THE COMMISSIONER OF POLICE v SHARMA & ORS [2016] NZHC 1590

THE COMMISSIONER OF POLICE v SHARMA & ORS [2016] NZHC 1590 [13 July 2016]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV-2016-470-0039[2016] NZHC 1590IN THE MATTER of an application for a restraining orderpursuant to ss 25(1) and (2)(a) of theCriminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND DEEPAK SHARMASecond RespondentAND SHINA SHARMASecond RespondentAND UMA SHARMAThird RespondentTelephoneConference:12 July 2016Appearances: R Jenson for the ApplicantP T Attwood for the First RespondentW T Nabney Litigation Guardian for the Second RespondentNo appearance for the Third RespondentDate: 13 July 2016JUDGMENT OF THOMAS JThis judgment was delivered by me on 13 July 2016 at 4 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors/Counsel:Hollister-Jones Lellman, Tauranga.P T Attwood, Tauranga.W T Nabney, Tauranga.[1] The Commissioner of Police, having obtained restraining orders in respect of certain assets, now seeks forfeiture of them pursuant to the Criminal Proceeds (Recovery) Act 2009 (the Act).[2] The first respondent had filed a pro forma opposition to the application. That opposition has since been withdrawn and the first respondent no longer offers any opposition and consents to forfeiture.[3] The second respondent, through her litigation guardian, does not oppose a profit forfeiture order being made.[4] The third respondent has been served with the application. The Court has received a memorandum from Mr Rickard-Simms, barrister and solicitor, which records his meeting with the third respondent wherein he provided some initial advice on a pro-bono basis. He has since received no further or formal instructions.[5] By a minute dated 24 May 2016 his Honour Justice Muir directed that any affidavits in opposition were to be filed and served by 5 July 2016. No notice of opposition on behalf of the third respondent or affidavits in support have been filed or served and the third respondent did not participate at the telephone conference convened today.Background[6] The evidence in this matter comes from an affidavit sworn on 8 March 2016 by Detective Mark Watt.[7] The first respondent was charged with six representative counts of dishonestly using a document. He has pleaded guilty to five of the six charges. The charges in the criminal proceedings relate to behaviour of the first respondent when employed by the complainant. The first respondent was a supervisor working for the complainant and as such recruited other workers for the company. The first respondent submitted false time sheets for a number of workers who had left New Zealand some years prior. The time sheets were submitted to the company for wagespayments and the wages were paid into bank accounts operated and/or used by the first respondent.[8] The applicant claims the amount of $436,005.51 as the benefit from significant criminal activity obtained by the first respondent. The forfeiture sought relates to the sum of $109,275.44 plus interest, held in a specified ANZ bank account in the name of the second respondent, the daughter of the first respondent.[9] The first respondent has requested a disputed facts hearing in the District Court to focus on the issue of the quantum of funds fraudulently obtained. Notwithstanding that, however, as noted, the first respondent consents to the forfeiture orders sought by the applicant.Analysis[10] I am satisfied on the balance of probabilities that the property identified in the application is tainted property, the first respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity, and he has an interest in the property.[11] For the purpose of s 53 of the Act the value of that benefit is as stated in the application, that is, $436,005.51.[12] The maximum recoverable amount determined in accordance with s 54 of the Act is the same sum.[13] Given those conclusions, pursuant to s 55 of the Act, I must make a profit forfeiture order.Reparation[14] Because there is to be a disputed facts hearing in the District Court, sentencing on the criminal charges to which the first respondent has pleaded guilty has not yet taken place. There is an issue as to potential reparation to the complainant. The applicant had made enquiries of the complainant prior to theapplication and was informed that the complainant would not personally pursue any freezing of the bank account in the name of the second respondent and would not be pursuing reparation when sentencing of the first respondent takes place.[15] The applicant accepts the need to appraise the complainant fully of the circumstances of the application and the order. Any application of money resulting from the profit forfeiture order is paid in accordance with the provisions of s 83 of the Act, with the third preference being any reparation. The applicant is to advise the complainant of all the circumstances so that the complainant can fully consider its position for the purposes of sentencing.Result[16] For the reasons given, the application for profit forfeiture is granted and the order is made in the terms sought._______________________Thomas J