COMMISSIONER OF POLICE v KARETU [2023] NZHC 1585

COMMISSIONER OF POLICE v KARETU [2023] NZHC 1585 [23 June 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2022-412-123[2023] NZHC 1585BETWEEN COMMISSIONER OF POLICEApplicantAND BOYCEE LINTON JUNIOR KARETURespondentHearing: On the papersAppearances: R D Smith for ApplicantS A Saunderson-Warner for RespondentJudgment 23 June 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 23 June 2023 at 3 pm, pursuant to r 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The Commissioner of Police has made an on notice application for a restrainingorder in respect of $17,660 (together with interest), seized from Mr Karetu on2 December 2021, pursuant to the Search and Surveillance Act 2012. TheCommissioner has also applied for civil forfeiture orders as follows:(a) an assets forfeiture order in the sum of $17,6601 obtained in cash; or inthe alternative,(b) a profit forfeiture order totalling $63,982.81 which was to be met inpart by the cash sum referred to above, and the balance as a civil debt.[2] I am now in receipt of a consent memorandum as to the making of an assetforfeiture order. Specifically, the respondent consents to the making of an assetforfeiture order in respect of the cash sum seized by New Zealand Police on2 December 2021 and any interest accrued on that sum since the cash was seized.[3] The Commissioner of Police will not seek a restraining order and invites theCourt to dismiss that application. The Commissioner of Police will also not seek aprofit forfeiture order and the Court is invited to dismiss that application. The partiesadvise that they agree that costs are to lie where they fall.Discussion[4] I note that the proposed resolution is subject to s 95 of the Criminal Proceeds(Recovery) Act 2009 as a "settlement" between the Commissioner of Police and thedefendant. That is because, in accepting the making of the asset forfeiture order only,the Commissioner of Police is relinquishing the right to pursue the profit forfeitureorder.[5] Under s 95(2) and (3), a settlement is not binding unless the High Courtapproves it, and the High Court can only approve settlement if it is satisfied it isconsistent with:(a) the purposes of this Act; and(b) the overall interests of justice.1 The on notice application for a restraining order refers to a sum of $17,660 comprising $1,160 incash in a shoulder bag and $16,000 in cash in a black bag, and I use this figure throughout.[6] Given an assets forfeiture order and a profit forfeiture order are alternativeforms of relief which can be granted, I am satisfied it achieves the purposes of the Actto pursue the asset forfeiture order only. Such an order ensures the forfeiture ofproperty derived as a result of significant criminal activity, and is in the overallinterests of justice. I also acknowledge there are practical impediments to pursuingthe profit forfeiture order initially pleaded, given Mr Karetu's personal circumstances.[7] Accordingly, I order:(a) the sum of $17,660 in cash (along with any interest earned on that sum),seized by police during the execution of a search warrant on2 December 2021, from a motor vehicle registered to the respondent;(i) vests in the Crown absolutely; and(ii) is to be in the Official Assignee's custody and control;(b) the application for a profit forfeiture order is dismissed; and(c) costs are to lie where they fall.[8] As these orders bring the proceedings to a conclusion, the telephone conferencescheduled for 3 pm on Monday 26 June 2023 is vacated.Solicitors:Crown Solicitor, DunedinCopy To:S A Saunderson-Warner, Barrister, Dunedin