COMMISSIONER OF POLICE v BELL [2022] NZHC 1100

COMMISSIONER OF POLICE v BELL [2022] NZHC 1100 [19 May 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2020-419-261[2022] NZHC 1100UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND MARGARET BELL (AKA SHORTLAND)First RespondentMYLES ALLAN BELLSecond RespondentHearing: 18 May 2022 (by telephone)Counsel: R L Guthrie for applicantL C Hann on instruction from T C Tran for first respondentP A Depledge for second respondentJudgment: 19 May 2022JUDGMENT OF HARLAND JThis judgment was delivered by me on 19 May 2022 at 10.30am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Crown Solicitor, HamiltonT Tran, HamiltonP Depledge, Hamilton[1] The Commissioner has applied for an asset forfeiture order relying on ss 43,44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act) and on the affidavitsof Ya Tsui affirmed on 12 October 2020 and 28 October 2021.1[2] The application was served on the parties as follows:2(a) on the Official Assignee via email on 9 May 2022;(b) on the first respondent on 10 May 2022;(c) on the second respondent on 10 May 2022; and(d) on ASB Bank Limited on 10 May 2022.[3] A joint memorandum of counsel has been filed.3Restrained property[4] The Commissioner filed proceedings against the respondents seeking an assetforfeiture order in respect of a property at 9 Derby Street, Nawton, Hamilton. Theproperty is currently subject to an on-notice restraining order made by Muir J on18 November 2020 and extended by me on 17 November 2021.[5] The parties have reached an agreement to settle the proceedings. This requiresapproval under s 95 of the Act, which 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—1 Application dated 5 May 2022.2 Affidavits of service sworn 17 May 2022.3 Dated 5 May 2022.(a) the purposes of this Act; and(b) the overall interests of justice.Proposed settlement[6] Agreement has been reached between the first and second respondents and theCommissioner on the following basis:(a) the respondents will pay the sum of $220,000.00 to the OfficialAssignee;(b) upon receipt of the sum of $220,000.00 by the Official Assignee thecurrent restraining order will be discharged;(c) payment of $220,000.00 will be in full and final settlement of all issuesbetween the parties;(d) each party will bear its costs.Discussion[7] The joint memorandum sets out the basis for the application in paragraphs [6]to 12]. I have read and considered the matters set out in the joint memorandum andnote the acknowledgment by the respondents that the restrained property at 9 DerbyStreet is tainted property having been wholly or in part acquired or derived fromsignificant criminal activity, namely, the sale and supply of controlled drugs.[8] The joint memorandum also outlines that the rateable value of the Derby Streetproperty is $390,000 and the balance of the mortgage over it is $24,278.08.[9] I am satisfied that the forfeiture of the sum of $220,000.00 will meet thepurposes of the Act. I also accept counsel's submissions that the expense of acontested court hearing analysing the legitimate incomes of the respondents, and theextent to which funds that were derived from significant criminal activity (bothdirectly and indirectly) were used to service and maintain the mortgage of 9 DerbyStreet, would not be justified.[10] The joint memorandum of counsel notes that the sum of $220,000.00 will befunded by a third party through legitimate means.Decision[11] In terms of deterrence, the amount to be forfeited is significant and I amsatisfied it will act as a deterrent both to the respondents and others. I am satisfiedthat the purposes of the Act and the overall interests of justice will be met if I approvethe settlement.[12] I approve the settlement. I make orders in terms of the draft asset forfeitureorder accompanying the joint memorandum. The order may be sealed in the formapplied for.____________________Harland J