COP v EDWARDS [2023] NZHC 45

COP v EDWARDS [2023] NZHC 45 [31 January 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2019-441-90[2023] NZHC 45UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER of an application made under ss 43, 44 and52 of the Criminal Proceeds (Recovery) Act2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND MATIU TYGAR MARAKI EDWARDSRespondentAND SHARNITA JADE HARMERInterested PartyHearing: On the PapersCounsel: M Mitchell for ApplicantM J Phelps for Respondent and Interested PartyJudgment: 31 January 2023JUDGMENT OF ISAC J[Approving settlement of proceeding]Introduction[1] The parties have filed a joint memorandum dated 27 January 2023 in whichthey seek the Court's approval to proceed with a proposed settlement. The Court'sapproval is necessary because, pursuant to s 95(2) of the Criminal Proceeds(Recovery) Act 2009, the settlement will not bind the parties "unless the High Courtapproves it".Background[2] The proceeding has its genesis in an investigation known as Operation Lariatthat targeted the activities of an organised criminal group involved in the supply ofmethamphetamine in the Hawkes Bay area. The operation terminated in September2017 with the arrest of a number of people. The respondent, Mr Edwards, was one ofthem. On 16 November 2018 he pleaded guilty to a representative charge of possessionof methamphetamine for supply, and on 10 July 2020 he was sentenced to 12 months'home detention and 400 hours community work.[3] On 16 October 2018 the Commissioner applied for forfeiture orders in relationto the following property:(a) a 2014 Holden Commodore VF including ignition keys, registrationHQG237, and with an unconfirmed registration in the name ofMarty Akuhata but under the effective control of the respondent, seizedfrom 44 Dover Road, Flaxmere, Hastings on 14 September 2017;(b) cash totalling $1,780.50, seized from the respondent on14 September 2017;(c) cash totalling $9,245.00, seized from 44 Dover Road, Flaxmere,Hastings on 14 September 2017; and(d) cash totalling $3,124.10, seized from the Holden CommodoreHQG237, at 44 Dover Road, Flaxmere, Hastings on14 September 2017.[4] On 28 August 2019, Churchman J granted an asset forfeiture order in relationto this property. It was sold and resulted in a net sum of $28,564.60, which vested inthe Crown absolute. A profit forfeiture order was not sought at the time becauseMr Edward's criminal proceeding was still in train. In late 2019, the Commissioneridentified for the first time that Mr Edwards had an interest in further property, namely:(a) a 2019 Isuzu D-Max Utility including ignition keys, registration MDY114,and registered in the name of Sharnita Jade Harmer but under the effectivecontrol of Mr Edwards;(b) a 1959 Ford Fairlane Galaxie including ignition keys, vehicleidentification number 7AT06G31X19708422, and registered inMr Edward's name; and(c) the personalised number plate, 'ARRAHH'.[5] This further property became the focus of an application by the Commissioner,the focus of this judgment, for a profit forfeiture order.Proposed settlement[6] On 10 June 2022, the Commissioner brought an application for a profitforfeiture order in these terms:(a) the value of the benefit determined in accordance with section 53of the Act is, as the case requires,—(i) $130,000 (or, in accordance with section 53(1)(b) of theAct, another value stated in any amendment(s) to thisapplication); or(ii) another value the respondent proves in accordance withsection 53(2) of the Act; and(b) the maximum recoverable amount is $101,435.40; [7] The application then identified the three items of property noted at [4] above.[8] Although the forfeiture application was initially opposed, the parties haveagreed that assets and profit forfeiture orders totalling $49,500 should be made againstMr Edwards. In doing so, counsel note that Mr Edwards pleaded guilty to thepossession of 336 grams (or 12 ounces) of methamphetamine for supply. The profitforfeiture application alleged a profit figure of no less than $130,000.00. However,this was based on the sentencing notes which recorded an erroneous figure of364 grams of methamphetamine possessed for supply. On review, counsel submit theprofit figure ought to be $120,000.00, reduced to $91,435.40, to reflect propertypreviously forfeited to the value of $28,564.60.[9] In support of the proposed settlement, the parties submit:(a) the proposed settlement will carry significant deterrent value in that itrepresents the loss of all proceeds of the offending known to be in therespondent's possession;(b) in not pursuing the profit forfeiture order, the Commissioner isreleasing the respondent from a potential liability with respect to afurther $41,935.40. Such liability is uncertain, as it is naturallycontingent on his actually coming into possession of assets to that valueon some future date;(c) considerations of public resource saving and certainty of outcome forthe Commissioner are submitted to be factors in favour of thesettlement proposal;(d) approval of the proposed settlement would accordingly be consistentwith the purposes of the Act and the overall interests of justice; and(e) the Interested Party has not taken any steps in relation to theseproceedings. Nonetheless she has been informed of the intendedsettlement, and confirmed that she does not object to what is proposedor otherwise wish to participate in this matter.Decision[10] Section 95 of the Criminal Proceeds (Recovery) Act 2009 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.[11] The primary purpose of the Act is to establish a regime for the forfeiture ofproperty that has either been derived directly or indirectly from significant criminalactivity or that represents the value of a person's unlawfully derived income.1[12] I am satisfied the proposed settlement strikes an appropriate balance betweenachieving the primary purpose of the Act and the need for all parties to achievecertainty of outcome and avoid unnecessary litigation cost and risk. I thereforeapprove the proposed settlement and make orders by consent as sought in terms of thedraft forfeiture order filed with counsel's joint memorandum.[13] I direct that costs are to lie where they fall, unless either party wishes to beheard on that matter. The settlement will also be in full and final settlement of thisproceeding.Isac JSolicitors:Elvidge & Partners, Napier for Applicant1 Section 3(1)(a) and (b).