COMMISSIONER OF POLICE v GOOD [2017] NZHC 3145

COMMISSIONER OF POLICE v GOOD [2017] NZHC 3145 [15 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2011-404-7205[2017] NZHC 3145UNDER the Criminal Proceeds (Recovery) Act2009BETWEEN COMMISSIONER OF POLICEApplicantAND JOHNNY BE GOODRespondentHearing: 14 December 2017Appearances: M J Hammer, M R Harborow and L J Fraser for ApplicantI M Brookie for RespondentM Headifen for Interested PartyJudgment: 15 December 2017JUDGMENT OF LANG J[on application for approval of proposed settlement]This judgment was delivered by me on 15 December 2017 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In this proceeding the Commissioner of Police (the Commissioner) seeks assetforfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act).[2] The applicant, the respondent and the interested party (Ms Giordani) have nowreached agreement regarding compromise of the Commissioner's claim and seek theapproval of the Court under s 95 of the Act to the proposed settlement.Background[3] Mr Good was found guilty by a jury on 14 charges of Class C drug offending.He was subsequently sentenced to nine years imprisonment. Mr Good appealedagainst conviction, but the Supreme Court recently dismissed his appeal.1Ms Giordani was never charged with any offending relating to the activities that led toMr Good being charged.[4] The Commissioner contends that Mr Good derived substantial profits from theoffending. For that reason he applied for both profit and assets forfeiture orders.[5] Two assets are currently subject to restraining orders made in this proceeding.They are:(a) The residential property situated at 4A Purchas Road, Hauraki,Auckland. This has a current value of approximately $1.15 million. Itis subject to a mortgage in favour of the Bank of New Zealand Limitedsecuring a loan of approximately $341,223. There is therefore equityin the property amounting to approximately $809,000.(b) A men's silver ring with a circle of diamonds. This was discovered bythe police in an apartment in Takapuna when they terminated theoperation that led to Mr Good's arrest.1 R v Cameron [2017] NZSC 89.The proposed settlement[6] The proposed settlement contains the following essential ingredients:(a) the Official Assignee shall sell the property at 4A Purchas Road for itsfair market value;(b) after sale of 4A Purchas Road by the Official Assignee, he will pay:(i) the reasonable costs in effecting the sale of the property;(ii) the outstanding borrowings secured by the mortgage on theproperty;(iii) the sum of $80,000 to Mr Good's mother; and(iv) 18.75 per cent of the net sale proceeds to Ms Giordani (afteritems (i), (ii) and (iii) have been deducted);(c) assets forfeiture orders be made by consent in relation to Mr Good's62.5 per cent share of the net proceeds of sale of 4A Purchas Road, andthe silver ring;(d) assets forfeiture orders are made by consent in respect of half ofMs Giordani's 37.5 per cent share of the net proceeds of sale of 4APurchas Road;(e) the Official Assignee will give Ms Giordani the first right to purchasethe property, such right being exercisable by her in writing no later than10 April 2018. Any such sale will be on terms acceptable to the OfficialAssignee in his sole discretion, after taking into account one or moreregistered valuations and such other material as the Official Assigneeconsiders appropriate;(f) if Ms Giordani exercises her right to purchase the property, she and theOfficial Assignee may reach an agreement on how the effect ofparagraph (b)(iv) above is to be achieved but the overall net positionmust remain the same;(g) no profit forfeiture orders will be pursued by the Commissioner againsteither Mr Good or Ms Giordani; and(h) costs will lie where they fall.[7] If approved, the settlement will see the sum of approximately $592,000forfeited to the Crown by way of assets forfeiture orders. Ms Giordani will receivethe sum of approximately $137,000. Mr Good will receive no direct monetary benefitfrom the settlement himself, but a loan owing by him and Ms Giordani to Mr Good'sparents will be repaid in full from the sale proceeds.Decision[8] Section 95 of the Act provides as follows: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.[9] I am satisfied that the proposed settlement is consistent with the purposes ofthe Act because it results in a major asset owned by Mr Good being sold and the bulkof the sale proceeds forfeit to the Crown. Ms Giordani is likely to have had a claim inrelation to that property and the settlement enables her to share in the sale proceeds,albeit to a lesser extent than her current ownership interest. Mr Good will receivenothing from the sale but the debt that he and Ms Giordani owe to Mr Good's parentswill be repaid. The settlement also resolves the present proceeding in a cost effectivemanner.[10] I therefore make an order under s 95 of the Act approving the proposedsettlement.Lang JSolicitors:Crown Solicitor, Auckland