Commissioner of Police v Moutray

[2012] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-5041 [2012] NZHC 2940

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDDAVID WILLIAM MOUTRAY Respondent

Hearing:         7 November 2012

Counsel:         R McCoubrey for Applicant

H C Stuart for Respondent

Judgment:      7 November 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

R Mansfield, PO Box 2674, Shortland Street, Auckland

THE COMMISSIONER OF POLICE V MOUTRAY HC AK CIV 2012-404-5041 [7 November 2012]

[1]      The   Commissioner   of   Police   applies,   under   the   Criminal   Proceeds (Recovery) Act 2009, (the Act) for an asset forfeiture order in respect of cash located by Police during the course of a search at 115A Craig Road, Awhitu on 22 July 2009. The amount seized was $28,030.

[2]      As a result of steps taken subsequent to the search, Mr Moutray was charged with possessing methamphetamine for the purpose of supply, cultivating cannabis, possessing a firearm and possessing ammunition.  Following a trial by jury in August

2011, he was found guilty and sentenced by Judge McAuslan, on 27 September

2011.

[3]      The  question  of  forfeiture  of  the  amount  seized  was  raised  before  the sentencing Judge but she was not prepared to deal with it at that time.  Since seizure, the sum of $28,030 has been held in an interest bearing account.   Subsequent to sentencing, discussions have taken place between counsel for the Commissioner and Mr Moutray. A settlement has been agreed whereby all but $1,000 of the sum seized, plus accrued interest, is to be retained by the Commissioner.  On the basis that he will receive $1,000, Mr Moutray does not oppose the Commissioner’s application for effective control and forfeiture orders in respect of the balance of the moneys.  It is intended that costs on the proposed settlement are to lie where they fall.

[4]      The application is before the Court today because s 95 of the Act requires this Court to approve any settlement into which the Commissioner may wish to enter. Section 95(3) provides that this Court must approve the settlement if satisfied it is consistent with the purposes of the Act and the overall interests of justice.

[5]      The factors put forward on behalf of the parties to justify their application for approval are these:

(a)       First,  the  property  proposed  to  be  returned  to  Mr  Moutray  is  of relatively low value.

(b)Second, there will be a saving of time and, especially, cost if the application were resolved on an unopposed basis.

(c)       Third, Mr Moutray’s legal aid debt will be met from the forfeited

property, under ss 82 and 83 of the Act.

[6]      In my view, the settlement is clearly consistent with the purposes of the Act. The pragmatic arrangements that allow Mr Moutray to retain $1,000 of the property seized do not affect that conclusion.  The overall interests of justice are enhanced by the arrangement given the ability to achieve certainty as to outcome for far less cost than would otherwise have been involved.

[7]      I make an order approving the settlement on the substantive application.   I direct the sum of $27,030 together with any accrued interest on the $28,030 held to date, is forfeited to the Crown as an asset forfeiture order made under s 50 of the Act. The sum of $1,000 shall be paid to Mr Moutray.  The amount forfeited to the Crown shall be paid to the Official Assignee and thereafter be under his control in terms of the Act.

[8]      No order as to costs.

P R Heath J