Commissioner of Police v Rose [2018] NZHC 423 (14 March 2018)

Last Updated: 26 March 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-2679 [2018] NZHC 423

BETWEEN	COMMISSIONER OF POLICE Applicant
AND	PAUL KENNETH ROSE First Respondent JANE CLARE ROSE Second Respondent

Hearing:	On the papers
Appearances:	M R Harborow and L J Fraser for the Commissioner D Dufty for First Respondent
Judgment:	14 March 2018

JUDGMENT OF LANG J

[on proposed settlement]

This judgment was delivered by me on 14 March 2018 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

COMMISSIONER OF POLICE v ROSE [2018] NZHC 423 [14 March 2018]

[1] In this proceeding the Commissioner of Police sought forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against Mr and Mrs Rose. Muir J approved a settlement of the proceeding against Mrs Rose on 19 February 2018.¹ The Commissioner and counsel for Mr Rose now seek the Court’s approval under s 95 of the Act to a settlement between the Commissioner and Mr Rose.

Background

[2] Mr and Mrs Rose were prosecuted by the Serious Fraud Office on charges of obtaining by deception under s 240 of the Crimes Act 1961. The charges related to offending in 2006 and between 2010 and 2012 whilst Mr Rose was employed by Mighty River Power Limited. The offending related to invoices rendered by Mr Rose to Mighty Power by companies with which he was associated. He rendered the invoices so that Mercury Energy would make payments to the two companies with which he had an association. Mrs Rose was the shareholder and director of one of these companies. Both Mr and Mrs Rose were convicted following a trial by jury.

[3] The Commissioner now holds restrained property having a value of $747,870. These comprise one-half of the proceeds of the sale of three residential properties, together with the proceeds of sale of a 2008 Audi RS6 motor vehicle. In addition, the Commissioner holds a 1979 Ducati Desmo motorcycle.

The proposed settlement

[4] The proposed settlement provides for the sum of $45,000 and the Ducati motorcycle to be released to Mr Rose. The balance of the assets would be subject to forfeiture orders made under the Act. Provided the Court approves the proposal, the Commissioner will not seek profit forfeiture orders against Mr Rose, and that aspect of the application can be dismissed with costs to lie where they fall.

Decision

[5] I am satisfied that the proposed settlement adequately recognises the primary purpose of the Act, which is to provide for forfeiture of property derived directly or

¹ Commissioner of Police v Rose [2018] NZHC 189.

indirectly from significant criminal activity, or property representing the value of a person’s unlawfully derived income.² An ancillary purpose of the regime is to deter significant criminal activity.³

[6] The proposed settlement will result in Mr Rose receiving cash or assets to the total value of $65,000, whilst the value of the property forfeited to the Crown will be approximately $683,000. In my view this recognises the fact that the Commissioner appears to have a strong case to show that all of the restrained property, other than the motorcycle, is tainted property and to establish that Mr Rose unlawfully benefited from significant criminal activity. If the Commissioner could establish those elements, he would be entitled to both assets forfeiture orders and a profit forfeiture order. The Commissioner accepts, however, that Mr Rose may have grounds to claim relief on the ground that the forfeiture of all assets would cause undue hardship to him. The settlement reflects the Commissioner’s assessment that his risk in relation to this issue is modest. The Commissioner is also mindful of Mr Rose’s personal situation, which involves the care of several young children. For that reason the Commissioner is prepared to allow Mr Rose to retain a modest proportion of the restrained assets.

[7] For his part, Mr Rose recognises the strength of the Commissioner’s case, particularly given his convictions for the activities that led to the property being restrained.

[8] Both parties recognise there will be a considerable savings in time and cost if the matter can be resolved by consent at this stage without the need for further litigation. The settlement will also provide both parties with certainty as to the final outcome.

[9] I agree with all of these conclusions.

² Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (b).

³ Section 2(b).

Orders

[10] I approve the settlement under s 95 of the Act as being consistent with the objectives of the Act. I therefore make orders as sought in terms of para 7.1 of the joint memorandum.

Fixture

[11] At present the proceeding is the subject of a fixture on 9 and 10 April 2018. The only remaining issue to be determined is an application by Mercury Energy for relief against forfeiture. The Commissioner and Mercury Energy are in discussions and anticipate this issue will be able to be resolved without the need for a hearing. At this stage, however, I do not vacate the fixture on 9 and 10 April 2018. The Registry is to note, however, that the fixture is unlikely to be required.



Lang J

Solicitors:

Crown Solicitor, Auckland D Dufty, Barrister, Auckland