Commissioner of Police v Malcolm

[2013] NZHC 2986

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV 2010-483-27 [2013] NZHC 2986

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDWAYNE PUHI MALCOLM Respondent

Hearing:                   On Papers

Counsel:                  L C Rowe for Applicant

M J Bullock for Respondent

Judgment:                12 November 2013

JUDGMENT OF RONALD YOUNG J (Application for profit forfeiture order)

[1]      The Commissioner of Police has made an application for a forfeiture order under s 55 of the Criminal Proceeds (Recovery) Act 2009.  The application relates to an  amount  of  $62,400.    This  is  said  to  be  the  least  profit  from  Mr Malcolm’s harvesting and sale of cannabis plants.

[2]      The total assets available for forfeiture are $58,686.98 in cash.  And so if an order is made the difference, $3,713.02, would be a civil debt owed by Mr Malcolm to the Commissioner.  Mr Malcolm originally opposed the application but has chosen not to file any evidence or submissions in opposition and now does not oppose the

orders made.

POLICE v MALCOLM [2013] NZHC 2986 [12 November 2013]

[3]      In   March 2010   following   covert   surveillance   the   police   executed   a search warrant at Mr Malcolm’s address in Wanganui.   As a result evidence was gathered of cultivating cannabis and the intended sale of cannabis.   Mr Malcolm subsequently pleaded guilty to cultivating cannabis and possession of cannabis for sale.   As a result of this search $42,915.30 in cash was found in Mr Malcolm’s residence.   In addition he had $3,100 cash on his person and he had two bank accounts totalling $10,014.56.

[4]      There is evidence from the police who undertook an analysis of the potential profit available to Mr Malcolm from the cultivation of cannabis.  That profit from the past sale of harvested plants was estimated between $62,400 and $97,500.  The Crown seek a profit forfeiture order with respect to the lower amount.

[5]      On initial matter before I deal with the forfeiture order.  An initial restraining order was made with respect to the cash identified on 25 May 2010 for a period of

12 months.  There were a number of further extensions. As to the last one sought, on

9 April 2013 the order was extended for a further six months to 30 September 2013 (after the order had expired on 31 March 2013).  On 18 September 2013 the police applied for a further extension of the restraining order.  Regretfully that application was not referred to a Judge until 1 November 2013 by which time the six month period expiring on 30 September 2013 had passed.

[6]      The  Crown  say,  however,  that  s 41(4)  provides  that  where,  as  here,  an application  to  extend  the  restraining  order  has  been  made  before  its  date  of expiration, the restraining order continues in force.

[7]      Section 41 (Criminal Proceeds (Recovery) Act 2009) of the Act provides as follows:

41       Extending duration of restraining order

(1)       If a court has made a restraining order, the applicant for that order may,  before  the  restraining order  expires,  apply  to  that  court  to extend its duration.

(2)       If an application is made under subsection (1), the court may order that the operation of the restraining order be extended for a period not exceeding 1 year.

(3)      The duration of a restraining order may be extended more than once under this section.

(4)      If, before a restraining order would otherwise expire under section

37(1), an application is made to a court under this section and the application is granted, the restraining order ceases to be in force on

the date specified in the court's order.

[8]      It is not necessary for me to decide whether or not in the circumstances the restraining order in this  case has  expired.   However,  I express doubt  as to  the correctness of the Crown’s interpretation of s 41.  But the existence of a restraining order is not a necessary pre-requisite for the making of a profit forfeiture order.  In this case because I propose to make a profit forfeiture order, it is not necessary for me to resolve the point.  In any event, without full argument it would be unwise to do so.

[9]      There are four steps that a court needs to be satisfied of before a profit forfeiture order can be made.   First, I must decide (pursuant to s 53) whether the Commissioner has proved on the balance of the probabilities that Mr Malcolm has unlawfully benefited from significant criminal activity during the relevant period.  I am satisfied given his convictions during the relevant time that Mr Malcolm has unlawfully benefited from significant criminal activity.  Mr Malcolm did not attempt to rebut this evidence nor the presumption as to the value of the benefit as stated in the application.

[10]     Secondly, I must determine the maximum recoverable amount.  I am satisfied that the maximum recoverable amount is $62,400.

[11]     Thirdly, I must determine whether any property should be excluded because of undue hardship to the respondent. There is no such suggestion in this case.

[12]     Finally, I must decide if, on the balance of probability, the Commissioner has met the requirements of s 55.  In my view this is an appropriate case for the making of a profit forfeiture order.

[13]     I, therefore, make a profit forfeiture order in the sum of $62,400.  There is no deduction to be made in respect of any asset forfeiture order which has not been made.  Accordingly, all of the current funds held by the Public Trustee on behalf of the Commissioner should be forfeited.  These total $58,686.98.  The remaining sum

$3,713.02 should be able to be recovered as a civil debt pursuant to s 55(4) of the

Act.

Ronald Young J

Solicitors:

Armstrong Barton, Crown Solicitors, Wanganui

JRT Lawyers, Wanganui