COMMISSIONER OF POLICE v HOPKINS [2023] NZHC 3506

COMMISSIONER OF POLICE v HOPKINS [2023] NZHC 3506 [5 December 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2020-419-000316[2023] NZHC 3506UNDER Sections 22 and 25 of the Criminal Proceeds(Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND TRAVIS MILES HOPKINSRespondentMELISSA KATHRYN LEVETFirst Interested PartyNICOLE LOUISE LEVETSecond Interested PartyANDREW SCHOUTENThird Interested PartyHearing: 29 November 2023Appearances: R Guthrie for the ApplicantT Hopkins self-representedS McKenna for the First Interested PartyJudgment: 5 December 2023JUDGMENT OF WALKER JThis judgment was delivered by me on 05 December 2023 at 10 amPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors:Hamilton Legal, Crown Solicitor, HamiltonMcKenna King Dempster Ltd, Hamilton[1] On 24 February 2021, Muir J made restraining orders under the CriminalProceeds (Recovery) Act 2009 (the Act). Those orders were extended on multipleoccasions and currently expire on 23 February 2024.[2] The Commissioner, respondent and first interested party (hereafter parties)have agreed between themselves to settle the question of profit forfeiture. They jointlyinvite the Court to approve the settlement under s 95 of the Act.[3] The interested parties have been served with proceedings. Only the firstinterested party, Melissa Levet, has taken an active role in the proceedings and thesettlement.Background[4] The restraining orders were sought on the grounds that Travis Hopkinsbenefitted from significant criminal activity by being involved in the possession andsupply of methamphetamine and cannabis. On 12 April 2019, Police executed a searchwarrant at an address on Heatherington Road following which Mr Hopkins wasarrested and charged with possession of cannabis for supply, possession ofmethamphetamine for supply, supplying methamphetamine and methamphetaminerelated utensils and unlawfully possessing ammunition. Following the entry of guiltypleas on 19 November 2019, Mr Hopkins was sentenced in the Hamilton District Courtto six years and 10 months' imprisonment.Settlement for approval[5] The proposed settlement, which will bind the parties in the event this Courtapproves it is that:(a) Mr Hopkins accepts that he has unlawfully benefitted from significantcriminal activity, namely the supply and possession for supply ofmethamphetamine and cannabis.(b) Within the relevant period of criminal activity, the value of thatunlawful benefit was $90,910.(c) The parties agree that the maximum recoverable amount is $72,560.This sum takes into account a sum previously forfeited at sentencing.(d) Mr Hopkins and/or Ms Melissa Levet will pay to the Commissioner$65,000 (Settlement sum) in full and final settlement with no residualdebt owing by Mr Hopkins in respect of the maximum recoverableamount of $72,560.(e) Funds currently restrained in stipulated BNZ bank accounts in the nameof Travis Miles Hopkins (comprising $31,350.79 along with anyinterest accrued) are to be forfeited by consent in application of thepayment of the Settlement sum.(f) The amount of $1,949 held in the Police trust account pursuant to MrHopkins' arrest (and not forfeited at sentencing) is to be forfeited byconsent in application of payment of the Settlement sum.(g) The balance of the Settlement sum of approximately $31,700.21 is tobe paid to the Commissioner by Mr Hopkins and/or Ms Melissa Levetin full and final satisfaction of the Settlement sum.(h) All other property, namely the property at 746 Heatherington Road tobe released from restraint upon full and final satisfaction of theSettlement sum.(i) Each party will bear their own costs.Approval of settlements under the Act[6] Section 95 of the Act provides:95 High Court must approve settlement betweenCommissioner and other 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.[7] By this section, Parliament has expressly empowered the Commissioner toenter into settlements as to the forfeiture of property under the Act and it has entrustedthe High Court with a supervisory jurisdiction to approve settlements when satisfiedthey are consistent with the purposes of the Act and the overall interests of justice.1[8] The Act therefore establishes a regime for forfeiture of property that has beenderived directly or indirectly from significant criminal activity or which represents thevalue of a person's unlawfully derived income.2[9] Further purposes include those of eliminating opportunities to profit fromundertaking or being associated with significant criminal activity, and deterringsignificant criminal activity.3Decision[10] The Court must have regard to the overall interests of justice which reflects thestrong public interest in litigation under the Act being brought to a prompt conclusion.This in turn reflects the likely costs and risks inherent in the determination of acontested application.4 It is desirable that proceedings under the Act be settled oneconomic and pragmatic grounds reflective of common sense compromise.5[11] I am satisfied that approving this settlement so that it becomes binding isconsistent with the purposes of the Act and the overall interests of justice. The amountto the paid in settlement represents a significant portion of the value of Mr Hopkins'1 Commissioner of Police v No-All Group Limited HC Auckland CIV-2010-404-403, 7 November2011 at [11]2 Criminal Proceeds (Recovery) Act 2009, s 3(1).3 Section 3(2).4 Commissioner of Police v Cotton [2017] NZHC 21 at [7].5 Commissioner of Police v Douglas [2015] NZHC 1293 at [6].unlawfully derived income as identified by the agreed maximum recoverable amount.It avoids the need for the Official Assignee to incur costs and time to take steps inselling the property at Heatherington Road. There will be significant costs of litigationfor both parties if the matter proceeds to a substantive hearing. The estimated amountto be forfeited is significant in terms of its proportion to the value of unlawfullyderived income and so will operate as a deterrent both to Mr Hopkins and others wholearn of the consequences of the application of the legislation.[12] The settlement is approved accordingly.Result[13] I make the following orders, so as to give effect to the settlement:(a) The respondent and/or the first interested party will pay to theCommissioner $65,000 (Settlement sum) in full and final settlementwith no residual debt owing by the respondent.(b) Funds currently restrained in the BNZ bank accounts in the name ofTravis Miles Hopkins (comprising $31,350.79 along with any interestaccrued) are to be forfeited by consent in application of the payment ofthe Settlement sum.(c) The amount of $1,949 held in the Police trust account is to be forfeitedby consent in application of payment of the Settlement sum.(d) The balance of the Settlement sum of approximately $31,700.21 is tobe paid to the Commissioner by the respondent and/or first interestedparty in full and final satisfaction of the Settlement sum.(e) All other property, namely the property at 746 Heatherington Road, tobe released from restraint upon payment in full of the Settlement sum.66 All land comprised and described in the following record of title unique identifiers: SA1747/94,South Auckland Land Registration District (section 44 block X Rangiriri Survey District) being5,269 square metres more or less; SA1D/1242, South Auckland Land Registration District (Part(f) Each party will bear their own costs.............................................................Walker JSection 42 Block X Rangiriri Survey District) being 2572 square metres more or less; andSA1D/1243, South Auckland Land Registration District (Part Section 42 Block X RangiririSurvey District) being 807 square metres more or less.