THE COMMISSIONER, NEW ZEALAND POLICE v PEITA [2019] NZHC 3311

THE COMMISSIONER, NEW ZEALAND POLICE v PEITA [2019] NZHC 3311 [13 December 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-165[2019] NZHC 3311UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under ss 22, 24 and 25BETWEEN THE COMMISSIONER, NEW ZEALANDPOLICEApplicantAND STEVEN TRENT PEITARespondentHearing: 9 December 2019Appearances: S B McCusker for ApplicantNo appearance for RespondentJudgment: 13 December 2019JUDGMENT OF GRICE JIntroduction[1] On 13 March 2018, the applicant made an application for an on noticerestraining order under the Criminal Proceeds (Recovery) Act 2009.[2] The Commissioner and the respondent have reached a proposed settlement.The Court's approval of this settlement is sought under s 95 of the Act.[3] This proceeding is related to Commissioner of Police v Rowland.1 A settlementmemorandum for Rowland has been filed concurrently with this memorandum.Mr Peita's position is that the Chevrolet motor vehicle which is subject to a restraining1 Commissioner of Police v Rowland CIV-2018-485-166.order in this proceeding is the property of the first respondent in that proceeding,Mr Matthew Rowland. As outlined in Mr Rowland's settlement memorandum,Mr Rowland accepts that the Chevrolet motor vehicle was under his effective controland should be forfeit as part of an agreed profit forfeiture in his name.[4] Mr Peita agrees that the only other item of property restrained in thisproceeding, the $2,780 cash which was located at his address, should be forfeitpursuant to a profit forfeiture order.[5] The settlement outlined above will be in full and final settlement of thisproceeding. Costs are to lie where they fall.BackgroundOperation Manuka[6] These proceedings arise out of 'Operation Manuka' a criminal investigationconducted by the Wellington District Covert Operation Drug Squad targeting theimportation and sale of large quantities of the class C controlled drug N-Ethylpentylone.[7] During the investigation, Mr Peita was identified as a significant memberinvolved in the N-Ethylpentylone importation and supply network involvingMr Rowland.[8] Operation Manuka terminated on 8 March 2018. Mr Peita was arrested andcharged the same day.The restraing proceedings[9] A without notice restraining order was granted by the Court in this proceedingon 7 March 2018.[10] An application for an on notice restraining order was made on 13 March 2018.The following property was sought to be restrained:(a) A 1991 Chevrolet C1500 Utility motor vehicle including ignition keys,registration plate KES455, registered in the name of Mr Peita.(b) Cash totalling $2,780 seized from a search of the respondent's addressof 3 Tyrico Way, Grenada Village, Wellington on 8 March 2018.Mr Peita's criminal proceedings[11] Mr Peita has pleaded guilty to ten charges. These include charges in relationto the importation, possession and sale of a class C controlled drug under the Misuseof Drugs Act 1975.[12] The Summary of Facts to which Mr Peita pleaded guilty to establish thatMr Peita assisted Mr Rowland with the importation of 17.3 kg of N-Ethylpentylone.Depending on the amount these drugs were sold for, this had a potential street valueof between $1,370,000 and $2,595,000.[13] On 11 October 2018, Mr Peita was sentenced to eight months home detention.Mr Peita's interest in the restrained propertyThe Chevrolet[14] On 19 April 2018, Detective Paul Brown was contacted by Mr Peita. On beingadvised that the Chevrolet had been restrained, Mr Peita advised that the Chevroletwas not his. He did not tell Detective Brown who the Chevrolet belonged to.[15] On 20 April 2018, Detective Brown again spoke to Mr Peita. Mr Peita advisedthat Mr Rowland had the keys to the vehicle. Mr Peita signed a disclaimer disclaimingany right, interest or entitlement in the Chevrolet.[16] The Chevrolet was found in a lock-up registered in the name of Mr Rowland'smother, Nicola Allen, and which was under the control of Mr Rowland. The ignitionkeys to the Chevrolet were also found at Mr Rowland's home address.[17] Mr Peita agrees that the Chevrolet was under the effective control ofMr Rowland, and should be forfeit as part of any profit forfeiture order made againstMr Rowland.[18] Mr Rowland also now accepts that the Chevrolet was under his effectivecontrol and should be forfeit pursuant to a profit forfeiture order made against him.The $2,780 cash[19] Mr Peita told Detective Brown on 20 April 2018 that it was his partner,Leah Edmond's, holiday money. Detective Brown advised Mr Peita that he hadspoken to Ms Edmonds on the night of Mr Peita's arrest who said she knew nothingof the $2,780.[20] Mr Peita made no further comment on the origin of the $2,780 but signed adisclaimer relinquishing any right or interest in the $2,780.[21] Mr Peita now acknowledges that the $2,780 is his property and should beforfeit pursuant to a profit forfeiture order.Terms of settlement[22] Orders are sought in accordance with the draft profit forefeiture order whichwas filed with this memorandum.[23] The parties now agree and I accept that:(a) Mr Peita has been involved in significant criminal activity in terms ofs 6 of the Act.(b) Mr Peita received an unlawful benefit of $1,750,000 from hissignificant criminal activity for the purposes of s 53 of the Act.(c) The maximum recoverable amount for the purpose of s 54 of the act is$1,750,000.(d) The property to be disposed of in accordance with the profit forfeitureorder is $2,780. The Chevrolet is to be forfeit as part of the profitforfeiture order made against Mr Rowland in his separate proceedings.[24] The unlawful benefit is consistent with that claimed against Mr Rowland inseparate proceedings.[25] This order is sought in full and final settlement of this proceeding. The partiesalso seek that costs are to lie where they fall. The Commissioner has advised he doesnot intend to puorsue Mr Peita for any debt which might arise from the making of thisorder.Approval of settlement[26] The Commissioner and Mr Peita seek approval of the Court of a settlementunder s 95 of the Act in the above terms.[27] In the parties' submission, the parties agree:(a) There is a substantial shortfall between the assets to be forfeit ($2,780in cash) and the profit forfeiture order of $1,750,000. However, MrPeita has no other known assets in his name, save for the Chevroletwhich is to be forfeit as part of Mr Rowland's settlement.(b) The settlement involves the forfeiture of every asset of value known tobelong to Mr Peita. In the Commissioner's submission, the publicinterest would not be served by allowing this matter to proceed tohearing, when there is no dispute over the property to be forfeited andthere is no other property which is capable of being forfeited.Orders sought by consent[28] On the basis of the evidence filed I accept:(a) The value of the benefit is $1,750,000;(b) The maximum recoverable amount for the purpose of s 54 of the Act is$1,750,000;(c) The following property is to be realised:(i) Cash totalling $2,780 seized from a search of the resondent'saddress of 3 Tyrico Way, Grenada Village, Wellington on8 March 2018.[29] Orders are made accordingly._________________Grice JSolicitors:Crown Law Office, Wellington