THE COMMISSIONER OF POLICE v MOSES [2020] NZHC 3366

THE COMMISSIONER OF POLICE v MOSES [2020] NZHC 3366 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECIV 2020-416-11[2020] NZHC 3366UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under ss 43, 44 and 49 of theCriminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF POLICEApplicantAND VALENTINE ATIRIANA MOSESRespondentOn the papersJudgment: 16 December 2020JUDGMENT OF MALLON J[1] The Commissioner of Police applies for a forfeiture order. The order is soughtin respect of $10,530 cash seized from the respondent's address on 31 January 2018.[2] The respondent was served with the application and directed to file and serveany notice of opposition within a two week timeframe on the understanding that if shechose not to do so, the application could be determined on the papers. That timeframehas expired, no notice of opposition has been filed, and the respondent has nototherwise indicated any intention to participate in the proceeding.[3] I am satisfied that the application can be determined on the papers.[4] The application arises out of a police operation targeting methamphetaminedealing in Gisborne during 2017 and early 2018. The investigation terminated in twophases on 23 and 31 January 2018 with the execution of search warrants at variousaddresses. The respondent was arrested on 31 January 2018. At this time, the Policelocated $10,280 cash hidden in a guitar case, and 10.8 g of methamphetamine in herhandbag, together with an additional $250 cash.[5] The respondent subsequently pleaded guilty to a representative charge ofpossession of methamphetamine for the purposes of supply. She is presently servinga sentence of seven years, five months' imprisonment.[6] An assets of forfeiture order may be made if the High Court is satisfied on thebalance of probabilities that specific property is tainted property.1 Tainted propertymeans any property that has been acquired as a result of, or derived from, significantcriminal activity.2 Significant criminal activity means an activity that, if charged as acriminal offence, would be punishable by a term of at least five years' imprisonment.3[7] The respondent's conviction for possession of methamphetamine for supplyconstitutes significant criminal activity. The evidence is that the respondent hadlegitimate annual income averaging only $17,988.03 for the six year preceding herarrest. It has not been contested that the respondent was generating significant incomefrom methamphetamine dealing, and no alternative legitimate explanation has beenproffered for the presence of the cash, which was located at the address linked to themethamphetamine dealing.[8] I am therefore satisfied that it is more likely than not that the cash comprisesthe proceeds of methamphetamine dealing.[9] Accordingly, I make an order that the cash totalling $10,530 seized from therespondent's address on 31 January 2018 vests in the Crown absolutely and is to be inthe Official Assignee's custody and control.Mallon J1 Criminal Proceeds(Recovery) Act 2009, s 50(1).2 Section 5.3 Section 6.