COMMISSIONER OF POLICE v NAKETOA [2023] NZHC 921

COMMISSIONER OF POLICE v NAKETOA [2023] NZHC 921 [26 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-105[2023] NZHC 921UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND FRANK FAAOLOAGA NAKETOARespondentNORMA LISA WILSONInterested PartyHearing: 29 March 2023Appearances: C Hodgson for the ApplicantNo appearance by or for the RespondentJudgment: 26 April 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 26 April 2023 at 10:00 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarParties / Solicitors:Ms S Earl and Mr C Hodgson, Meredith Connell, Office of the Crown Solicitor, AucklandThe Respondent[1] The Commissioner of Police seeks an assets forfeiture order over $23,920 ofcash (the Cash) under s 50 of the Criminal Proceeds (Recovery) Act 2009 (the Act).Background[2] Mr Naketoa was the subject of an investigation by Police into the supply ofmethamphetamine on the North Shore of Auckland by senior patched Head Hunter,Elias Gaitau and his associates, including Mr Naketoa.[3] On 15 July 2020, Police conducted a search warrant at 46 Fairclough Road,Beach Haven, Auckland. Mr Naketoa and his partner Ms Wilson (the interested party)were present at the property. Police located and seized a number of items includingthe Cash and paraphernalia relating to the supply and possession of the controlledsubstances methamphetamine and cannabis.1[4] Mr Naketoa was charged and, on 25 March 2022, convicted of:(a) one representative charge of supplying methamphetamine (12.8grams);(b) one representative charge of offering to supply methamphetamine (twograms); and(c) one charge of conspiring to supply methamphetamine (seven grams).[5] He was sentenced to eight months' home detention.1 The reference to the Cash being seized on 12 October 2021 is incorrect.[6] In this proceeding, the Commissioner applied to the Court for restraining andcivil forfeiture orders. At the first call, Woolford J made a restraining order under s 24of the Act that the Cash is not to be disposed of, or dealt with, other than as providedin the orders; and is to be under the Official Assignee's custody and control.2The Judge adjourned the application for civil forfeiture orders, stating that at the nextcall an asset forfeiture order is liable to be made if there is no appearance by or onbehalf of Mr Naketoa and Ms Wilson, and directed his minute be sent to them.[7] The restraining order and minute were served on 10 March 2023.[8] No opposition has been filed and there was no appearance by or for Mr Naketoaor Ms Wilson at the hearing on 29 March 2023.Applicable principles[9] Section 50(1) of the Act provides that:3(1) If, on an application for an assets forfeiture order, the High Court issatisfied on the balance of probabilities that specific property istainted property, the Court must make an assets forfeiture order inrespect of that specific property.[10] Tainted property is defined in the Act:4tainted property–(a) means any property that has, wholly or in part, been –(i) acquired as a result of significant criminal activity; or(ii) directly or indirectly derived from significantcriminal activity; and(b) includes any property that has been acquired as a result of, ordirectly or indirectly derived from, more than 1 activity if atleast 1 of those activities is a significant criminal activity.2 Commissioner of Police v Naketoa HC Auckland CIV-2023-404-105, 1 March 2023 (Minute ofWoolford J).3 Criminal Proceeds (Recovery) Act 2009, s 50(1) is subject to s 51 which provides for applicationsto exclude property from an order on the basis of undue hardship but there is no such applicationhere.4 Section 5(1).[11] Significant criminal activity is defined in s 6:6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significant criminalactivity means an activity engaged in by a person that if proceededagainst as a criminal offence would amount to offending—(a) that consists of, or includes, 1 or more offences punishable bya maximum term of imprisonment of 5 years or more; or(b) from which property, proceeds, or benefits of a value of$30,000 or more have, directly or indirectly, been acquired orderived.(2) A person is undertaking an activity of the kind described in subsection(1) whether or not—(a) the person has been charged with or convicted of an offencein connection with the activity; or(b) the person has been acquitted of an offence in connection withthe activity; or(c) the person's conviction for an offence in connection with theactivity has been quashed or set aside.(3) Any expenses or outgoings used in connection with an activity of thekind described in subsection (1) must be disregarded for the purposesof calculating the value of any property, proceeds, or benefits undersubsection (1)(b).Discussion[12] Although Mr Naketoa and Ms Wilson told Police the Cash belonged to her andwas derived from savings from work and refunds from Inland Revenue, I am satisfiedon the balance of probabilities that the Cash is tainted property, being property deriveddirectly or indirectly from Mr Naketoa's supply of methamphetamine. Neither theirdeclared income nor cash withdrawals from their bank accounts could account for theCash.[13] Accordingly, an assets forfeiture order in respect of the Cash must be made.Result[14] I make an assets forfeiture order under s 50 of the Act that the $23,920 cashlocated and seized by Police during a search of 46 Fairclough Road, Beach Haven,Auckland, and interest accrued thereon, vests in the Crown absolutely and is in theOfficial Assignee's custody and control.________________________________Gault J