THE COMMISSIONER, THE NEW ZEALAND POLICE v WISHART & GLUMICIC [2020] NZHC 2159

THE COMMISSIONER, THE NEW ZEALAND POLICE v WISHART & GLUMICIC [2020] NZHC 2159 [25August 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-34[2020] NZHC 2159UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under sections 43, 44, and 52BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND RICHARD WISHARTFirst RespondentBRANKA GLUMICICSecond RespondentNEVILLE ALEXANDER WISHARTFirst Interested PartyJACQUELINE GRACE TRIFUNOVICHSecond Interested PartyTHE WISHART FAMILY TRUSTThird Interested PartyHearing: On the papersCounsel: A W M Britton for ApplicantM Robinson for First RespondentG Turkington for Second Respondent and Interested PartiesJudgment: 25 August 2020JUDGMENT OF CLARK JIntroduction[1] The parties seek this Court's approval of their settlement under s 95 of theCriminal Proceeds (Recovery) Act 2009.[2] It is agreed that the first respondent has been involved in significant criminalactivity in terms of s 6 of the Act1 and that he received an unlawful benefit of$209,245.78 from his significant criminal activity.Procedural Background[3] On 3 February 2020 the applicant filed a without notice application for arestraining order over:(a) cash totalling $9,245.78 seized from the first respondent at 10 NagpurTerrace, Broadmeadows, Wellington (the residential property) on15 November 2019 and currently held in the New Zealand Police TrustAccount;(b) all interests in the residential property registered in the name of thesecond interested party Jacqueline Grace Trifunovich, Diana GraceWishart and the first interested party Neville Alexander Wishart;(c) the contents of the Kiwibank term-deposit account (the Kiwibankaccount) personalised in the name of the first respondent and the secondrespondent and estimated to hold funds to the value of $23,000 to$25,000.[4] On 7 February 2020 the High Court made an order restraining the property.1 The first respondent pleaded guilty and has been convicted under the Misuse of Drugs Act 1975of cultivating cannabis (s 9(1)) and possession of cannabis for supply (s 6(1)(f)).[5] On 11 February 2020 the applicant filed an on-notice application for arestraining order over the property. The applicant did not proceed with the restraint ofproperty over the contents of the Kiwibank Account.[6] This proceeding was adjourned on 9 March 2020 to allow for the criminalproceedings in the District Court to be concluded.[7] An instrument forfeiture order hearing was scheduled before the District Courtfor 29 June 2020 as part of the criminal proceedings. Before that hearing took place,the parties reached an agreed position and advised the District Court that they wouldseek the approval of this Court to resolve all forfeiture matters flowing from thedefendant's offending.[8] Sentencing of the first respondent is due to take place in the District Court on26 August 2020.The proposed settlement[9] The parties agree that funds totalling $209,245.78 should be forfeited to theCrown.[10] The parties have agreed to the following terms:(a) the third interested party, the Wishart Family Trust,2 will make apayment of $200,000 to the Official Assignee's trust account on behalfof the first and second respondents within 10 working days of theCourt's determining of a profit forfeiture order; and(b) the $9,245.78 cash amount currently under restraint as part of theseproceedings is forfeited to the Crown under a profit forfeiture order.[11] The parties have further agreed that:(a) once payment of $200,000 by the third interested party has been2 The Wishart Family Trust is the registered proprietor of the residential property.received in the Official Assignee's trust account, the applicant willapply for a further order to vary the without notice restraining order torelease from restraint the residential property; and(b) in the event that the third interested party does not make the paymentof $200,000 to the Official Assignee's trust account within 10 workingdays of the profit forfeiture order, the Official Assignee may sell theresidential property to recover the maximum recoverable amountspecified in the profit forfeiture order; and(c) costs are to lie where they fall in respect of this proceeding.The law[12] While the Commissioner may enter into a settlement with any person as to theproperty or sum of money to be forfeited to the Crown a settlement does not bind theparties unless approved by the High Court. If the High Court is satisfied that thesettlement is consistent with the purposes of the Act and the overall interests of justiceit must approve the settlement.3[13] The primary purpose of the Act is to establish a regime for the forfeiture ofproperty:4(a) that has been derived from significant criminal activity; or(b) that represents the value of a person's unlawfully derived income.[14] The forfeiture regime is to eliminate the chance for persons to profit fromsignificant criminal activity and curtail the expansion of criminal enterprise.[15] As Brewer J observed in Commissioner of Police v Know-All Group Limited:53 Criminal Proceeds (Recovery) Act 2009, s 95.4 Criminal Proceeds (Recovery) Act 2009, s 3(1).5 Commissioner of Police v Know-All Group Limited HC Auckland CIV 2010-404-403, 7 February2011 at [11].The approval of this Court of a proposed settlement is not a stamping exercise.Parliament has entrusted the Court with a supervising jurisdiction aimed atensuring that settlements are consistent with Parliament's intent in enactingthe statute.Discussion[16] The statutory language in s 95 — the "overall interests of justice" — indicatesa broad inquiry is required when the Court is tasked with approving a settlement.6 Assuch, the Court can consider a number of factors.[17] I consider the most relevant here to be that the proposed settlement figure isthe maximum amount recoverable and the settlement involves forfeiting property thatrepresents the substantial unlawful benefit the first and second respondents havereceived from the first respondent's significant criminal activity.[18] A further positive feature of the proposed settlement is that the uncertaintyinherent in litigation, and the costs associated with it, are avoided.[19] I am satisfied the parties' settlement is consistent with the purposes of the Actand the overall interests of justice.Orders[20] Accordingly, the settlement is approved and the following orders are made:(a) The third interested party, the Wishart Family Trust, will make apayment of $200,000 to the Official Assignee's trust account on behalfof the first and second respondents within 10 working days.(b) The $9,245.78 cash amount currently under restraint as part of theseproceedings is forfeited to the Crown under a profit forfeiture order.(c) Once payment of $200,000 by the third interested party has beenreceived in the Official Assignee's trust account, the applicant willapply for a further order to vary the without notice restraining order to6 Commissioner of Police v Li [2018] NZHC 1566 at [32].release from restraint the residential property.(d) In the event that the third interested party does not make the paymentof $200,000 to the Official Assignee's trust account within 10 workingdays of the profit forfeiture order, the Official Assignee may sell theresidential property to recover the maximum recoverable amountspecified in the profit forfeiture order.(e) Costs shall lie where they fall._____________________________Karen Clark JSolicitors:Crown Solicitor, Wellington for ApplicantLandford Law, Wellington for Respondents and Interested Parties