THE COMMISSIONER, THE NEW ZEALAND POLICE v TOBIN & ORS [2018] NZHC 921

THE COMMISSIONER, THE NEW ZEALAND POLICE v TOBIN & ORS [2018] NZHC 921 [3 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2013-485-3149[2018] NZHC 921IN THE MATTER of an application pursuant to the CriminalProceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER, THENEW ZEALAND POLICEApplicantAND JOSEPH THOMAS TOBINFirst RespondentMASON JOSEPH TOBINSecond RespondentJOANNE TOBINFirst Interested PartyWESTPAC NEW ZEALAND LIMITEDSecond Interested PartyAMP HOME LOANS LIMITEDThird Interested PartyPORIRUA CITY COUNCILFourth Interested PartyHearing: On the papersCounsel: G J Burston and E M Light for ApplicantS Hewson for First RespondentE A Hall for Second RespondentJudgment: 3 May 2018Reissued: 29 May 2018JUDGMENT OF CHURCHMAN JIntroduction[1] On 30 July 2013, the Court issued a without notice restraining order in respectof property that was detailed in that order. That property included residential propertylocated at 122 Conclusion Street, Ascot Park, Porirua described under certificate oftitle WN18C/1122; a boat shed property located at 21 South Beach, Titahi Bay, heldon land leased from the Porirua City Council bearing number 74 above its entranceand being referred to as BOA0125 in Porirua City Council records; a 2009 HoldenCommodore SV6 Sedan motor vehicle registration FDM242; and the sum of $50,000held by the New Zealand and Solvency & Trustee Service Proceeds of Crime Account(Official Assignee's trust account).[2] The without notice restraining order also covered other property which the firstrespondent had an interest in but this other property is not the subject of this decisionas the second respondent has an interest in it and issues as between the Commissionerand the second respondent in relation to the property have not yet been resolved.[3] The first respondent was convicted and sentenced in the Wellington DistrictCourt on 16 March 2016 to five and a half years' imprisonment in relation to a numberof drug related charges.[4] The applicant and first respondent have come to an agreement that therestraining order and profit forfeiture applications filed by the applicant under theCriminal Proceeds (Recovery) Act will be resolved by the sum of $50,000 held by theNew Zealand Insolvency & Trustee Service in their proceeds of crime account(Official Assignee Trust Account) being forfeited to the Crown.[5] Section 95 of the Criminal Proceeds (Recovery) Act 2009 requires that theHigh Court approve any settlement between the Commissioner and any other party.[6] The Court must be satisfied that the proposed settlement is consistent with thepurposes of the Act and the overall interests of justice.[7] The applicant submits that the proposed settlement, which results in theforfeiture of property that represents an unlawful benefit that the first respondent hasreceived from significant criminal activity, is consistent with the purposes of the Actand the overall interest of justice.[8] I am satisfied that the profit forfeiture order sought is consistent with therequirements of s 95. I therefore confirm the order in terms of the joint memorandumand the draft orders filed with the consent memorandum of 22 March 2018.[9] The overall effect of this order is that the $50,000 is forfeit to the Crown, theproperties at 122 Conclusion Street, Ascot Park, Porirua and the boat shed located at21 South Beach, Titahi Bay referred to as BOA0125 in the Porirua City Councilrecords, together with the 2009 Holden Commodore SV6 Sedan motor vehicleregistration FDM242 are released from the restraining order which is variedaccordingly.Churchman JSolicitors:Crown Solicitor's Office, Wellington for ApplicantOrd Legal, Wellington for First Respondent