bright [2013] NZHC 630 at [10].
[34] I am therefore satisfied that the properties were fundamental to the commission of the slavery offences, enabling Mr Matamata to exercise control over the victims. The victims were dependent on him for their accommodation and meals. They were vulnerable because of their immigration status, and their lack of control over their passports. They were unable to move out of the property without Mr Matamata’s permission and were restricted in their communication with others, both in New Zealand and in Samoa.
[35] I find that the properties were also relevant to the commission of the trafficking offences because the arrangement of the victims’ entry into New Zealand depended on their living at the Matamata address, which was provided to immigration authorities in order to obtain their visas. Although the provision of accommodation did not affect the false representation made by Mr Matamata to the victims about the net income they would receive, their entry into New Zealand could not have been effected without identifying a residential address.
[36] I am satisfied therefore that the offences for which Mr Matamata has been convicted are qualifying instrument forfeiture offences under s 4 of the Act, as they are punishable by a maximum term of imprisonment of five years of more, and the Kiwi Street properties are instruments of crime.
The interests in the property and whether to order forfeiture
[37] Declarations were filed, as noted above, by both Mr Matamata and his two sons declaring that the sons were the registered proprietors of the respective properties. Although the defence initially claimed that Mr Matamata lost effective control over the properties when they were sold to each of his sons in 2012, it is plain from the evidence that Mr Matamata had, at all times, effective control of both properties. The parties have since agreed that Mr Matamata does have a partial interest in the properties due to having effective control over them.
[38] Before making an instrument forfeiture order, the Court must first determine the extent of the interest of the offender in the property claimed. “Interest” is defined in s 5 of the Criminal Proceeds (Recovery) Act as:
interest, in relation to property of any kind (including, without limitation, restrained property or forfeited property), means –
(a)a legal or equitable estate or interest in the property; or
(b)a right, power, or privilege in connection with the property
[39] The critical factor in the forfeiture regimes under both the Sentencing Act and the Criminal Proceeds (Recovery) Act is whether the person has effective control over property. If so, that control is treated as an “interest” in property.
[40] Importantly, s 142I of the Sentencing Act provides that for the purpose of determining the nature and extent of any person’s interest in an instrument of crime, the Court may apply the provisions of s 58 of the Criminal Proceeds (Recovery) Act. That section provides:
58Court may treat effective control over property as interest in property
(1)If the High Court is satisfied that a respondent has effective control over property, the Court may, on an application made by the Commissioner, order that the property is to be treated as though the respondent had an interest in the property specified by the Court.
(2)An order under subsection (1) may—
(a)be made even if the respondent has no interest in the property; and
(b)specify an interest that differs from the interest that the respondent has in the property.
(3)Without limiting the generality of subsections (1) and (2), the Court may have regard to—
(a)shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in the property; and
(b)any trust that has a relationship to the property; and
(c)family, domestic, and business relationships between persons having an interest in the property or in companies of the kind referred to in paragraph (a) or in trusts of the kind referred to in paragraph (b), and any other persons.
(4)Property that is subject to an order under subsection (1) may be included in any profit forfeiture order and in any restraining order that is made against the respondent.
(5)If the Commissioner applies for an order under subsection (1),—
(a)the Commissioner must, so far as it is practicable to do so, serve notice of the application on the respondent and on any person who, to the knowledge of the Commissioner, has an interest in the property; and
(b)the respondent and any other person who claims an interest in the property are entitled to appear and to adduce evidence at the hearing of the application.
[Emphasis added]
[41] As the courts have held, effective control of the property occurs when the offender can control, use or treat the property as his or her own,16 or, in the case of a family relationship, when there is an ability of the offender to influence or control a family member in relation to the use of the property.17
[42] The parties have agreed that Mr Matamata has effective control over the properties and therefore a partial interest in them, and I consider that is an appropriate concession on the evidence, both adduced at trial and the evidence sworn for the purposes of this hearing. Mr Matamata treated the properties as belonging to him during the trial, confirming that he had worked hard to earn the money to purchase the properties and that he was the matai having the power and authority over his family and others coming to live with him from Samoa.
[43] The evidence provided by the Immigration Officers on behalf of the Crown, their analysis of the bank accounts of Mr and Mrs Matamata and their two sons, together with an assessment of the travel movements of the two sons, further confirmed that in reality Mr and Mrs Matamata retained effective control of both properties. The respective properties were put into their sons’ names but the structure of the transaction was such that no money was paid by the sons. The purported sales to the sons were, in effect, a means of refinancing the properties for a lower mortgage
16 R v Van de Ven, above n 13, at [41].
17 Solicitor-General v Huang HC Auckland CIV-2005-404-1538, 18 December 2007 at [73].
interest rate. It is highly relevant to this consideration that on 25 July 2016, Mr and Mrs Matamata entered into a binding contract to repurchase the first property from the second interested party, Tamafaiga, at the same price as they sold it. Despite the “sales” of the properties, Mr and Mrs Matamata have also managed the mortgage, rates and insurance payments for both properties.
[44] I am satisfied that Mr Matamata had “effective control” as that term is used in s 58 of the Criminal Proceeds (Recovery) Act, over both properties and retained that control, as recorded through the financial transactions, the sale and purchase agreement dated 25 July 2016 and the “paper” transactions with both sons when they became the registered proprietors. This means that Mr Matamata has an interest in the properties. I have accordingly been satisfied that Mr Matamata had an interest in the properties at the time of the offending and at the time of this forfeiture application.
[45] I turn then to consider the value of Mr Matamata’s interest in the instrument of crime. The parties have quantified Mr Matamata’s interest at $215,000. This partial interest, representing a 49 per cent equity of both properties, is in my view an appropriate acknowledgment of the extent and value of Mr Matamata’s interest, bearing in mind that the first property was the family home in which the children and Mrs Matamata lived throughout the time of the offending. I also bear in mind that the evidence during the trial revealed that the monies that were earned by Mr Matamata and his children, together with that of the victims, were pooled into the family’s resources. The sum of $215,000 is therefore appropriate.
[46] In considering whether to order forfeiture, the Court may take into account the five matters under s 142N(2), including any other matter relating to the nature and circumstances of the offending.18 There is no doubt that in addition to qualifying as instrument forfeiture offences, the convictions represent the very serious nature of the offending.
[47] For all of the reasons canvassed above, including the serious nature and circumstances of the offending and the financial gain obtained from the offending, an instrument forfeiture order is justified in this case.
18 Sentencing Act, s 142N(2)(e).
Grant of relief
[48] In making an instrument forfeiture order, the Court may have regard to any undue hardship that is reasonably likely to be caused to any third person.19 The Court may also grant relief from an instrument forfeiture order on the grounds of undue hardship or where the applicant for relief establishes an interest in the property.20 As with the other matters to be taken into consideration, this is a discretionary matter for the Court. Because the parties have reached agreement both as to the sum to be forfeited and the terms of the order, no orders for relief under either ss 142L or 142M of the Act are required because the properties themselves are not to be sold or forfeited, unless payment of the $215,000 is unpaid.
[49] I record that the mortgagee banks’ interests are exempted from the extant Restraining Order, as amended by consent at the time of making the Instrument Forfeiture Order on 23 June 2020.
[50] As the parties jointly proposed in their memorandum, the Instrument Forfeiture Order provides for the interests of the victims of the defendant’s offending as well as for the defendant’s family. By virtue of their agreement, the financial advantages of the Instrument Forfeiture Order are that:
(1)forfeiture of the properties themselves and subsequent sale may or may not have realised the current market values, particularly in the present COVID-19 level one climate;
(2)the sale of the properties by the Official Assignee may have incurred additional costs which would need to be deducted from the sale proceeds; and
(3)the directions contained in the order as to the applications of the forfeited funds ensures that there is means of payment to the victims in satisfaction of any sentence of reparation, if made.
19 Section 142N(2)(c).
20 Sections 142M and 142L.
[51] By agreement, the partial interests of Mr Matamata in the properties are to be realised through refinancing and in turn, the Amended Restraining Order was removed from the properties but attached to the funds to be deposited into the Official Assignee’s trust account. Thus, the Amended Restraining Order accompanied the proposed Instrument Forfeiture Order and both were made by consent.
[52] I record that the Commissioner of Police has confirmed through Crown Counsel that the Commissioner will not apply for civil forfeiture orders if the forfeited funds are applied in accordance with [d] of the Instrument Forfeiture Order, after the expiry of the relevant appeal period.21
[53] In making the Instrument Forfeiture Order under s 142N(1), I was satisfied that the properties were an instrument of crime and having regard to the matters canvassed in this decision and contained under s 142N(2) of the Act, I found that Mr Matamata’s partial interest in the properties valued at $215,000 was appropriate and fair in the circumstances.
Conclusion
[54] In the exercise of the Court’s discretion, an Instrument Forfeiture Order under s 142N of the Sentencing Act was made at Napier High Court on 23 June 2020 on the following grounds:
(1)the offences for which Mr Matamata has been convicted are qualifying instrument forfeiture offences under s 4 of the Act;
(2)the properties are instruments of crime under s 4 of the Act;
(3)Mr Matamata is to be treated as having interest in the properties by virtue of having effective control over them under s 142I of the Act;
21 Section 73 of the Criminal Proceeds (Recovery) Act 2009 defines the relevant appeal period.
(4)no orders for relief under either ss 142L or 142M are required for the mortgagee banks or members of the defendant’s family because the properties themselves are not to be sold or forfeited; and
(5)the making of the order under s 142N(1) is appropriate after having regard to all of the matters referred to in s 142N(2)-(5) of the Act.
[55] The Instrument Forfeiture Order made under s 142N of the Sentencing Act 2002 is as follows:
(a) The following properties are instruments of crime:
(i) the property at 808 Kiwi Street, Camberley, Hastings, registered in the name of Mamona Tyson Joseph Auga Matamata and described in record of title unique identifier HBH4/950, legal description Lot 50 DP 113300; and
(ii) the property at 810 Kiwi Street, Camberley, Hastings, registered in the name of Tamafaiga Nixon Joseph Auga Matamata and described in record of title unique identifier HBJ4/277, legal description Lot 50 DP 113300.
(b) The values of the properties as per market valuations dated 17 June 2020 are $325,000 and $350,000 respectively being a combined value of
$675,00.
(c) A partial interest of the defendant in each property to the value of
$107,500, being a combined value of $215,000, is forfeited to the Crown. These interests vest in the Crown absolutely and are to be in the custody and control of the Official Assignee.
(d) The order is to be effected by the defendant paying the sum of $215,000 into the New Zealand Insolvency & Trustee Service Proceeds of Crime Account (the Official Assignee’s trust account) by 4.00pm on 24 July 2020 to be applied by the Official Assignee as soon as practicable after
the expiry of the relevant appeal period (defined in s 73 of the Criminal Proceeds (Recovery) Act 2009) as follows:
(i) first, by paying the costs recoverable by the Official Assignee under s 87 of the Criminal Proceeds (Recovery) Act 2009 (those costs being $21,387.94 as at 19 June 2020 but continuing to accrue);
(ii) secondly, by paying the Commissioner of Police the amount of his costs relating to the restraining order over the properties (those costs being $3,767.40 as at 19 June 2020 but continuing to accrue);
(iii) thirdly, by paying the balance remaining after payment of the costs referred to in paragraphs (i) and (ii) above to the Napier High Court in satisfaction of any sentence of reparation imposed on the defendant as part of his sentencing on the qualifying instrument forfeiture order; and
(iv) fourthly, if the sum ordered by the High Court to be paid as reparation is less than the amount referred to in paragraph (iii) above, or no sentence of reparation is imposed, then the balance remaining after payment of the amounts referred to in paragraphs (i), (ii) and (iii) above shall be applied in accordance with s 85 of the Criminal Proceeds (Recovery) Act 2009.
(e) If the sum of $215,000 is not paid into the Official Assignee’s trust account by 4.00pm on 24 July 2020 then as soon as practicable after the expiry of the relevant appeal period (defined in s 73 of the Criminal Proceeds (Recovery) Act 2009):
(i) the Official Assignee shall sell the properties referred to in paragraph (a) above for fair market value and apply the sale proceeds as follows:
(A) first, by paying all reasonable costs in effecting the sales;
(B) secondly, by repaying all indebtedness secured by mortgage 9244516.3 registered against the title of 808 Kiwi Street, Hastings in favour of ASB Bank Limited and by mortgage 9992272.3 registered against the title of 810 Kiwi Street, Hasting in favour of ANZ Bank New Zealand Limited;
(C) thirdly, by applying the next $215,000 towards the instrument forfeiture order in paragraph (c) above in accordance with directions in paragraph (d) above; and
(D) fourthly, by returning any residual proceeds to Mamona Tyson Joseph Auga Matamata and Tamafaiga Nixon Joseph Auga Matamata on a pro rata basis;
(ii) for the purposes of effecting a sale of the properties in accordance with paragraph (e)(i) above, the Official Assignee (including a person delegated his functions and powers under the Criminal Proceeds (Recovery) Act 2009) has the power to execute any deed or instrument in the name of the registered proprietors and to do anything necessary to give validity and operation to the deed or instrument.
Cull J
Solicitors:
Crown Solicitor’s Office, Napier for the Crown
Messrs Bramwell Bate Solicitors, Hastings for the first respondent Market Street Chambers, Hastings for the second respondent
Souness Stone Law Partnership, Hastings for the first and second interested parties
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