COMMISSIONER OF POLICE v MCKENZIE [2021] NZHC 1351

COMMISSIONER OF POLICE v MCKENZIE [2021] NZHC 1351 [9 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000831[2021] NZHC 1351UNDER Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND TRUDY ZELDA MCKENZIERespondentHearing: (On the papers)Judgment: 9 June 2021JUDGMENT OF VENNING JThis judgment was delivered by me on 9 June 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandBarter Law, Albany, Auckland[1] The Commissioner of Police (Commissioner) seeks a profit forfeiture order against Trudy McKenzie under s 55 of the Criminal Proceeds (Recovery) Act 2009. Ms McKenzie is represented. Counsel have agreed a settlement and seek the approval of the Court to that settlement.[2] On 16 October 2019 Ms McKenzie pleaded guilty in the Whangarei District Court to 15 charges of possession of methamphetamine for supply and one charge of unlawful possession of a pistol. She was subsequently sentenced to six months' home detention. The charges followed a police investigation in relation to the distribution of methamphetamine and cannabis within the Waipu area. Text data from cell phones attributed to Ms McKenzie identified she had purchased 148.5 grams of methamphetamine on a number of occasions. The data also showed Ms McKenzie had sold the methamphetamine from her home address 5 Braemar Lane, Waipu. When the police executed a search warrant at 5 Braemar Lane they located a quantity of methamphetamine and indicia of both use and dealing in methamphetamine. The police also located a significant amount of cannabis, including 11 plants in a "grow room" inside the house.[3] On 1 July 2020 Gordon J made an order restraining the property at 5 Braemar Lane together with related orders.[4] On 20 August 2020 Campbell J made orders varying the restraining orders to enable the sale of 5 Braemar Lane with the net proceeds of sale to be held by the Official Assignee.[5] The Commissioner and Ms McKenzie have now agreed to settle the Commissioner's application for forfeiture of assets and seek the approval of the Court.[6] The proposed settlement is that:(a) a profit forfeiture order be made by consent stipulating the value of the benefit as $80,966.16; and(b) the maximum recoverable amount is that amount; and(c) the property is to be disposed of in accordance with s 83(1) of the Act as the restrained sale proceeds.[7] The parties also agree that the remaining balance of the restrained sale proceeds presently calculated at $320,992.85 be released from restraint and paid to Ms McKenzie. The settlement will be in full and final settlement of all claims. Ms McKenzie will abandon all claims to any of the property to be forfeited. Costs are to lie where they fall.[8] The Court's approval to the settlement is required under s 95 of the Act:95 High Court must approve settlement between Commissioner and other party(1) The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approves it.(3) The High Court must approve the settlement if it is satisfied that it is consistent with—(a) the purposes of this Act; and(b) the overall interests of justice.[9] Having reviewed the file I am satisfied the settlement is consistent with the purposes of the Act and the overall interests of justice.[10] I have come to that conclusion for the following reasons.(a) The settlement will provide certainty to the Commissioner and Ms McKenzie. It will also save Court time and cost to the parties.(b) On the evidence the Commissioner has a good case to show Ms McKenzie has unlawfully benefited from significant criminal activity so as to support a profit forfeiture order given her guilty pleas, theintercepted text data, and the financial analysis of Ms McKenzie's accounts which shows a lack of any legitimate sources of income.(c) Against that there is an argument for Ms McKenzie that a portion at least of the methamphetamine she purchased was not on-sold by her, but smoked by her and other occupants of 5 Braemar Lane.(d) Ms McKenzie acknowledges that there are weaknesses in her case which could jeopardise her chance of successfully opposing the orders given the text messages, and the indicia of dealing located at her property, including the prepacked bags of methamphetamine.[11] I take into account the evidence on the file and the fact Ms McKenzie is represented by experienced counsel. I confirm the Court's approval and make the following orders to give effect to the settlement:(a) A profit forfeiture order against Trudy McKenzie, under s 55 of the Act:(i) The value of the benefit determined in accordance with s 53 of the Act is $80,966.16.(ii) The maximum recoverable amount is $80,966.16.(iii) The following property is to be disposed of in accordance with s 83(1) of the Act:$80,966.16 of the proceeds from the sale of 5 Braemar Lane, Waipu, Whangarei (5 Braemar Lane).(b) Further orders under s 34 of the Act: the balance of the proceeds from the sale of 5 Braemar Lane less the $80,966.16 referred to in (a)(iii) is released from the restraining orders made by Gordon J on 1 July 2020, and the Official Assignee is directed to pay this sum (approximately$320,992.85) into a bank account nominated by Trudy McKenzie (Ms McKenzie).(c) Costs: Costs are to lie where they fall in relation to all matters between the Commissioner and Ms McKenzie.[12] In addition, the Court notes the further terms of the agreed settlement:(a) Ms McKenzie abandons all claims she may have, under the Act or otherwise, to any of the property to be forfeited; and(b) The settlement is in full and final settlement of the current proceedings brought by the Commissioner against Ms McKenzie under the Act.__________________________ Venning J