THE COMMISSIONER OF NEW ZEALAND POLICE v D’ESPOSITO & ORS [2019] NZHC 2914 [7 November 2019]

THE COMMISSIONER OF NEW ZEALAND POLICE v D'ESPOSITO & ORS [2019] NZHC 2914[7 November 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2014-485-011238[2019] NZHC 2914UNDER the Criminal Proceeds Recovery Act 2009IN THE MATTER OF an application under sections 22, 24 and 25BETWEEN THE COMMISSIONER OF NEWZEALAND POLICEApplicantAND ANTONINO GIOVANNI D'ESPOSITOFirst RespondentGIANCARLO HAROLD D'ESPOSITOSecond RespondentMARCUS GIUSEPPE D'ESPOSITOThird RespondentJOHN STANLEY BUTLERFourth RespondentJASON IAN LEEFifth RespondentHAWKES BAY SEAFOODS PROPERTYLIMITEDSixth RespondentAND KARIN D'ESPOSITOFirst Interested PartyMAREE YVONNE NEWMANSecond Interested PartyAMY SARAH D'ESPOSITOThird Interested PartyAHURIRI TRUSTEE SERVICES LIMITEDFourth Interested PartyHAWKES BAY SEAFOOD LIMITEDFifth Interested PartyNAPIER INDEPENDENT TRUSTEESLIMITEDSixth Interested PartyANZ BANK NEW ZEALAND LIMITEDSeventh Interested PartyBAHARA BAS FISHING LIMITEDEighth Interested PartyHEARTLAND BANK LIMITEDNinth Interested PartyHearing: 4 November 2019Counsel: A Britton and S McCusker for the ApplicantJudgment: 7 November 2019JUDGMENT OF DOOGUE JIntroduction[1] The parties seek the approval of the Court for the settlement of theseCriminal Proceeds (Recovery) Act 2009 (the Act) proceedings.[2] Settlement is sought pursuant to s 95 of the Act on the ground that it isconsistent with the purposes of the Act and overall interests of justice.Background[3] The Commissioner obtained a without notice restraining order inSeptember 2014 restraining the respondents and interested parties from disposing ofor otherwise dealing with a vast array of property consisting of interests in realproperty, motor vehicles, and cash.[4] The first to third respondents and the fifth interested party were all chargedwith offences under the Fisheries Act 1996 and all entered guilty pleas. The partieswere sentenced in the District Court at Wellington on 25 February 2019. Significantfines were imposed by way of penalty as follows:HBS OEL ESP MARCUSD'ESPOSITOJOED'ESPOSITONINOD'ESPOSITOStartingpoint$495,000 $247,500 $123,750 $185,625 $123,750 $61,875Previoushistory$12,375 $9,281 $6,187 $4,640Goodcharacter(18,562)Stepstaken($12,375) ($6,496) ($3,325) ($4,076) ($3,248) ($1,662)Guiltypleas($72,393) ($38,006) ($19,455) ($22,348) ($19,003) ($9,727)Butler $31,183 $31,183End point $410,232 $215,373 $141,434 $126,639 $106,686 $86,309Fines paid[5] The following fines were paid by the respondents on 31 October 2019:(a) the first respondent paid $91,489.00;(b) the second respondent paid $106,736.00; and(c) the third respondent paid $126,689.00.Restraining orders[6] Between the making of the original without notice restraining order andtoday's date, there have been no fewer than five applications made by the applicant toremove property restrained by operation of the order.11 Applications dated 30 September 2014, 4 November 2014, 26 February 2015, 27 February 2018and 9 March 2018.The settlement[7] Section 95 of the Act provides:95 High Court must approve settlement between Commissioner andother party(1) The Commissioner may enter into a settlement with any person as tothe property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approvesit.(3) The High Court must approve the settlement if it is satisfied that it isconsistent with—(a) the purposes of this Act; and(b) the overall interests of justice.[8] The Commissioner seeks to vary the order dated 22 September 2014 to deletefrom the ambit of that order the property identified at paragraphs 3 (b), (c), (e), (o) and(p) of the restraining order, namely:(a) All interests in the property at 54 Duart Road, Havelock North,Hastings, registered in the names of Antonino Giovanni D'Esposito,Giancarlo Harold D'Esposito and Karin D'Esposito, and described incertificate of title HBV1/1280, legal description Lot 1 DP 24053, otherthan the interests of ANZ Bank New Zealand Limited under registeredmortgage number 719878.2 (54 Duart Road).(b) All interests in the property at 25 McHardy Street, Havelock North,Hastings, registered in two half-shares: one half-share in the names ofAntonino Giovanni D'Esposito, Giancarlo Harold D'Esposito andKarin D'Esposito; and the remaining half-share in the names of thesame parties, and described in certificate of title HB114/244, legaldescription Lot 1 DP 7236, other than the interests of the ANZ BankNew Zealand Limited under registered mortgage number 669421.1(25 McHardy Street);(c) All interests in the property at Apartment 406, 7 Humber Street,Pandora, Napier, registered in the names of Antonino GiovanniD'Esposito, Giancarlo Harold D'Esposito and Karin D'Esposito, anddescribed in certificate of title 355599, legal description Unit 406 andAccessory Unit 33 DP 388915, other than the interests of the ANZ BankNew Zealand Limited under registered mortgage number 8436201.3(406/7 Humber Street);(d) All interests in the property at 51 Airini Road, Waimarama, Hastingsregistered in the names of Marcus Guiseppe D'Esposito,Antonino Giovanni D'Esposito and Maree Yvonne Newman, anddescribed in certificate of title HBE3/1261, legal description Lot 2 DP13250, other than the interests of the ANZ Bank New Zealand Limitedunder registered mortgage number 9254103.2 (51 Airini Road);(e) Cash to the value of $21,520.72 NZD located by Police at50 Duart Road on 24 September 2014; and(f) Cash to the value of $5,015.70 located by Police at 25 McHardy Streeton 24 September 2014.[9] The applicant and the respondents have reached an agreement that the mattermay be settled subject to this Court's approval on the basis that the respondents willforfeit the following:(a) $253,404.62 representing the commercial value of the 27 tonnes ofmisreported Bluenose (BNS), the subject of the Operation Marquiseprosecution under the Fisheries Act 1996;2(b) $38,116.07 representing the use of money for $218,00.00 in avoideddeemed values from 1 December 2014 to 20 February 2019 based onthe Ministry of Justice's civil debt interest calculator; and(c) $27,420.00 representing the commercial value of the 1,142.5 kilogramsof Pāua and knowingly and unlawfully receiving the subject of theseparate Operation River (Pāua) prosecution under the Fisheries Act.3[10] It is also agreed that the respondents will pay $15,000.00 as a contributiontowards the applicant's costs.2 Ministry for Primary Industries v Hawkes Bay Seafood Ltd & Ors [2019] NZDC 2599.3 Ministry for Primary Industries v D'Esposito, CIV-2016-041-001835.[11] There is little doubt that some of the assets were tainted as a result of criminaloffending and the respondents and interested parties do not take issue with that. Thereis also no doubt that significant proceeds ought to have been recompensed to the State.[12] The monetary value to be placed on that criminal activity (as distinct from thefines imposed) is identified in the decision of Judge William Hastings, dated25 February 2019. The Court need not undertake its own examination of that aspectof the matter as it is acknowledged by both parties that the above sums accuratelyrepresent the illicit gain in each case.[13] I am satisfied in the circumstances that the settlement is consistent with:(a) the purposes of the Act; and(b) the overall interests of justice.Result[14] I make the following orders:(a) the order dated 22 September 2014 is varied to delete the property listedat paragraph 3(a), (b), (c), (e), and (p);(b) further, that the respondents deposit funds totalling $318,940.69 intothe Official Assignee's trust account by 5:00 p.m. on 8 November2019;(c) an order for costs is to issue against the respondents in favour of theapplicant in the amount of $15,000.00 payable forthwith; and(d) an order that the Official Assignee release to the respondents theproperty itemised in the amended application for forfeiture order.[15] Otherwise, costs will lie where they fall.Doogue JSolicitors:Crown Solicitor, WellingtonOcean Law, Nelson