Commissioner of Police v Dollman

[2017] NZHC 3094

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2013-425-334 [2017] NZHC 3094

BETWEEN

THE COMMISSIONER OF THE NEW

ZEALAND POLICE Applicant

AND

KARL ALFRED TRUAN DOLLMAN First Respondent

AND

CHRISTIAN KARL DOLLMAN Second Respondent

AND

DIRK JAMES LADBROOK Third Respondent

AND

KERRYN ROBERT McDONALD Fourth Respondent

AND

RYAN NICHOLAS KITTO Fifth Respondent

AND

LORI KATHRYN McEWING Sixth Respondent

AND

JEREMY JOHN PROCTOR Seventh Respondent

AND

KERRI-ANNE REBECCA PIPSON Eighth Respondent

AND

AIDEN JOHN THWAITES First Interested Party

AND

JULIA RENEE HABERFIELD Second Interested Party

THE COMMISSIONER OF THE NEW ZEALAND POLICE v KARL ALFRED TRUAN DOLLMAN [2017] NZHC 3094 [12 December 2017]

Hearing:	12 December 2017
Appearances:	R W Donnelly for Crown R G R Eagles for First, Second and Third Respondents S Williamson for Fourth Respondent K McHugh for Fifth Respondent K Barker for Sixth Respondent J Ross for First Interested Party R G R Eagles for Second Interested Party
Judgment:	12 December 2017

JUDGMENT OF DUNNINGHAM J

[1]      The applicant and a number of the respondents and interested parties in these proceedings have agreed on terms of settlement and the details of those settlements have been set out in memoranda filed with the Court.

[2]      The parties to the various settlement agreements request that the Court approve them in accordance with s 95 of the Criminal Proceeds (Recovery) Act 2009 (“the Act”), on the grounds that each settlement accords with the purposes of the Act and the overall interests of justice.

[3]      Having reviewed the applications, and the affidavit evidence filed in relation to them, I am satisfied that it is appropriate to approve the following settlement agreements:

The first respondent

[4]      The applicant and first respondent have agreed terms of settlement. The terms of the settlement are:

1.        An asset forfeiture order be made in respect of the cash, in the sum of

$38,635.00, found by the Police at the first respondent’s address on 24

July 2014. The terms of the asset forfeiture order are that the cash is:

1.1      Tainted property.

1.2      Vests in the Crown absolutely.

1.3      Is in the custody and control of the Official Assignee.

2.A profit forfeiture order be made in respect of the first respondent. The terms of the profit forfeiture order are:

2.1      The value of the benefit, in accordance with s 53 of the Act, is

$359,242.00.

2.2The maximum amount recoverable, in accordance with s 54 of the Act (taking into account the cash in the sum of $38,635.00), is $323,607.00.

2.3      The property to be disposed of is:

2.3.162 Roxburgh East Road, Roxburgh, Certificate of Title OT12C/134; the legal description is Lot 1 DP 20442 of Otago District (Roxburgh East Road).

2.4The sum resulting from the realising of Roxburgh East Street (less amounts required to be paid in priority pursuant to under s 83 of the Act) is in full and final satisfaction of the maximum amount recoverable against the first respondent and accordingly there will be no balance outstanding that would be recoverable as a civil debt pursuant to ss 55(4) or 83(4) of the Act or any other applicable section.

3.        Costs are to lie where they fall.

[5]      The Court hereby approves this settlement, in accordance with s 95 of the Act, and makes orders accordingly.

Fifth and sixth respondents

[6]      The applicant, the fifth respondent and the sixth respondent have agreed terms of settlement. The terms of the settlement are:

1A profit forfeiture order be made in respect of the fifth and sixth respondents. The terms of the profit forfeiture order are:

1.1      The value of the benefit, in accordance with s 53 of the Act is

$218,750.00 (not $352,370.00 as stated in the application).

1.2The maximum amount recoverable, in accordance with s 54 of the Act  is  $218,750.00  (not  $352,370.00  as  stated  in  the application).

1.3The property to be disposed of (subject to the mortgage to Bank of  New  Zealand,  secured  by  mortgage  instrument  number

8499382.3, being repaid in full) is:

1.3.1    16  Saturn  Street,  Invercargill,  Certificate  of  Title

SL 168/75; the legal description is Lot 9, DP 4038 of

Southland District (Saturn Street).

2.The sum resulting from the realising of Saturn Street (less amounts required to be paid in priority under s 83 of the Act) is in full and final satisfaction of the maximum amount recoverable against the fifth respondent and the sixth respondent and accordingly there will be no balance outstanding that would be recoverable as a civil debt pursuant to ss 55(4) or 83(4) of the Act or any other applicable section.

3.        Costs are to lie where they fall.

[7]      The Court hereby approves that settlement, in accordance with s 95 of the Act and makes orders accordingly.

The seventh respondent

[8]      The seventh respondent has not taken a position in respect of the application for a profit forfeiture order sought against him.  Based on the evidence filed by the applicant, and in particular the affidavit of Detective Andrew Beswick sworn on

1 October 2015, the applicant seeks a profit forfeiture order against the seventh respondent.

[9]      The terms of the order sought are:

(a)       that the unlawful benefit is $55,200;

(b)      the maximum recoverable amount is $55,200;

(c)       the property to be disposed of is:

(i)       the 1994 Harley Davidson Dyna Wide Glide motorcycle.

[10]     In the absence of any steps being taken by the seventh respondent, and being satisfied that the applicant’s case for a profit forfeiture order in the amount sought, and in respect of the property identified, is established on the evidence filed, I make orders accordingly.

Remaining applications

[11]     The balance of the applications are to be called on a date to be arranged, in consultation with counsel, on or after 1 March 2018 next year.

[12]     It is understood that at that point:

(a)      the applicant may be in a position to put a settlement agreement before the Court for approval in relation to the second respondent and second interested party;

(b)the applicant will have filed a further forfeiture application in relation to property owned by the fourth respondent;

(c)       the applicant will proceed against the third respondent as explained in the separate minute issued today.

Solicitors:

Preston Russell Law, Invercargill

Hewat Galt Lawyers, Invercargill
AWS Legal, Invercargill

Eagles Eagles and Redpath, Invercargill