THE COMMISSIONER OF POLICE v SYDNEY PHILLIP THOMPSON [2013] NZHC 2926

THE COMMISSIONER OF POLICE v SYDNEY PHILLIP THOMPSON [2013] NZHC 2926 [6 November 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-004407[2013] NZHC 2926UNDER the Criminal Proceeds (Recovery) Act2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND SYDNEY PHILLIP THOMPSONRespondentHearing: 6 November 2013Appearances: T Refoy-Butler for the ApplicantNo appearance for the RespondentC Peter for Mr TautalanoaJudgment: 6 November 2013ORAL JUDGMENT OF GILBERT J[1] The Commissioner applies for a profit forfeiture order pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009. Mr Thompson has taken no steps to oppose the application.[2] The Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that Mr Thompson has unlawfully benefitted from significant criminal activity within the relevant period and has interests in property.[3] Mr Thompson was arrested on 11 April 2013 and is currently facing 17 charges, including 10 of obtaining over $400,000 by deception in breach of s 240(1)(a) of the Crimes Act 1961. These offences are punishable by imprisonment for a term not exceeding seven years.[4] The evidence provided on behalf of the Commissioner, which has not been contradicted, is that Mr Thompson and another person fraudulently obtained monies from Work and Income New Zealand (WINZ) over an extended period. The scheme involved Mr Thompson registering with WINZ as a pre-approved service provider of dental and optometry treatment under the trading name Vichson Dentists and Optometry. Mr Thompson is not a qualified dentist or optometrist and does not have a dental surgery or optometry clinic. He then solicited friends and associates to apply for Special Needs Grants and allowances to pay for such services. Thepayments were made into Mr Thompson's bank account and then split with theclaimants. A total of $374,315.64 was paid by WINZ to this account in respect of services claimed to have been provided to 280 beneficiaries.[5] WINZ also approved Mr Thompson as a supplier of furniture and whiteware under the trading name Thompson and Thompson Rentals. He similarly defrauded WINZ using this business. A total of $32,498.73 was paid by WINZ to the Thompson & Thompson bank account in respect of goods claimed to have been supplied to beneficiaries.[6] I am satisfied on the basis of the evidence that Mr Thompson has benefitted from significant criminal activity as defined in s 6 of the Act. The value of thebenefit is presumed to be the value stated in the Commissioner's application,1 being the sum of $406,814.37. The presumption may be rebutted by Mr Thompson on the balance of probabilities but he has chosen not to attempt to discharge that onus.[7] Mr Thompson claims to be entitled to a one half share in the equity in the property at 1/281 Shirley Road, Papatoetoe, Auckland, described in the certificate of title NZ128B/17 being Flat 1 DP 199721 on Lot 2 DP 44805. This property is registered in the name of Mr Tautalanoa who purchased the property from Mr Thompson in 2007 on the basis that he would take responsibility for themortgage and pay for Mr Thompson's ex wife's share of the property. I am satisfiedthat Mr Thompson has an interest in this property. The two requirements set out in s 55(1) of the Act having been satisfied, I am obliged to make a profit forfeiture order.[8] I therefore make a profit forfeiture order in terms of s 55 of the Act. The value of the benefit determined in accordance with s 53 is the sum of $406,814.37. The maximum recoverable amount determined in accordance with s 54 is the sum of $406,814.37. The parties agree that the value of Mr Thompson's equity in theproperty is $59,396. This is the property to be disposed of.[9] I record that Mr Tautalanoa consents to the terms of this profit forfeiture order and has consented to acquiring Mr Thompson's interest in the property bypaying the sum of $59,396 to the Official Assignee.[10] I reserve leave to the parties and to Mr Tautalanoa to apply for further directions should that be required to implement the terms of this order.___________________________M A Gilbert J1 s 53(1) of the Act.