COMMISSIONER OF POLICE v CUTLER [2019] NZHC 1108

COMMISSIONER OF POLICE v CUTLER [2019] NZHC 1108 [20 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001659[2019] NZHC 1108UNDER Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND BRIAN PAUL CUTLERRespondentHearing: 20 May 2019Appearances: L Fraser for ApplicantS Lack on behalf of R Mansfield for RespondentJudgment: 20 May 2019JUDGMENT OF VENNING JThis judgment was delivered by me on 20 May 2019 at 2.45 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandCounsel: S Lack/R Mansfield, Auckland[1] On 31 July 2018 the Commissioner applied for restraining and civil forfeitureorders against Mr Cutler.[2] The Commissioner sought the profit forfeiture order against Mr Cutler to thevalue of $1,137,355 on the basis that Mr Cutler unlawfully benefited from significantcriminal activity comprising the cash found in the storage unit of $1,116,480 and bankdeposits of $20,875. In the alternative the Commissioner sought asset forfeiture ordersin respect of the cash on the basis it was tainted property.[3] On 31 August 2018 restraining orders were made in relation to $1,116,480 cashwith the Commissioner's application for civil forfeiture adjourned to a mention in May2019 to follow the expected conclusion of Mr Cutler's jury trial.[4] Counsel have now filed a joint memorandum. The Commissioner and MrCutler have reached agreement and seek the approval of the Court under s 95 of theCriminal Proceeds (Recovery) Act 2009.[5] Mr Cutler was charged with five charges of importing methamphetamine andfour charges of possessing methamphetamine for supply. On 20 March 2019 heentered guilty pleas to four charges of possessing methamphetamine for supply (10.2kilograms) and an additional charge of supplying methamphetamine. The remainingcharges for importing methamphetamine were withdrawn.[6] The criminal proceedings followed an investigation by Police and NewZealand Customs Service. Those investigations supported charges that Mr Cutler wasusing an address at 8D Southgate Place, Henderson to collect methamphetamine. Healso began hiring a storage unit to store packages of methamphetamine. The$1,116,480 cash was seized at the storage unit.[7] The Court must approve the proposed settlement if satisfied it is consistentwith the purposes of the Act and the overall interests of justice.[8] Mr Cutler has not declared any income since arriving in New Zealand on 23September 2017. An analysis of his bank accounts confirmed he had no knownsources of income between 19 October 2017 and 2 February 2018. Despite this hereceived a number of deposits totalling $18,975 into one of his bank accounts.[9] I accept that the proposed settlement is consistent with the purposes of the Actand the overall interests of justice.[10] The Commissioner has a strong case to show the cash is tainted and should beforfeited by way of asset forfeiture orders. All of the restrained property will berealised for the benefit of the Crown. The Commissioner is however prepared to takea pragmatic approach and forego the profit forfeiture application which would haveincluded the additional $20,875. The proposed settlement allows both parties to havecertainty and control as to outcome.[11] There will also be a saving of time and cost if the matter can be resolvedwithout further litigation.[12] Accordingly I confirm the proposed settlement is approved and make thefollowing orders:(a) an assets forfeiture order under s 50(1) of the Act in respect of the$1,116,480 cash seized by police from unit A180, Storage King, 182Swanson Road, Henderson, Auckland on 8 February 2018, plus anyaccrued interest, so that it vests in the Crown absolutely and is to be inthe Official Assignee's custody and control;(b) the Commissioner's application for a profit forfeiture order against MrCutler is noted as withdrawn, with the Commissioner not proceedingwith his application for a profit forfeiture order against Mr Cutler inrelation to the offending at issue in this proceeding; and(c) costs will lie as they fall in relation to all matters as between theCommissioner and Mr Cutler.[13] I record that the settlement is a full and final settlement of the currentproceedings which are now at an end.__________________________Venning J