THE COMMISSIONER, THE NEW ZEALAND POLICE v SULUSI [2019] NZHC 107

THE COMMISSIONER, THE NEW ZEALAND POLICE v SULUSI [2019] NZHC 107 [8 February 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2016-441-84[2019] NZHC 107UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under section 43, 44, 52 & 55BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND LEATITLA LUCKIE SULUSIFirst RespondentTRIESTE MARTIN ROPIHASecond RespondentITUFA SULUSIFirst Interested PartyALEYSHA KAYE STRACHAN neeWICKCLIFFESecond Interested PartyTAMA RANGINUI HOHEPA HAWKINSThird Interested PartyJOSEPH DAVID ALEXI BOWLESFourth Interested PartyAARON JOHN MAIRFifth Interested PartyHearing: On the papersCounsel: F E Cleary for ApplicantE R Fairbrother QC for First RespondentC J Tennet for Second RespondentJudgment: 8 February 2019JUDGMENT OF CLARK JIntroduction[1] The Commissioner of Police has filed applications for profit forfeiture andeffective control orders in respect of the first respondent and an application for an assetforfeiture order in respect of the second respondent. The applications are made underthe Criminal Proceeds (Recovery) Act 2009 (the Act).[2] The Commissioner has been engaged in settlement discussions with the firstrespondent. They have agreed to terms of settlement and seek the Court's approval ofthe settlement pursuant to s 95 of the Act.Background[3] The application for profit forfeiture against the first respondent was in respectof the following property:(i) All interests in a 2009 Ford Falcon Super Pursuit utility, registrationWKDFPV, and its keys.(ii) All interests in a 1956 Ford Fairlane Vic, registration JTJ890, and itskeys.(iii) All interests in a 2008 factory built Big Dog Pit Bull motorcycle,registration RDR, and its keys.(iv) All interests in a 2006 Holden Commodore, registration HFF860, andits keys.(v) All interests in a 2002 Mazda Atenza, registration JAS206, and its keys;and(vi) All interests in a 1957 Ford Customline, registration GEH943, and itskeys.[4] The grounds on which the order was sought were that the first respondent had,in the relevant period of criminal activity1 namely, 26 July 2011 to 26 July 2016,unlawfully benefited to the value of $456,373.30 from significant criminal activitybeing the supply of methamphetamine.[5] The property which I have listed above was to be realised to recover themaximum recoverable amount of $456,373.30.[6] The application under s 58 of the Act was for an order that the followingproperty be treated as though the first respondent has interests in it:(i) All interests in a 2008 factory built Big Dog Pit Bull motorcycle,registration RDR, registered to Itufa Sulusi and its keys (themotorcycle).(ii) All interests in a 2006 Holden Commodore, registration HFF860,registered to Tama Ranginui Hohepa Hawkins and its keys (theHolden).(iii) All interests in a 2002 Mazda Atenza, registration JAS206, registeredto Aaron John Mair in the Police National Intelligence Application andits keys (the Mazda).(iv) All interests in a 1957 Ford Customline, registration GEH943,registered to Itufa Sulusi in the Police National Intelligence Applicationand its keys (the Customline).[7] The Commissioner relied on evidence of communications by the firstrespondent:(a) discussing the motorcycle as if he were the true owner;(b) claiming ownership of the Holden in a Facebook post and discussing1 As defined in s 5 of the Criminal Proceeds (Recovery) Act 2009.spending money on the vehicle as well as giving an unsigned statementto the Police following an incident with the Holden, that he owned theHolden; and(c) stating to police when this particular police operation terminated, thatthe Mazda was his vehicle.[8] The Customline is registered in the name of the first respondent's brother (thefirst interested party). The first respondent delivered the Customline to panel beatersfor paint work and a bank cheque for $21,000 was paid in advance for the work done.[9] The applications against the first respondent and second respondent were setdown for a two-day hearing on 18 and 19 February 2019.[10] The joint memorandum by which the Commissioner and first respondent seekapproval of their settlement was filed on 15 January 2019. I issued a minute on4 February 2019 advising counsel that I had reviewed the terms of the settlement andwas satisfied it could be approved. The two-day hearing was vacated. My reasonswere to follow. This judgment contains my reasons.The proposed settlement[11] Under the settlement proposal the first respondent's interests in the followingproperty will be forfeited to the Commissioner:(i) All interests in a 2009 Ford Falcon Super Pursuit utility, registrationWKDFPV, and its keys.(ii) All interests in a 1956 Ford Fairlane Vic, registration JTJ890, and itskeys.(iii) All interests in a 2008 factory built Big Dog Pit Bull motorcycle,registration RDR, and its keys.(iv) All interests in a 2006 Holden Commodore, registration HFF860, andits keys.(v) All interests in a 2002 Mazda Atenza, registration JAS206, and its keys.[12] All interests in the Customline are to be returned to the first respondent.Should the settlement be approved?[13] Under s 95 of the Act the High Court must approve a settlement if satisfied thesettlement is consistent with the purposes of the Act and the overall interests of justice.[14] The primary purpose of the Act is to establish a regime for the forfeiture ofproperty:2(a) that has been derived from significant criminal activity; or(b) that represents the value of a person's unlawfully derived income.[15] The forfeiture regime is to eliminate the chance for persons to profit fromsignificant criminal activity and curtail the expansion of criminal enterprise.3[16] In their joint memorandum counsel referred to Commissioner of Police vSaunders as authority for the proposition that a joint memorandum having been filed,that was sufficient for the Court to approve a settlement.4[17] Commissioner of Police v Saunders does not stand for such a wide proposition.In that case no formal application had been made for a forfeiture order. Chisholm Jnoted at the outset that there was no formal application before the Court but wasprepared to treat the joint memorandum of counsel "as an application for [a profitforfeiture order] under the Criminal Proceeds (Recovery) Act 2009".5 Chisholm J thenproceeded to determine whether the proposed settlement was consistent with thepurposes of the Act and the overall interests of justice, as required by s 95. In other2 Section 3(1).3 Section 3(2).4 Commissioner of Police v Saunders [2012] NZHC 3479.5 At [2].words a joint memorandum agreeing to settlement will not, of itself, provide a properbasis for the Court to approve a settlement. As observed by Moore J in Commissionerof Police v Gray:6As this Court has previously observed, Parliament has entrusted the Courtwith a supervisory jurisdiction to ensure that settlements are consistent withthe parliamentary intention.[18] For the following reasons, I am satisfied the proposed settlement is consistentwith the purposes of the Act and with the interests of justice:(a) The matter has been before the Court for over two years. The propertyhas been stored by the Official Assignee over that time. A settlementwill avoid continuing additional costs associated with the storage andwith a hearing.(b) The value of the property to be returned to the first respondentrepresents, in the Commissioner's estimate, approximately 10 per centof the total value sought. Accordingly, the proposed settlement reflectsa pragmatic and sensible outcome.(c) Factors such as the saving of time and cost and avoiding litigation riskare routinely regarded as favouring a settlement in the interests ofjustice.7(d) As well, the public interest is served by avoiding a two-day hearing andachieving instead, finality and certainty with regards to the outcome.86 Commissioner of Police v Gray [2015] NZHC 377 at [10], citing Commissioner of Police v Know-All Group Ltd HC Auckland CIV-2010-404-403, 7 November 2011 at [11].7 See for example Commissioner of Police v Venn [2014] NZHC 361; Commissioner of Police vBradley [2012] NZHC 1594; and Commissioner of Police v Moutray [2012] NZHC 2940.8 These factors were recognised as relevant and important considerations in deciding whether toenter into settlement in Commissioner of Police v Moutray, above n 7, at [6]; and Commissionerof Police v Investments Ltd [2017] NZHC 284 at [16].Result[19] The settlement is approved and an order to that effect is accordingly made. Theterms of the settlement that are approved are those set out in [11] above._____________________________Karen Clark JSolicitors:Elvidge & Partners, Napier for Applicant