COMMISSIONER OF POLICE v HINES [2019] NZHC 1668

COMMISSIONER OF POLICE v HINES [2019] NZHC 1668 [17 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-1682[2019] NZHC 1668UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND WILLIAM HINESFirst RespondentTE HERE MAIHI MAAKASecond RespondentTRAVIS JAMES SADLERThird Respondent/contHearing On the papersCounsel: DMA Wiseman and Y Wang for the ApplicantD Dufty on behalf of the Fifth RespondentJudgment: 17 July 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 17 July 2019 at 4.30 pm.Registrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCounsel: D Dufty, AucklandJIA SUNFourth RespondentFALCO BROUQ CELLAH MAAKAFifth RespondentAND TINY BIG WORLD LIMITEDInterested Party[1] In this proceeding, the Commissioner of Police (the Commissioner) seeksforfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) againstthe respondents.[2] I have now received a joint memorandum from counsel for the Commissionerand counsel for the fifth respondent, Falco Maaka (Mr F Maaka), seeking the Court'sapproval under s 95 of the Act to a settlement reached between the Commissioner andMr F Maaka.[3] Any settlement made in relation to proceedings brought under the provisionsof the Act is required to be approved by this Court.1Background[4] In 2015, Mr F Maaka and a number of other members and associates of theHead Hunters Motorcycle Club (Head Hunters) were part of an organised syndicateinvolved in the manufacture and distribution of methamphetamine led by the firstrespondent, Mr William Hines.[5] In March 2017, Mr F Maaka was found guilty and convicted on one charge ofmanufacturing methamphetamine. On 24 April 2017, he was sentenced to 13 years'imprisonment on the basis that, as a patched member of Head Hunters, he exercisedthe role of supervision during the manufacturing process of at least one kilogram ofmethamphetamine on 18 April 2015.2The Commissioner's case[6] The Commissioner relies on Mr F Maaka's criminal conviction as conclusiveproof that he manufactured at least one kilogram of methamphetamine on 18 April2015. The Commissioner also alleges that Mr F Maaka played a role in the supply ofat least 863 grams of methamphetamine for commercial gain in the subsequent period.Accordingly, the Commissioner's case is that the scale and duration of Mr F Maaka'sdrug offending extends beyond that reflected by his criminal conviction. The1 Criminal Proceeds (Recovery) Act 2009, s 95.2 R v Hines [2017] NZHC 769 at [76]–[78].Commissioner bases this submission on evidence that Mr F Maaka was able to acquirea Harley Davidson B5ALP (valued at approximately $25,800) on 14 November 2014despite declaring modest income in the form of Ministry of Social Developmentbenefits during the relevant period.The current proceeding[7] The Commissioner seeks profit forfeiture orders under the Act. He initiallyestimated Mr F Maaka's unlawful benefit to be in the vicinity of $804,978 comprising$369,840, being the sale price of 863 grams of methamphetamine, together with$435,138 in unexplained sources of funds.[8] The Commissioner also contends that the property attributable to Mr F Maaka(the Harley Davidson B5ALP) is "tainted property" under the Act. It is theCommissioner's case that the purchase of the Harley Davidson B5ALP was fundedwith the proceeds of Mr F Maaka's criminal activity.Mr F Maaka's position[9] Mr F Maaka opposes the Commissioner's application. His evidence is that hedid not benefit from the sale of methamphetamine, he was incarcerated for asignificant period during the analysis period, and he was financially supported by hismother when he was living in the community. He stated that the Harley DavidsonB5ALP was gifted to him by another Head Hunters member in 2014.Commissioner's adjusted claim[10] As a result of Mr F Maaka's claims and the supporting documents provided byhim, the Commissioner adjusted the unexplained source of funds figure during theanalysis period to $166,792.20. Accordingly, the Commissioner now seeks a profitforfeiture order in the vicinity of $536,632.20.The proposal[11] The proposed terms of settlement between the Commissioner and Mr F Maakaare as follows:(a) assets forfeiture orders under s 50(1) of the Act are to be made byconsent in respect of the Harley Davidson B5ALP attributed toMr F Maaka;(b) the settlement is full and final in respect of any interests Mr F Maakamight claim to have in any of the other property restrained in thisproceeding;(c) the Commissioner's application for a profit forfeiture order againstMr F Maaka is withdrawn and he will not proceed with any applicationfor a profit forfeiture order against Mr F Maaka in relation to theoffending at issue in this proceeding; and(d) costs will lie where they fall in relation to all matters as between theCommissioner and Mr F Maaka.[12] The estimated total value of the property to be forfeited as a result of theproposed settlement is approximately $14,5000.Decision[13] Section 95 of the Act governs court-approved settlements and provides that: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.[14] 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[15] In this case, the only restrained property attributable to Mr F Maaka, namelythe Harley Davidson B5ALP, will be realised for the benefit of the Crown. Any profitforfeiture order made by the Court against Mr F Maaka is likely to significantly exceedthe value of the restrained property attributed to Mr F Maaka (by more than $510,000).The Commissioner advises he is unaware of any additional assets belonging toMr F Maaka which could be realised to satisfy the greater amount.[16] I therefore consider the settlement is a sensible resolution of the claim againstMr F Maaka. There is little point in the Commissioner proceeding to trial andobtaining a profit forfeiture order against Mr F Maaka that could never be satisfiedfrom restrained or other assets.[17] The Commissioner is accordingly taking a pragmatic approachnotwithstanding the apparent strength of his case. An agreed settlement allows theparties to have certainty and control as to the outcome of these matters. I also agreewith the parties that there will be a saving of time and especially cost if the matter canbe resolved by agreement.[18] I therefore approve the proposed settlement under s 95 of the Act and makeorders as sought in [6.1] of the joint memorandum dated 10 July 2019, namely:(a) assets forfeiture orders under s 50(1) of the Act in respect of the fundsheld in the Official Assignee's trust account, representing the net saleproceeds of the Harley Davidson, formerly registered to Mr F Maaka,registration B5ALP, and any accrued interest, so that it vests in theCrown absolutely and is in the custody and control of the OfficialAssignee;3 Criminal Proceeds (Recovery) Act, s 3(1)(a) and (b).(b) the settlement is full and final in respect of any interests Mr F Maakamight claim to have in any of the other property restrained in thisproceeding;(c) The Commissioner's application for a profit forfeiture order againstMr F Maaka is withdrawn and he will not proceed with any applicationfor a profit forfeiture order against Mr F Maaka in relation to theoffending at issue in this proceeding; and(d) costs will lie where they fall in relation to all matters as between theCommissioner and Mr F Maaka.[19] Finally, I note that the Commissioner's application as against Messrs Sadlerand Gush remains for determination notwithstanding this settlement. The hearing dateof 11 September 2019 therefore remains.___________________________________Gordon J