COMMISSIONER OF POLICE v HINES [2019] NZHC 1613

COMMISSIONER OF POLICE v HINES [2019] NZHC 1613 [11 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-1682[2019] NZHC 1613BETWEEN COMMISSIONER OF POLICEApplicantAND WILLIAM HINESFirst RespondentTE HERE MAIHI MAAKASecond RespondentTRAVIS JAMES SADLERThird RespondentHearing: On the papersAppearances: D M A Wiseman / Y Y Wang for CommissionerSecond Respondent in personJudgment: 11 July 2019JUDGMENT OF LANG J[approving settlement between applicant and second respondent]This judgment was delivered by me on 11 July 2019 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In this proceeding the Commissioner of Police seeks forfeiture orders underthe Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondents. TheCommissioner and the second respondent, Mr Te Here Maihi Maaka, now seek theCourt's approval under s 95 of the Act to a settlement of the litigation as betweenthemselves.[2] Mr Maaka was formerly represented by counsel, but confirms he now wishesto act on his own behalf to bring his participation in this proceeding to a conclusion.Background[3] In 2017, Mr Maaka and several others were found guilty following a trial oncharges of manufacturing methamphetamine and other drug-related charges. Theywere also convicted of firearms charges and participating in an organised criminalgroup. This led to Mr Maaka being sentenced to 16 years two months imprisonmenton the basis that he played an important role in the manufacture of at least onekilogram of methamphetamine.1 The Court of Appeal subsequently dismissedMr Maaka's appeal against conviction but reduced the sentence imposed on him toone of 14 years eight months imprisonment with a minimum term of six years sevenmonths.2The Commissioner's case[4] The Commissioner relies on Mr Maaka's convictions as providing conclusiveproof that he manufactured at least one kilogram of methamphetamine on 18 April2015 and that he supplied at least 863 grams of methamphetamine for commercialgain thereafter. The Commissioner contends, however, that the scope and duration ofMr Maaka's drug offending extended well beyond that reflected by his criminalconvictions. The Commissioner bases this argument on evidence suggesting thatMr Maaka has accumulated significant assets, mostly in the form of motor vehicles,despite declaring no income during the period between July 2008 and July 2015.1 R v Hines [2017] NZHC 769 at [29]-[33].2 Te Here Maihi Maaka v R [2017] NZCA 618 at [46]-[52] and [147].[5] The Commissioner seeks profit forfeiture orders under the Act, and estimatesthe unlawful benefit derived by Mr Maaka through his offending to be in the vicinityof $958,449. This comprises the value of 863 grams of methamphetamine ($369,840)together with unexplained sources of funds ($588,609).[6] Several of the vehicles that the Commissioner attributes to Mr Maaka in hisapplication for civil forfeiture orders are held in the names of third parties. TheCommissioner contends these were under the effective control of Mr Maaka and aretherefore available to meet any profit forfeiture order made against him. None of thethird parties has opposed the Commissioner's application for civil forfeiture orders.[7] The Commissioner contends that all property attributable to Mr Maaka is alsotainted property in terms of s 5 of the Act because Mr Maaka has declared no incomesince 2008. The Commissioner says the acquisition of the property must have beenfunded using the proceeds of Mr Maaka's criminal activities.The proposal[8] The proposed settlement contains the following essential components:(a) The making of assets forfeiture orders under s 50(1) of the Act inrelation to all remaining restrained property attributed to Mr Maakaexcept for the sum of $5,000. This sum is to be returned to Mr Maakaby deposit to a bank account nominated by him;(b) The settlement is full and final in relation to any interest Mr Maakamight claim to have in any of the other property restrained in thisproceeding;(c) Mr Maaka gives the Commissioner an undertaking that all property tobe forfeited under this settlement and now, or previously, held in thirdparties' names (whether in the names of individuals or companies) is,or was, held on his behalf;(d) The Commissioner's application for a profit forfeiture order againstMr Maaka will be withdrawn and he will not proceed with anyapplication for a profit forfeiture order against Mr Maaka in relation tothe offending at issue in this proceeding; and(e) Costs will lie where they fall in relation to all matters as between theCommissioner and Mr Maaka.[9] The Commissioner estimates the proposed settlement will result in property tothe value of approximately $93,647 being forfeited whilst Mr Maaka will retain thesum of $5,000 in cash. The Commissioner is not aware of any other assets belongingto Mr Maaka that could be realised to satisfy any profit forfeiture order he mightobtain.Decision[10] I am satisfied that the proposed settlement recognises the primary purpose ofthe Act, which is to provide for forfeiture of property derived directly or indirectlyfrom significant criminal activity, or property representing the value of a person'sunlawfully derived income.3[11] I also consider the settlement is a sensible resolution of the claim againstMr Maaka. There is little point in the Commissioner proceeding to trial and obtaininga profit forfeiture order against Mr Maaka that could never be satisfied from restrainedor other assets.[12] The Commissioner is therefore taking a pragmatic approach notwithstandingthe apparent strength of his case. This will allow both parties to achieve certainty asto the outcome of this proceeding. It will also result in a significant saving of costsfor the Commissioner because he will not now need to go to trial on the claim againstMr Maaka.3 Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (b).Result[13] I approve the proposed settlement under s 95 of the Act, and make orders assought in para 6.1 of the joint memorandum dated 10 July 2019.[14] I also record that Mr Maaka has given the Commissioner an undertaking thatall property to be forfeited that is now, or was previously, held in the names of thirdparties (whether individuals or companies) is or was held on his behalf.Lang JSolicitors:Crown Solicitor, Auckland