Commissioner of Police v Nicholls [2016] NZHC 510 (23 March 2016)

Last Updated: 9 May 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2016-488-17 [2016] NZHC 510

UNDER	the Criminal Proceeds (Recovery) Act 2009
BETWEEN	THE COMMISSIONER OF POLICE Applicant
AND	LEROY NICHOLLS Respondent

Telephone Conference:	16 March 2016
Appearances:	J Golightly for the Applicant
Judgment:	23 March 2016

_{JUDGMENT OF THOMAS J}

This judgment was delivered by me on 23 March 2016 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

Solicitors:

_{Marsden Woods Inskip & Smith, Whangarei.}

THE COMMISSIONER OF POLICE v NICHOLLS [2016] NZHC 510 [23 March 2016]

[1] The applicant, the Commissioner of Police, has applied for a restraining order and assets and profit forfeiture in respect of cash seized from the respondent, Leroy Nicholls, at his home address on 27 January 2015.

[2] Mr Nicholls was served with the application on 3 March 2016. The application noted the matter would be called on 17 March 2016. Because of the unavailability of a Judge that day, the matter was brought forward until

16 March 2016. There have been no steps taken by Mr Nicholls in respect of the application.

[3] Pursuant to r 7.24 of the High Court Rules, any notice of opposition must be filed and served within, in this case, three working days before the hearing date. No such notice of opposition has been received.

Background

[4] On 27 January 2015, the Police executed a search warrant at Mr Nicholls’ home in Kaitaia. During the search the Police located a cannabis growing room which had 57 cannabis plants, 592.5 grams of dried cannabis head, 2210 grams of dried cannabis, three LSD tabs, snap lock bags, kitchen scales, equipment for an indoor cannabis grow and planting materials.

[5] There was also $29,000 in cash (the Property) inside a locked black brief case which was located in the cannabis growing room.

[6] When spoken to by the Police on 27 January 2015, Mr Nicholls admitted ownership of “grow room” and everything inside it but stated the cannabis was for personal use. He said his daughter had given him $25,000 between one year and one and a half years ago in order to build a shed on some land in the Coromandel. The Police satisfied themselves, enquiry with Mr Nicholls’ daughter, that she had indeed received compensation and had given her father some money, although she gave slightly different versions of events on the two occasions she was interviewed.

[7] The records of the Inland Revenue Department reveal that Mr Nicholls has been receiving a benefit from the Ministry of Social Development since 2006, which provided him with a total gross income over the period from 2010 to 2015 of

$100,211.04.

[8] As a result of the search warrant, Mr Nicholls was charged with cultivating cannabis, possession for supply of cannabis and possession of LSD. He pleaded guilty to all charges and was sentenced to 19 August 2015 to eight months’ home detention.

Restraint

[9] Pursuant to s 24 of the Criminal Proceeds (Recovery) Act 2009 (the Act), a restraining order relating to specific property can be made if the Court is satisfied it has reasonable grounds to believe that any property is tainted property. Tainted property, under s 5 of the Act:

(a) means any property that has, wholly or in part, been—

(i) acquired as a result of significant criminal activity; or

(ii) directly or indirectly derived from significant criminal activity;

and

(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.

[10] I am satisfied on the balance of probabilities that Mr Nicholls had been involved in significant criminal activity within the meaning of the Act, given his acknowledged involvement in the cultivation and supply of the class C controlled drug cannabis.

[11] I am also satisfied that the Property is tainted property, in that, it has wholly or in part been acquired as a result of significant criminal activity or derived directly

or indirectly from significant criminal activity. I say that given the evidence referred to above, noting the Property was located in the grow room, Mr Nicholls’ sole source of income since 2009 has been his MSD benefits and given the uncertainty regarding the cash payment said to have come from his daughter.

[12] For those reasons, I make the restraining order in relation to the Property pursuant to s 24 of the Act.

Forfeiture

[13] The Crown then seeks an assets forfeiture order in respect of the Property.

[14] Given I have found on the balance of probabilities that the Property is tainted property, I must make an assets forfeiture order in respect of the Property pursuant to s 50(1) of the Act. No application has been made by the respondent to exclude the Property from an assets forfeiture order on the grounds of undue hardship.

Result

[15] For the reasons given, I first make the restraining order that the Property is not to be disposed of or dealt with other than as is provided for in the restraining order and it is to be in the Official Assignee’s custody and control.

[16] I also make the assets forfeiture order. The Property now vests in the Crown

absolutely and is to be in the Official Assignee’s custody and control.

[17] Given the orders, the applicant withdraws his application for a profit forfeiture order.

[18] Out of an abundance of caution, I direct that the orders lie in Court until 4pm

Friday 18 March 2016 in case any steps are taken by Mr Nicholls to attend the hearing date as originally scheduled.

Thomas J