POLICE v MALCOLM [2013] NZHC 2986

POLICE v MALCOLM [2013] NZHC 2986 [12 November 2013]IN THE HIGH COURT OF NEW ZEALANDWANGANUI REGISTRYCIV 2010-483-27[2013] NZHC 2986BETWEEN THE COMMISSIONER OF POLICEApplicantAND WAYNE PUHI MALCOLMRespondentHearing: On PapersCounsel: L C Rowe for ApplicantM J Bullock for RespondentJudgment: 12 November 2013JUDGMENT OF RONALD YOUNG J(Application for profit forfeiture order)[1] The Commissioner of Police has made an application for a forfeiture order under s 55 of the Criminal Proceeds (Recovery) Act 2009. The application relates to an amount of $62,400. This is said to be the least profit from Mr Malcolm'sharvesting and sale of cannabis plants.[2] The total assets available for forfeiture are $58,686.98 in cash. And so if an order is made the difference, $3,713.02, would be a civil debt owed by Mr Malcolm to the Commissioner. Mr Malcolm originally opposed the application but has chosen not to file any evidence or submissions in opposition and now does not oppose the orders made.[3] In March 2010 following covert surveillance the police executed a search warrant at Mr Malcolm's address in Wanganui. As a result evidence wasgathered of cultivating cannabis and the intended sale of cannabis. Mr Malcolm subsequently pleaded guilty to cultivating cannabis and possession of cannabis for sale. As a result of this search $42,915.30 in cash was found in Mr Malcolm'sresidence. In addition he had $3,100 cash on his person and he had two bank accounts totalling $10,014.56.[4] There is evidence from the police who undertook an analysis of the potential profit available to Mr Malcolm from the cultivation of cannabis. That profit from the past sale of harvested plants was estimated between $62,400 and $97,500. The Crown seek a profit forfeiture order with respect to the lower amount.[5] On initial matter before I deal with the forfeiture order. An initial restraining order was made with respect to the cash identified on 25 May 2010 for a period of 12 months. There were a number of further extensions. As to the last one sought, on 9 April 2013 the order was extended for a further six months to 30 September 2013 (after the order had expired on 31 March 2013). On 18 September 2013 the police applied for a further extension of the restraining order. Regretfully that application was not referred to a Judge until 1 November 2013 by which time the six month period expiring on 30 September 2013 had passed.[6] The Crown say, however, that s 41(4) provides that where, as here, an application to extend the restraining order has been made before its date of expiration, the restraining order continues in force.[7] Section 41 (Criminal Proceeds (Recovery) Act 2009) of the Act provides as follows:41 Extending duration of restraining order(1) If a court has made a restraining order, the applicant for that order may, before the restraining order expires, apply to that court to extend its duration.(2) If an application is made under subsection (1), the court may order that the operation of the restraining order be extended for a period not exceeding 1 year.(3) The duration of a restraining order may be extended more than once under this section.(4) If, before a restraining order would otherwise expire under section 37(1), an application is made to a court under this section and the application is granted, the restraining order ceases to be in force on the date specified in the court's order.[8] It is not necessary for me to decide whether or not in the circumstances the restraining order in this case has expired. However, I express doubt as to thecorrectness of the Crown's interpretation of s 41. But the existence of a restraining order is not a necessary pre-requisite for the making of a profit forfeiture order. In this case because I propose to make a profit forfeiture order, it is not necessary for me to resolve the point. In any event, without full argument it would be unwise to do so.[9] There are four steps that a court needs to be satisfied of before a profit forfeiture order can be made. First, I must decide (pursuant to s 53) whether the Commissioner has proved on the balance of the probabilities that Mr Malcolm has unlawfully benefited from significant criminal activity during the relevant period. I am satisfied given his convictions during the relevant time that Mr Malcolm has unlawfully benefited from significant criminal activity. Mr Malcolm did not attempt to rebut this evidence nor the presumption as to the value of the benefit as stated in the application.[10] Secondly, I must determine the maximum recoverable amount. I am satisfied that the maximum recoverable amount is $62,400.[11] Thirdly, I must determine whether any property should be excluded because of undue hardship to the respondent. There is no such suggestion in this case.[12] Finally, I must decide if, on the balance of probability, the Commissioner has met the requirements of s 55. In my view this is an appropriate case for the making of a profit forfeiture order.[13] I, therefore, make a profit forfeiture order in the sum of $62,400. There is no deduction to be made in respect of any asset forfeiture order which has not been made. Accordingly, all of the current funds held by the Public Trustee on behalf of the Commissioner should be forfeited. These total $58,686.98. The remaining sum $3,713.02 should be able to be recovered as a civil debt pursuant to s 55(4) of the Act.____________________________Ronald Young JSolicitors:Armstrong Barton, Crown Solicitors, WanganuiJRT Lawyers, Wanganui