THE COMMISSIONER, THE NEW ZEALAND POLICE v TE RURE (AKA KINGI) [2020] NZHC 2168 [25 August 2020]

THE COMMISSIONER, THE NEW ZEALAND POLICE v TE RURE (AKA KINGI) [2020] NZHC 2168[25 August 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2020-441-26[2020] NZHC 2168UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under sections 21, 25, 43, 44& 52BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND QUENTIN ROBERT JAMES TE RURE(AKA QUENTIN ROBERT KINGI)First Interested PartyRICHARD TE RURESecond Interested PartyANN FRANCIS LAKEThird Interested PartyHearing: On the PapersCounsel: F E Cleary for ApplicantJudgment: 25 August 2020JUDGMENT OF CLARK J[1] The Commissioner of Police has made two applications:(a) an application for a restraining order (on notice);1 and(b) an application for a profit forfeiture order.21 Criminal Proceeds (Recovery) Act 2009, s 21.2 Section 43.[2] A without notice restraining order was granted on 4 June 2020. The secondand third interested parties have taken no step nor made any contact. Accordingly, theCommissioner asks that the matter proceed by way of formal proof. The Duty Judgedirected the filing of an affidavit of service on interested parties. The papers have beenplaced before me as Duty Judge. Although the possibility of a short hearing wasforeshadowed earlier I have been able to determine the applications on the papers.Factual background[3] On 4 April 2019 Police were alerted to a car crash at Manga-o-nuku BridgeNo 3 on State Highway 50 in Hawkes Bay. On arrival they found a severely damaged2003 Holden Commodore, registration BPB484. The vehicle had collided with theconcrete abutment of a one-lane bridge.[4] The driver and sole occupant of the vehicle, the first interested party, QuentinRobert James Te Rure (aka Quentin Robert Kingi) died at the scene.3 Police locatedtwo cellphones: one in Mr Kingi's trouser pocket and another on the driver's seat.Also located in the vehicle was a 'Nike' shoulder bag containing two sealable bags ofmethamphetamine weighting 40.2 grams in total, a bundle of cash bound with a rubberband and Mr Kingi's driver's licence. Including the cash in the shoulder bag, a totalof $15,555 cash was located throughout the vehicle.[5] Police later obtained production orders in respect of the two cellphones. TheCommissioner submits the text message data obtained reveals that Mr Kingi wasinvolved in the sale and supply of methamphetamine and cannabis.Application for profit forfeiture order[6] The Commissioner seeks an order that:(a) the value of the unlawful benefit ( determined in accordance withsection 53 of the Act) in this case is $18,790.00; and3 To avoid confusion with the second interested party, in this judgment I refer to the first interestedparty as Mr Kingi, the name by which he was also known.(b) the maximum recoverable amount is $18,790.00 (there being no assetsto be forfeited); and(c) the cash located at the scene is to be realised in satisfaction of the profitforfeiture order.[7] The grounds on which the profit forfeiture order is sought is that during theperiod 13 March 2019 to 19 April 2019 Mr Kingi unlawfully benefited to the value of$18,790 from significant criminal activity, namely the sale and supply ofmethamphetamine and cannabis. The Commissioner submits that at the time of hisdeath Mr Kingi had the full interest in the cash. The second and third interested partiesrespectively, Mr Kingi's father and grandmother, have been named as the likelybenefactors of Mr Kingi's estate.The Criminal Proceeds (Recovery) Act 2009[8] Section 7 of the Act provides:7 Meaning of unlawfully benefited from significant criminalactivityIn this Act, unless the context otherwise requires, a person hasunlawfully benefited from significant criminal activity if the personhas knowingly, directly or indirectly, derived a benefit fromsignificant criminal activity (whether or not that person undertook orwas involved in the significant criminal activity).[9] Sections 53–55 are also relevant to this application. Section 53 provides:53 Value of benefit presumed to be value in application(1) If the Commissioner proves, on the balance of probabilities,that the respondent has, in the relevant period of criminalactivity, unlawfully benefited from significant criminalactivity, the value of that benefit is presumed to be the valuestated in—(a) the application under section 52(c); or(b) if the case requires, the amended application.(2) The presumption stated in subsection (1) may be rebutted bythe respondent on the balance of probabilities[10] Under s 54, before the High Court makes a profit forfeiture order, it mustdetermine the maximum recoverable amount by taking the value of the benefitdetermined in accordance with s 53 and deducting from that the value of any propertyforfeited to the Crown as a result of an assets forfeiture order made in relation to thesame significant criminal activity to which the order relates.[11] Section 55 provides:55 Making profit forfeiture order(1) The High Court must make a profit forfeiture order if it is satisfied onthe balance of probabilities that—(a) the respondent has unlawfully benefited from significantcriminal activity within the relevant period of criminalactivity; and(b) the respondent has interests in property.(2) The order must specify—(a) the value of the benefit determined in accordance with section53; and(b) the maximum recoverable amount determined in accordancewith section 54; and(c) the property that is to be disposed of in accordance withsection 83(1), being property in which the respondent has, oris treated as having, interests.(3) Subsections (1) and (2) are subject to section 56.(4) A profit forfeiture order is enforceable as an order made as a result ofcivil proceedings instituted by the Crown against the person to recovera debt due to it, and the maximum recoverable amount is recoverablefrom the respondent by the Official Assignee on behalf of the Crownas a debt due to the Crown[12] In Pulman v Commissioner of Police Lang J summarised the effect of s 55 inthe following way:4[10] The making of a profit forfeiture order under s 55 potentially requiresthe Court to take four separate steps. First, it must determine, whether theCommissioner has proved, on the balance of probabilities, that the respondenthas unlawfully benefited from significant criminal activity during the relevantperiod. If the court is so satisfied, the value of that benefit is presumed to be4 Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011, at [10].one of the values prescribed by s 53(1). The respondent may, however, rebutthat presumption on the balance of probabilities[11] Second, the Court is required to determine the maximum recoverableamount. It does that by taking the value of the benefit and deducting fromthat figure the value of any property already forfeited to the Crown by virtueof any assets forfeiture order made in relation to the same criminal activity asthat to which the profit forfeiture application relates.[12] Third, the Court must determine whether any property should beexcluded from the operation of the profit forfeiture order because unduehardship is likely to be caused to the respondent if such property were realised.[13] Once the Court has undertaken such of these exercises as may berelevant, it must make a profit forfeiture order under s 55(1) if it is satisfiedon the balance of probabilities that the respondent has interests in property.Any such order must specify the value of the benefit, the maximumrecoverable amount, and the property that is to be disposed of.(footnotes omitted)Unlawful benefit from significant criminal activity?[13] Detective Sergeant Lea Smith who is attached to the Central Asset RecoveryUnit, swore an affidavit in support of the Commissioner's application for withoutnotice restraining orders in relation to the $15,555 cash located and seized on 4 April2019 from the car Mr Kingi was driving.[14] I have considered the evidence and am satisfied on the balance of probabilitiesit shows the respondent unlawfully benefited from significant criminal activity, as theCommissioner contends. The evidence shows:(a) In addition to the $15,555 cash, Mr Kingi was also in possession of twobags containing a total of 40.2 grams of methamphetamine.(b) The manner in which the methamphetamine was packaged suggests theamount originally purchased by Mr Kingi was two ounces. Althoughboth bags were of equal size one bag contained 27.5 grams ofmethamphetamine (consistent with "an ounce" deal bag) and the otherbag contained 12.7 grams. Detective Smith's evidence is that12.7 grams is an uncommon size and it is likely the two bags originallycontained the same amount of methamphetamine and were purchasedby Mr Kingi as two ounces. The common price for one ounce ofmethamphetamine sold in an ounce quantity was (at the time) $6,000.Two ounces of methamphetamine was likely to have cost Mr Kingiaround $12,000.(c) Analysis of the cellphone records showed messages were exchangedwith 16 different cellphone numbers and were consistent with the saleand supply of methamphetamine and cannabis.(d) Mr Kingi's declared income over a seven year period from 1 April2013 — 31 March 2019 was $35,280.07.[15] Being satisfied that the Commissioner has proved on the balance ofprobabilities that Mr Kingi unlawfully benefited from significant criminal activityduring the relevant period, the value of the benefit is presumed to be that stated in theCommissioner's application, namely $18,790.5 That value is reached as a result of thefollowing calculations.Table 2 Quantities of methamphetamine and cannabis supplied between 13 March2019 and 2 April and values of those quantities supplied (identified from textmessage data).Drug Unit sold Text with Unit Price TotalMethamphetamine 0.1 grams 64275247796 $100 $ 100Methamphetamine 0.25 grams 642108642430 $150 $ 150Methamphetamine 0.5 grams 64224993779 $250 $ 250Methamphetamine 7 grams 64225670893 $400 $2,800Methamphetamine 4 grams 64225670893 $400 $1,600Methamphetamine 3 grams 64225670893 $400 $1,200Methamphetamine total 14.85 grams $6,100Cannabis 17 Tinnies (1.5g per unit) 0225489754 $20 $ 340Cannabis 28 grams (1 Ounce) 64276254031 $350 $ 350CannabisTotal53.5 grams $ 690Combined total $ 6,7905 Section 53(1).Table 3 Total value of unlawful benefit from Serious Criminal Activity.Value of methamphetamine(possession / purchased)$12,000Value of methamphetamineand Cannabis sold$ 6,790Total unlawful benefit $18,790[16] There is no evidence rebutting the statutory presumption.Maximum recoverable amount[17] In determining the maximum recoverable amount the Court must take the valueof the unlawful benefit, as determined above, and deduct from that figure the value ofany property already forfeited to the Crown by virtue of any assets forfeiture ordermade in relation to the same criminal activity as that to which the profit forfeitureorder relates.[18] No asset forfeiture orders have been made or are sought in this matter. Thereare no deductions that need to be made from the value of the unlawful benefit.Undue hardship to the respondent?[19] Mr Kingi is unable to make any claim as to undue hardship. Nor have thesecond or third interested parties made any such claim. Personal service of all relevantdocuments has been effected on both Mr Te Rure and Ms Lake. The documentsincluded a letter from Elvidge & Partners (acting for the Commissioner)recommending they consult a lawyer for further advice. There was also a casemanagement conference on 20 July 2020 at which neither Mr Te Rure or Ms Lakeappeared.Result[20] I am satisfied on the balance of probabilities that Mr Kingi has unlawfullybenefited from significant criminal activity within the relevant period of criminalactivity and that he has interests in property. Accordingly, the following order is made:(i) The value of the benefit determined in accordance with s 53 is$18,790.(ii) The maximum recoverable amount is $18,790.(iii) The cash totalling $15,555 located and seized on 4 April 2019from the 2003 Holden Commodore, registration BPB484, andalso from the crash scene, being property in which Mr Kingi hadan interest, is to be disposed of in accordance with s 83(1) of theAct.[21] A profit forfeiture order having been made there is no need to consider theapplication for an on-notice restraining order._____________________________Karen Clark JSolicitors:Crown Solicitor, Napier for Applicant