COMMISSIONER OF POLICE v FOLAUHOLA MEILOTO OKALANI KI TUTULUPEATAU POLAULU [2017] NZHC 2106

COMMISSIONER OF POLICE v FOLAUHOLA MEILOTO OKALANI KI TUTULUPEATAU POLAULU[2017] NZHC 2106 [31 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-001457[2017] NZHC 2106BETWEEN COMMISSIONER OF POLICEApplicantAND FOLAUHOLA MEILOTO OKALANI KITUTULUPEATAU POLAULURespondentHearing: On the papersAppearances: K Hogan for the ApplicantJudgment: 31 August 2017JUDGMENT OF VAN BOHEMEN J﷢﷢﷢﷢﷢This judgment was delivered by me on 31 August 2017 at 3.30 pmPursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Kayes Fletcher Walker, Auckland katie@kfw.co.nzCounsel: A Ives, Barrister, Auckland annabelives@xtra.co.nz[1] In this proceeding, the Commissioner of Police has been seeking forfeitureorders under the Criminal Proceeds (Recovery) Act 2009 (Act), namely:(a) Forfeiture of certain property located at the home address of therespondent, 19 Dunkirk Road, Panmure:(i) $118,690 in cash;(ii) A 2016 Harley Davidson motorbike, registration B2GYF;(iii) A 2008 Cadillac Escalade, registration trade plate 3067X, being"tainted property" in terms of s 5 of the Act in that it was whollyor in part acquired or derived from significant criminal activity;and(b) Forfeiture of profits the respondent may have obtained from significantcriminal activity.[2] The Commissioner asserts that the property derives from dealing in controlleddrugs and/or the respondent has unlawfully benefitted from dealing in controlleddrugs, and the assets should be forfeited to offset that unlawful benefit. In November2014, the respondent was convicted of participating in an organised criminal groupand was sentenced to 10 months home detention. He was acquitted or discharged,however, on other charges relating to the manufacture and supply ofmethamphetamine and the supply of pseudoephedrine.[3] In a joint memorandum of counsel dated 28 September 2017, counsel for theCommissioner and the respondent advised they had reached a settlement. Theproposed settlement is:(a) The respondent will consent to an assets forfeiture order being made inrespect of the property;(b) The Commissioner will forego his application for a profit forfeitureorder in respect of the respondent;(c) Costs lie where they fall.Decision[4] Section 95 of the Act provides: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.[5] Section 3 of the Act provides:3 Purpose(1) The primary purpose of this Act is to establish a regime for theforfeiture of property—(a) that has been derived directly or indirectly from significantcriminal activity; or(b) that represents the value of a person's unlawfully derived income.(2) The criminal proceeds and instruments forfeiture regime establishedunder this Act proposes to—(a) eliminate the chance for persons to profit from undertaking orbeing associated with significant criminal activity; and(b) deter significant criminal activity; and(c) reduce the ability of criminals and persons associated with crimeor significant criminal activity to continue or expand criminalenterprise; and(d) deal with matters associated with foreign restraining orders andforeign forfeiture orders that arise in New Zealand.[6] I am satisfied the proposed settlement is consistent with the purpose of the Actbecause it ensures that the most significant assets found at the respondent's home andwhich are believed to have been derived from significant criminal activity will beforfeited.[7] The evidence suggests the property was derived from significant criminalactivity and is either property of the respondent or property over which the respondenthas effective control. It is fully consistent with the purpose of the Act as set out in s 3of the Act that the property should be forfeited. According to the affidavits filed insupport of the Commissioner's application, the respondent has little income and fewother assets.[8] The settlement, therefore, is both pragmatic in that it recognises the realities ofthe situation but will still send an appropriate deterrent message in terms of s 3 of theAct.[9] Accordingly, I approve the terms of the proposed settlement.[10] I invite counsel to file a further joint memorandum with a draft order forsealing.________________van Bohemen J