THE COMMISSIONER OF POLICE v HAMMOND [2020] NZHC 3353

THE COMMISSIONER OF POLICE v HAMMOND [2020] NZHC 3353 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2016-454-053[2020] NZHC 3353IN THE MATTER OF an application pursuant to the CriminalProceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND MIKAL JAMES HAMMONDRespondentHearing: On the papersJudgment: 16 December 2020JUDGMENT OF GRICE J(Approval of settlement pursuant to s 95 Criminal Proceeds (Recovery) Act2009)[1] The first respondent and the Commissioner have reached agreement andpropose a settlement of an application by the Commissioner for forfeiture of an amountof cash belonging to the respondent, and two motor vehicles, pursuant to the forfeitureprovisions of the Criminal Proceeds (Recovery) Act 2009 (the Act).Background[2] The background to the offending is set out in the joint memorandum asfollows:13. Mikal James Hammond has a lengthy criminal history for drug useand dealing drugs. He also has legitimate interests in selling Kauristumps.1 Joint memorandum of counsel seeking approval of settlement at [3]–[20].Cash4. On 16 August 2015, a female by the name of Leah Turner checkedinto the Langham Hotel, Grafton, Auckland. Ms Turner is known toMr Hammond and has been referred to as his partner.5. Leah Turner occupied room 955 and paid for parking in relation to aBMW motor vehicle registration JCT221, registered at that time toMichael Louis Southee. This BMW is also subject to the forfeitureapplication.6. On 17 August 2015 Leah Turner checked out of the hotel and left thepremises. A short time after this [sic] hotel staff tending the roomlocated a black rubbish bag in a bed side table, within which was alarge sum of cash and Police were called. Police seized the cash andit later confirmed it to total $79,840.7. Room 449 was also booked to the BMW vehicle JCT221. The roomwas booked and utilised by a Mr James Butler.8. A search was conducted of the room, during which a total of 47 gramsof methamphetamine was located.9. Also located within the room was a packet of prescription medicinein the name Mikal J Hammond and a Notice of Bail dated 14 August2015 in the name Mikal James Hammond.10. Constable Daniel Griffiths of Auckland City Police conductedenquiries into the ownership of the cash located. When he spoke toTurner, she denied the cash was hers and informed Constable Griffithsthat the cash belonged to her partner, the respondent.11. Constable Griffiths has not been able to identify any other person whomay have ownership over the cash located, nor has any other personmade any claim on the cash. No criminal proceedings were laid as aresult of what was located at the Langham Hotel.Vehicles12. On 13 April 2016, Palmerston North CIB executed a search warrantunder the Search and Surveillance Act at [the Totara Road property].13. During the course of the search of a bedroom occupied by therespondent, a number of notable items were found including:a. Approximately 1.28 kg of a substance identified as theClass B controlled drug MDMA;b. Approximately 250 grams of the Class C controlled drugcannabis;c. $398,700 cash in New Zealand currency;d. A .22 calibre pistol, with [a] silencer;e. Ammunition for the .22 calibre pistol; andf. A 750 millilitre PowerAde drink bottle, approximately 1/3 fullof a liquid, believed to be the Class C controlled drug GBL.14. At the time of this alleged offending the respondent (Hammond) wasfacing other charges detailed in the earlier offending, and was subjectto 24 hour curfew.15. As a result of the investigation, the Mikal Hammond was charged andpleaded guilty to the following criminal charges:a. Possession of a Class B controlled drug, namely MDMA(Ecstasy), for the purposes of supply;b. Possession of a Class A controlled drug, namely,methamphetamine;c. Possession of Cannabis Oil;d. Possession of a Class B controlled rug, namely GBL, for thepurposes of supply;e. Possession of a Class B controlled drug, namely cannabis, forthe purposes of supply;f. Unlawful possession of a pistol; andg. Unlawful possession of ammunition.16. As a result of the offending identified the respondent was convictedon 25 January 2018 and sentenced to four years, and nine monthsimprisonment.17. At the time of arrest, the respondent had a number of keys in hispossession, as well as two access passes. These remained in Policepossession following the search warrants.18. On 6 August 2016, Detective Scott Algie uplifted the access passesfrom property linked to the respondent (Hammond) following hisarrest in April 2015. This exhibit contained two swipe security cardsand was taken to [Tim's Storage Lockups], Feilding for comparisonand testing. Both swipe cards opened the access gates to the location.On 10 August 2016 these were identified as being the keys for theBMW (JCT221) and Holden vehicles and transferred into thepossession of the Official Assignee by Detective Algie which werelocated at [Tim's Storage Lockups]. The vehicles are in poorcondition.19. No key was present, but one was found in the respondent's(Hammond) property seized on 13 April 2016.20. There is no doubt that the respondent had engaged in "significantcriminal activity".[3] On 12 August 2019 orders were made vesting in the Crown absolutely (to beplaced under the official assignee's control and custody) the following:(a) Cash to the value of $398,700.(b) Casino chips to the value of $727.50.(c) A Phantom 3 Professional drone.(d) Cash to the value of $3,395.(e) Casino chips to the value of $600.[4] These items were forfeited without opposition having been found in the courseof various searches, including of the applicant's residence and a motor vehicle.[5] The proposed settlement contemplates that cash to the value of $59,840, whichwas seized on 17 August 2015 plus accrued interest, will vest in the Commissionerabsolutely and under the official assignees' custody and control. A BMW (JCT221)and a 2004 Holden Commodore seized by the police from Tim's Storage Lockups inFeilding, in storage units under the control of the respondent on 4 August 2016 andcash to the value of $20,000 seized on 17 August 2015 will be returned to therespondent.[6] Forfeiture is sought for cash in the amount of $59,840. The Commissioner isof the view that the cash is the tainted property or that the respondent has unlawfullybenefited from criminal activity to at least that amount.[7] The Commissioner is also aware that the respondent has outstanding andlegitimate debts, in particular, to his parents. The settlement recognises the intentionis that those debts be met out of the cash to be returned to the respondent.The law[8] 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.[9] In Commissioner of Police v Know-All Group Ltd,2 Brewer J observed:[11] The approval by this Court of a proposed settlement is not a stampingexercise. Parliament has entrusted the Court with a supervising jurisdictionaimed at ensuring that settlements are consistent with parliament's intent inenacting the statute.[10] The purpose of the Act is set out in section 3:3 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 derivedincome.(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 withcrime or significant criminal activity to continue or expandcriminal enterprise; and(d) deal with matters associated with foreign restraining ordersand foreign forfeiture orders that arise in New Zealand.2 Commissioner of Police v Know-All Group Ltd HC Auckland CIV-2010-404-403,7 February 2011.[11] The parties submit that the settlement reached between them is consistent withthe purposes of the Act and the overall interests of justice.[12] The parties also point out that dealing with the forfeiture by consent will savetime and costs, as the settlement provides them with certainty as to the outcome againstthe inherent litigation risks. Settlement means that a reasonably substantial amount ofcash is forfeited to the Crown while recognising the respondent's claims and third-party debts.[13] The parties have agreed costs lie as they fall.[14] I am satisfied that the settlement is consistent with the purposes of the Act andthe overall interests of justice in terms of s 95(3). Accordingly, I approve thesettlement in terms of the above and as set out in the draft order filed.[15] Costs are to lie as they fall._____________________Grice JSolicitors:BVA The Practice for the applicant.