R v MATAMATA [2020] NZHC 1530

R v MATAMATA [2020] NZHC 1530 [1 July 2020]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIMSPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-020-003953[2020] NZHC 1530IN THE MATTER OF an Instrument Forfeiture OrderUNDER Sections 142A to 142Q of the SentencingAct 2002BETWEEN The QueenAND JOSEPH AUGA MATAMATACIV-2018-441-000101UNDER Subpart 4 of Part 2 of the Criminal Proceeds(Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND JOSEPH AUGA MATAMATAFirst RespondentSIA'ANATOE AUGA MATAMATASecond RespondentAND MAMONA TYSON JOSEPH AUGAMATAMATAFirst Interested PartyTAMAFAIGA NIXON JOSEPH AUGAMATAMATASecond Interested PartyASB BANK LTDThird Interested PartyANZ BANK NEW ZEALAND LTDFourth Interested PartyHearing: 23 June 2020Counsel: C R Walker for the CrownR Philip of the First RespondentM Hamilton for the Second RespondentR D Stone for the First and Second Interested PartiesJudgment: 1 July 2020Reissued: 30 July 2020JUDGMENT 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 offencesof dealing in slaves.1 After the entry of the convictions, Mr Matamata was remandedin custody for sentence on 6 May 2020. All offences are qualifying instrumentforfeiture offences.2[2] The background facts to the offending are that Mr Matamata arranged the entryof 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 comingto work in New Zealand. The arrangement was that each of the victims would livewith Mr Matamata and his family at the Kiwi Street properties in Hastings, where theywould be given food and accommodation and undertake work as organised byMr Matamata. The individuals from all four groups, comprising 13 victims, were usedas slaves and 10 were the subject of trafficking in persons.31 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, inrespect of a total of 13 victims. He was convicted of all 13 slavery charges and 10 of the traffickingcharges. 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 inrespect of Mr Matamata's partial interest in the Kiwi Street properties was made byconsent, in the sum of $215,000.4Background to instrument forfeiture hearing[4] At a teleconference convened during the COVID-19 lockdown period, theCrown signalled that in the prosecutor's opinion, the Court should consider whetherto 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 underthe Act and that if an instrument forfeiture order were to be made either before or atsentencing, it could be taken into account in imposing sentence and potentially beadvantageous to Mr Matamata.5 Mr Walker considered the prosecutor's obligationwas 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 shouldconsider making an instrument forfeiture order and if so, the statutory requirementsunder s 142C-Q apply.6 The Crown advised in its memorandum filed with the s 142Bnotice that it would be seeking an order for reparation at sentencing and filed furtherinformation regarding the value of the Kiwi Street properties, outstanding mortgagebalances and arrears. The question for the Court then became whether the civilproceedings under the Criminal Proceeds (Recovery) Act 2009 should be heardsubsequent to sentencing, with provision ordered for the interests of victims out of thebalance of the sale proceeds of the properties, or whether the instrument forfeiturehearing should be made prior to sentencing to enable a forfeiture order, if made, to betaken into account.[6] A further teleconference was convened, to hear from Counsel about the twoavailable options to meet both the sentencing requirements and thetrafficking in persons was enacted and in respect of one of the victims, the representation regardinghis 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 shouldtake 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 propertiesneeded to be resolved at such a hearing; and under s 142J other persons, such asMrs Matamata and the two sons who are registered proprietors of the Kiwi Streetproperties respectively, could make applications for relief.[7] Directions were made for service of the s 142B notice and a declaration ofownership of the properties was to be filed together with further information about theproperties as required under ss 142C, 142F and 142H of the Sentencing Act.8 Ahearing 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. Twodeclarations of ownership were filed by each of Tamafaiga and Mamona Matamata,the first and second interested parties and the defendant's sons, together withapplications for relief against an instrument forfeiture order. Each of Tamafaiga andMamona are currently the registered proprietors of the Kiwi Street properties, and eachinitially opposed the making of a forfeiture order.[9] Mr Matamata filed a declaration of ownership, declaring that he did not ownnor have an interest in the properties since 30 November 2012, when the propertieswere 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 theproperties under the Property (Relationships) Act 1976, in the event the Court heldthat the properties belonged to Mr Matamata.[11] ANZ Bank New Zealand Ltd and ASB Bank Ltd, the third and fourth interestedparties, also both filed applications for relief from forfeiture, on the grounds that thebanks had an interest in the property identified in the respective mortgages registered7 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 opposedby any of the parties. A restraining order over the properties, which was obtainedshortly after Mr Matamata's arrest, has been amended by consent to exclude themortgagee interests of the ANZ and ASB Banks from the properties which arecurrently restrained.[12] The Crown challenged the ownership and control of the properties and opposedthe applications for relief by Mrs Matamata and the first and second interested parties.[13] After the parties had filed their respective submissions and immediately priorto the hearing, Counsel for the parties advised that they were negotiating a settlementof the Crown's application and the hearing was adjourned for one day to enableCounsel to finalise those settlement discussions.Orders by consent[14] The Crown, Mr Matamata, Mrs Matamata and two sons, the first and secondinterested parties, agreed on a draft Instrument Forfeiture Order and by jointmemorandum 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'spartial interest in the Kiwi Street properties of $215,000. It was further agreed thatthe equity in the properties is $437,262 of which $215,000, being 49 per cent of theequity, was the agreed partial interest of Mr Matamata.[15] As noted, the applications by ASB and ANZ for relief from any instrumentforfeiture was not opposed by any of the parties and their interests were excluded fromthe extant restraining order.[16] After reading the material filed prior to the hearing, namely Counsel'ssubmissions, the affidavits filed and the summaries of bank transactions andcalculations that were provided by the Crown witnesses, I was satisfied that the KiwiStreet properties were instruments of crime as required under s 142N of the Act.10Having had regard to whether it was appropriate to grant relief to Mrs Matamata and10 See also Sentencing Act, s 4.the two sons of the family, I was satisfied that the agreed draft order was appropriatein this case.[17] I made the consent Instrument Forfeiture Order, in terms of the draft orderprovided by the parties in open Court. Following the making of the InstrumentForfeiture Order, further amendments were made to the order, the final order of whichappears at the end of this judgment. The details of the alterations are contained in aminute.11 Essentially, the amendments were made to allow the expiry of the relevantappeal period before the sum of $215,000, or sale proceeds in the event of default, canbe applied in terms of the Order.[18] I now give the reasons for my making the Instrument Forfeiture Order.Reasons for Instrument Forfeiture OrderSentencing Act provisions[19] After following the steps under ss 142B to 142N, the Court may makeinstrument forfeiture orders under s 142N of the Act. Normally, such orders are madeas part of the sentencing process, but in this case, sentencing did not take place untilthe Court determined whether an instrument forfeiture order should be made. Thereason for conducting the instrument forfeiture hearing prior to sentencing was toresolve the issues of ownership and/or control of the properties, given the declarationsthat 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 10Bof the Act, it must be an instrument forfeiture order.[20] The Court of Appeal in Henderson v R confirmed that instrument forfeiture isthe only type of forfeiture order that can be taken into account at the sentencing stage.12Although proceedings had been commenced under the Criminal Proceeds (Recovery)Act 2009 here, the Crown elected to pursue its application for an instrument forfeitureorder to ensure that it could be taken into account in the sentencing process, which11 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 thenfall away.[21] Section 142N of the Act provides the jurisdiction for instrument forfeitureorders:142N Instrument forfeiture orders(1) Following a hearing under section 142K, the court may, if itis satisfied that the property described in the notice givenunder section 142B is an instrument of crime, order that theinstrument of crime or any part of it specified by the court beforfeited to the Crown.(2) In considering whether or not to make an instrument forfeitureorder under subsection (1) in respect of particular property,the court may have regard to—(a) any matter raised in an application for relief undersection 142J; and(b) the use that is ordinarily made, or was intended to bemade, of the instrument of crime; and(c) any undue hardship that is reasonably likely to becaused to any person by the operation of such anorder; and(d) the nature and extent of the offender's interest in theinstrument of crime (if any), and the nature and extentof any other person's interest in it (if any); and(e) in addition to the matters referred to insection 77(1) of the Criminal Proceeds (Recovery)Act 2009, any other matter relating to the nature andcircumstances of the qualifying instrument forfeitureoffence or the offender, including the gravity of thequalifying instrument forfeiture offence.(3) A court that makes an instrument forfeiture order may, if itconsiders that it is appropriate to do so, by order,—(a) declare the nature, extent, and value of any person'sinterest in an instrument of crime; and(b) declare that the instrument forfeiture order may, to theextent to which it relates to the interest, be dischargedunder section 85 of the Criminal Proceeds(Recovery) Act 2009.(4) If the court orders that property (other than money) beforfeited to the Crown, the court must specify in the order theamount that it considers to be the value of the property at thetime the order is made.(5) If a court makes an instrument forfeiture order, the court maygive any directions that are necessary or convenient for givingeffect to the order.[22] The section contains a number of steps which Woolford J followed in R v Vande 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 theinterests 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 theInstrument 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 commissionof, 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 theproperty has only been used in part for the purposes of crime, the entireproperty is an instrument of crime and may be subject to forfeiture.[26] The Crown submitted that both the Kiwi Street properties fell within thedefinition of "instrument of crime" because the properties were fundamental to thecommission of the slavery offences, which was achieved in part by having the victims13 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 wasto exploit the victims for financial gain and the means of exploiting them was byexercising control over them. Thus, having the victims live with Mr Matamata at hishome and being dependent on him for accommodation and meals was a crucial part ofhis exercise of control over them.[27] The evidence relating to the control exercised over the victims byMr Matamata included the restriction the victims' freedom of movement by limitingtheir ability to leave the property without Mr Matamata's permission, by locking thegate to the properties, the retention by Mr and Mrs Matamata of the victims' passportsand restricting their freedom of communication. The Crown points to the evidenceshowing an ever-present threat of violence, more at home, the Crown says, than atwork. The fact that the victims were illegal overstayers or illegal workers (with theexception of the group four victims) made the victims more vulnerable.[28] The Crown also submitted that the properties were relevant to the commissionof the trafficking offences because the arrangement with all the victims included thatthey would come to live with Mr Matamata at his home, and Mr Matamata's addresswas provided to the immigration authorities in order to obtain temporary visas for thevictims. This facilitated the victims' entry into New Zealand, which is part of thetrafficking 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 andMrs Matamata by a mortgage secured over both properties and the five group twovictims, who arrived on 14 July 2003, arrived less than two months after the purchaseof that property. Five more Samoan nationals, sponsored by Mrs Matamata, arrivedone month later on 16 August 2003. The Crown says that the first property facilitatedthe purchase of the second property and thereby facilitated further offending. For thatreason, the Crown submitted that both properties were instruments of crime as in R vBright, where a similar mortgage arrangement justified both properties being held tobe instruments of crime even though no offending was carried out at the firstproperty.15[30] The Defence initially challenged the Crown's claim that both properties wereinstruments of crime. In particular, the Defence submission was that the first propertywas not "a slave house", but was the family home of the Matamata family. The onlyvictims who stayed in the house were two victims from group 1, whom the Defencesay were close family, being Mr Matamata's sister's children. The Defence drew adistinction between the two properties and said the second property was "primarily"the property where the victims were accommodated and from which they left regularlyto engage in horticultural work. In any event, the Defence submitted thataccommodating the victims in itself is not sufficient to determine the dwelling houseas an instrument of crime.[31] The Defence further disputed the Crown's claim that the security taken overthe first property for the purchase of the second property makes the family home, thefirst property, an instrument of crime. This, the Defence said, is the difference between"tainted" property under the Criminal Proceeds (Recovery) Act and an instrument ofcrime under the Sentencing Act.[32] As a result of settlement discussions, the parties reached agreement thatMr Matamata's partial interest in the properties is approximately 49 percent of theequity of the net equity of both properties, being $215,000.[33] For present purposes, I am satisfied that both Kiwi Street properties wereinstruments of crime. From the evidence at trial both the properties were treated asone 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 arrivedless than two months after the purchase of the second property, were required toconcrete 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 commissionof the slavery offences, enabling Mr Matamata to exercise control over the victims.The victims were dependent on him for their accommodation and meals. They werevulnerable because of their immigration status, and their lack of control over theirpassports. They were unable to move out of the property without Mr Matamata'spermission and were restricted in their communication with others, both inNew Zealand and in Samoa.[35] I find that the properties were also relevant to the commission of the traffickingoffences because the arrangement of the victims' entry into New Zealand depended ontheir living at the Matamata address, which was provided to immigration authoritiesin order to obtain their visas. Although the provision of accommodation did not affectthe false representation made by Mr Matamata to the victims about the net incomethey would receive, their entry into New Zealand could not have been effected withoutidentifying a residential address.[36] I am satisfied therefore that the offences for which Mr Matamata has beenconvicted are qualifying instrument forfeiture offences under s 4 of the Act, as theyare punishable by a maximum term of imprisonment of five years of more, and theKiwi 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 sonsdeclaring that the sons were the registered proprietors of the respective properties.Although the defence initially claimed that Mr Matamata lost effective control overthe properties when they were sold to each of his sons in 2012, it is plain from theevidence that Mr Matamata had, at all times, effective control of both properties. Theparties have since agreed that Mr Matamata does have a partial interest in theproperties due to having effective control over them.[38] Before making an instrument forfeiture order, the Court must first determinethe extent of the interest of the offender in the property claimed. "Interest" is definedin 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 andthe Criminal Proceeds (Recovery) Act is whether the person has effective control overproperty. If so, that control is treated as an "interest" in property.[40] Importantly, s 142I of the Sentencing Act provides that for the purpose ofdetermining 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:58 Court may treat effective control over property as interest inproperty(1) If the High Court is satisfied that a respondent has effectivecontrol over property, the Court may, on an application madeby the Commissioner, order that the property is to be treatedas though the respondent had an interest in the propertyspecified by the Court.(2) An order under subsection (1) may—(a) be made even if the respondent has no interest in theproperty; and(b) specify an interest that differs from the interest thatthe respondent has in the property.(3) Without limiting the generality of subsections (1) and (2), theCourt may have regard to—(a) shareholdings in, debentures over, or directorships of,any company that has an interest (whether direct orindirect) in the property; and(b) any trust that has a relationship to the property; and(c) family, domestic, and business relationships betweenpersons having an interest in the property or incompanies of the kind referred to in paragraph (a) orin trusts of the kind referred to in paragraph (b), andany other persons.(4) Property that is subject to an order under subsection (1) maybe included in any profit forfeiture order and in anyrestraining order that is made against the respondent.(5) If the Commissioner applies for an order undersubsection (1),—(a) the Commissioner must, so far as it is practicable todo so, serve notice of the application on therespondent and on any person who, to the knowledgeof the Commissioner, has an interest in the property;and(b) the respondent and any other person who claims aninterest in the property are entitled to appear and toadduce evidence at the hearing of the application.[Emphasis added][41] As the courts have held, effective control of the property occurs when theoffender can control, use or treat the property as his or her own,16 or, in the case of afamily relationship, when there is an ability of the offender to influence or control afamily member in relation to the use of the property.17[42] The parties have agreed that Mr Matamata has effective control over theproperties and therefore a partial interest in them, and I consider that is an appropriateconcession on the evidence, both adduced at trial and the evidence sworn for thepurposes of this hearing. Mr Matamata treated the properties as belonging to himduring the trial, confirming that he had worked hard to earn the money to purchase theproperties and that he was the matai having the power and authority over his familyand 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, furtherconfirmed that in reality Mr and Mrs Matamata retained effective control of bothproperties. The respective properties were put into their sons' names but the structureof the transaction was such that no money was paid by the sons. The purported salesto the sons were, in effect, a means of refinancing the properties for a lower mortgage16 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 andMrs Matamata entered into a binding contract to repurchase the first property from thesecond 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, ratesand insurance payments for both properties.[44] I am satisfied that Mr Matamata had "effective control" as that term is used ins 58 of the Criminal Proceeds (Recovery) Act, over both properties and retained thatcontrol, as recorded through the financial transactions, the sale and purchaseagreement dated 25 July 2016 and the "paper" transactions with both sons when theybecame the registered proprietors. This means that Mr Matamata has an interest in theproperties. I have accordingly been satisfied that Mr Matamata had an interest in theproperties 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 ofcrime. The parties have quantified Mr Matamata's interest at $215,000. This partialinterest, representing a 49 per cent equity of both properties, is in my view anappropriate 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 andMrs Matamata lived throughout the time of the offending. I also bear in mind that theevidence during the trial revealed that the monies that were earned by Mr Matamataand his children, together with that of the victims, were pooled into the family'sresources. The sum of $215,000 is therefore appropriate.[46] In considering whether to order forfeiture, the Court may take into account thefive matters under s 142N(2), including any other matter relating to the nature andcircumstances of the offending.18 There is no doubt that in addition to qualifying asinstrument forfeiture offences, the convictions represent the very serious nature of theoffending.[47] For all of the reasons canvassed above, including the serious nature andcircumstances of the offending and the financial gain obtained from the offending, aninstrument 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 anyundue hardship that is reasonably likely to be caused to any third person.19 The Courtmay also grant relief from an instrument forfeiture order on the grounds of unduehardship or where the applicant for relief establishes an interest in the property.20 Aswith the other matters to be taken into consideration, this is a discretionary matter forthe Court. Because the parties have reached agreement both as to the sum to beforfeited and the terms of the order, no orders for relief under either ss 142L or 142Mof 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 extantRestraining Order, as amended by consent at the time of making the InstrumentForfeiture Order on 23 June 2020.[50] As the parties jointly proposed in their memorandum, the Instrument ForfeitureOrder provides for the interests of the victims of the defendant's offending as well asfor the defendant's family. By virtue of their agreement, the financial advantages ofthe Instrument Forfeiture Order are that:(1) forfeiture of the properties themselves and subsequent sale may or maynot have realised the current market values, particularly in the presentCOVID-19 level one climate;(2) the sale of the properties by the Official Assignee may have incurredadditional costs which would need to be deducted from the saleproceeds; and(3) the directions contained in the order as to the applications of theforfeited funds ensures that there is means of payment to the victims insatisfaction 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 berealised through refinancing and in turn, the Amended Restraining Order was removedfrom the properties but attached to the funds to be deposited into the OfficialAssignee's trust account. Thus, the Amended Restraining Order accompanied theproposed Instrument Forfeiture Order and both were made by consent.[52] I record that the Commissioner of Police has confirmed through CrownCounsel that the Commissioner will not apply for civil forfeiture orders if the forfeitedfunds are applied in accordance with [d] of the Instrument Forfeiture Order, after theexpiry of the relevant appeal period.21[53] In making the Instrument Forfeiture Order under s 142N(1), I was satisfied thatthe properties were an instrument of crime and having regard to the matters canvassedin this decision and contained under s 142N(2) of the Act, I found that Mr Matamata'spartial interest in the properties valued at $215,000 was appropriate and fair in thecircumstances.Conclusion[54] In the exercise of the Court's discretion, an Instrument Forfeiture Order unders 142N of the Sentencing Act was made at Napier High Court on 23 June 2020 on thefollowing grounds:(1) the offences for which Mr Matamata has been convicted are qualifyinginstrument 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 byvirtue 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 themortgagee banks or members of the defendant's family because theproperties themselves are not to be sold or forfeited; and(5) the making of the order under s 142N(1) is appropriate after havingregard 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 Act2002 is as follows:(a) The following properties are instruments of crime:(i) the property at 808 Kiwi Street, Camberley, Hastings, registered inthe name of Mamona Tyson Joseph Auga Matamata and describedin record of title unique identifier HBH4/950, legal description Lot50 DP 113300; and(ii) the property at 810 Kiwi Street, Camberley, Hastings, registered inthe name of Tamafaiga Nixon Joseph Auga Matamata and describedin record of title unique identifier HBJ4/277, legal description Lot50 DP 113300.(b) The values of the properties as per market valuations dated 17 June 2020are $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 custodyand control of the Official Assignee.(d) The order is to be effected by the defendant paying the sum of $215,000into the New Zealand Insolvency & Trustee Service Proceeds of CrimeAccount (the Official Assignee's trust account) by 4.00pm on 24 July2020 to be applied by the Official Assignee as soon as practicable afterthe expiry of the relevant appeal period (defined in s 73 of the CriminalProceeds (Recovery) Act 2009) as follows:(i) first, by paying the costs recoverable by the Official Assignee unders 87 of the Criminal Proceeds (Recovery) Act 2009 (those costsbeing $21,387.94 as at 19 June 2020 but continuing to accrue);(ii) secondly, by paying the Commissioner of Police the amount of hiscosts relating to the restraining order over the properties (thosecosts being $3,767.40 as at 19 June 2020 but continuing to accrue);(iii)thirdly, by paying the balance remaining after payment of the costsreferred to in paragraphs (i) and (ii) above to the Napier High Courtin satisfaction of any sentence of reparation imposed on thedefendant as part of his sentencing on the qualifying instrumentforfeiture order; and(iv) fourthly, if the sum ordered by the High Court to be paid asreparation is less than the amount referred to in paragraph (iii)above, or no sentence of reparation is imposed, then the balanceremaining after payment of the amounts referred to in paragraphs(i), (ii) and (iii) above shall be applied in accordance with s 85 ofthe Criminal Proceeds (Recovery) Act 2009.(e) If the sum of $215,000 is not paid into the Official Assignee's trustaccount by 4.00pm on 24 July 2020 then as soon as practicable after theexpiry of the relevant appeal period (defined in s 73 of the CriminalProceeds (Recovery) Act 2009):(i) the Official Assignee shall sell the properties referred to inparagraph (a) above for fair market value and apply the saleproceeds as follows:(A) first, by paying all reasonable costs in effecting the sales;(B) secondly, by repaying all indebtedness secured by mortgage9244516.3 registered against the title of 808 Kiwi Street,Hastings in favour of ASB Bank Limited and by mortgage9992272.3 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 instrumentforfeiture order in paragraph (c) above in accordance withdirections in paragraph (d) above; and(D) fourthly, by returning any residual proceeds to MamonaTyson Joseph Auga Matamata and Tamafaiga Nixon JosephAuga Matamata on a pro rata basis;(ii) for the purposes of effecting a sale of the properties in accordancewith paragraph (e)(i) above, the Official Assignee (including aperson delegated his functions and powers under the CriminalProceeds (Recovery) Act 2009) has the power to execute any deedor instrument in the name of the registered proprietors and to doanything necessary to give validity and operation to the deed orinstrument.Cull JSolicitors:Crown Solicitor's Office, Napier for the CrownMessrs Bramwell Bate Solicitors, Hastings for the first respondentMarket Street Chambers, Hastings for the second respondentSouness Stone Law Partnership, Hastings for the first and second interested parties