Sentencing (Instrument Forfeiture Orders) Amendment Regulations 2009

2009/315

Crest

Sentencing (Instrument Forfeiture Orders) Amendment Regulations 2009

Anand Satyanand, Governor-General

Order in Council

At Wellington this 19th day of October 2009

Present:
His Excellency the Governor-General in Council

Pursuant to section 173 of the Criminal Proceeds (Recovery) Act 2009 and section 147 of the Sentencing Act 2002, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations.

Regulations

1 Title
  • These regulations are the Sentencing (Instrument Forfeiture Orders) Amendment Regulations 2009.

2 Commencement
  • These regulations come into force on 1 December 2009.

3 Principal regulations amended
4 New regulation 5 substituted
  • Regulation 5 is revoked and the following regulation substituted:

    5 Prescribed forms
    • (1) A reference in these regulations to a numbered form is a reference to that form as set out in the Schedule.

      (2) Forms 1 to 12, or forms to the same effect, may be used in connection with proceedings under the Act.

      (3) Forms 13 to 27, or forms to the same effect, must be used in connection with proceedings under the Act that relate to instrument forfeiture orders.

      (4) A form specified in subclause (2) or (3) is used in accordance with that subclause even if the form is used with either or both of the following, so long as the form is not misleading:

      • (a) additional information included because it is required for identification or other official purposes:

      • (b) any variations that the circumstances may require.

5 Schedule amended
  • The Schedule is amended by adding the forms set out in the Schedule of these regulations.


Schedule 
New forms added

r 5

Form 13
General heading for proceedings that relate to instrument forfeiture orders

*In the High Court of New Zealand, [name of registry] Registry

*In the District Court, [name of office] Office

*Select one.

CRI [number of proceeding]

Under sections 142A to 142Q of the Sentencing Act 2002 and subpart 4 of Part 2 of the Criminal Proceeds (Recovery) Act 2009

In the matter of an instrument forfeiture order

Form 14
Prosecutor's notice that court should consider making instrument forfeiture order

Section 142B, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To the Registrar
This document notifies the court that—
  • 1 In the [specify] Court at [place, date], [offender's full name] was convicted of the following qualifying instrument forfeiture offence(s): [specify].

  • 2 [Prosecutor's name and description] is of the opinion that the court should consider whether to make an instrument forfeiture order in respect of the following property used to commit, or to facilitate the commission of, the above qualifying instrument forfeiture offence(s): [details of property, including its value if known to the prosecutor, the names and identifying details of any persons (including persons other than the offender) who, to the knowledge of the prosecutor, have an interest in that property, and the nature and extent of that interest, and summarising how the property was, in the prosecutor’s opinion, used to commit, or to facilitate the commission of, the above qualifying instrument forfeiture offence(s)].

Date:

Signature:

Prosecutor: [name and description]


Form 15
Notice of court's decision and directions in response to prosecutor's notice

Section 142C, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [prosecutor's name and description]
This document notifies you that—
  • 1 The prosecutor's notice given under section 142B of the Sentencing Act 2002 by [prosecutor's name and description] on [date] was considered by the court on [date].

  • 2 For this paragraph select the statement that applies.

  • Statement A
  • The court will on [date] consider making an instrument forfeiture order in respect of the property specified in that prosecutor’s notice.

  • Statement B
  • The court is not of the opinion that it should consider making an instrument forfeiture order in respect of the property specified in that prosecutor’s notice.

  • 3 Omit this paragraph if statement B is selected for paragraph 2.

  • You are directed—

    • (a) to issue and serve any notice required by section 142E of the Sentencing Act 2002 as soon as practicable after the court gives, and in any event not later than 5 working days after the giving of, this direction.

    Omit this paragraph if it does not apply.

    • (b) to provide to the court before [deadline] further information about the following matter(s):

      Select the paragraph(s) that apply.

      • (i) the value of the property that constitutes the instrument of crime:

      • (ii) the nature, extent, and value of the offender’s interest in the property that constitutes the instrument of crime:

      • (iii) the name of any other person with an interest in the instrument of crime, the nature and extent of that person’s interest, and whether or not that person has been notified of the proceedings:

      • (iv) the name of any person who may suffer undue hardship if the property is confiscated, and the nature of that hardship:

      • (v) [any other matter specified by the court].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Form 16
Notice to interested persons that court to consider making instrument forfeiture order

Section 142E, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [every person (other than the offender) whose name was included in the prosecutor's notice given to the court under section 142B of the Sentencing Act 2002, and any other person who the prosecutor believes has an interest in the property in question]

and

To the Commissioner

This document notifies you that—
  • 1 In the [specify] Court at [place, date], [offender's full name] was convicted of the following qualifying instrument forfeiture offence(s): [specify].

  • 2 The court, in a document signed on [date], directed the prosecutor to issue and serve this notice that the following property may be made the subject of an instrument forfeiture order: [details of property specified in the prosecutor’s notice given under section 142B of the Sentencing Act 2002, including the names of any persons having an interest in that property and the nature and extent of that interest].

  • 3 You may, within 10 working days of the date of this notice, apply to the court for relief.

  • 4 The grounds on which you may apply to the court for relief are set out in section 77(1)(a) and (b) of the Criminal Proceeds (Recovery) Act 2009, and are that—

    • (a) you claim an interest in any of the property described in this notice; or

    • (b) having regard to all the circumstances, undue hardship is reasonably likely to be caused to you or another person (other than the person who has been convicted of the qualifying forfeiture offence to which this notice relates) by the operation of the instrument forfeiture order.

Date:

Signature:

Prosecutor: [name and description]


Form 17
Order to enter on register notice of possible instrument forfeiture order

Section 142D(2), Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [the authority responsible for administering the New Zealand enactment that enables the registration of title to, or charges over, the specified property]
  • 1 The court on [date] gave a direction under section 142C of the Sentencing Act 2002 relating to, and will on [date] consider making an instrument forfeiture order under section 142N of the Sentencing Act 2002 against, the following property: [specify].

  • 2 The court by this order requires you to enter on the register a note of the fact that the court will consider whether an instrument forfeiture order may be made against that property.

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Sealed: [date]


Form 18
Order to cancel entry on register noting possible instrument forfeiture order

Section 142D(3), Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [the authority responsible for administering the New Zealand enactment that enables the registration of title to, or charges over, the specified property]
  • 1 You were required by an order of the court made under section 142D(2) of the Sentencing Act 2002 on [date] to make an entry on the register noting that the court was to consider whether an instrument forfeiture order under section 142N of the Sentencing Act 2002 may be made against the following property: [specify].

  • 2 The court by this order requires you to cancel any entry made on the register in accordance with that order.

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Sealed: [date]


Form 19
Direction to provide further information to court

Section 142F, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [prosecutor's full name, the offender, or any person who applies for relief]
  • 1 The court on [date] gave a direction under section 142C(a) of the Sentencing Act 2002 relating to, and will on [date] consider whether an instrument forfeiture order under section 142N of that Act may be made against, the following property: [details of property specified in the prosecutor’s notice given under section 142B of the Sentencing Act 2002, including the names of any persons having an interest in that property and the nature and extent of that interest, and summarising how, in the prosecutor’s opinion, the particular property was used to commit, or to facilitate the commission of, the particular qualifying instrument forfeiture offence(s)].

  • 2 You are required by this direction to provide to the court before [deadline] further information about the following matter(s):

  • Select the paragraph(s) that apply.

    • (a) the value of the property that constitutes the instrument of crime:

    • (b) the nature, extent, and value of [offender's full name]'s interest in the property that constitutes the instrument of crime:

    • (c) the name of any other person with an interest in the instrument of crime, the nature and extent of that person’s interest, and whether or not that person has been notified of the proceedings:

    • (d) the name of any person who may suffer undue hardship if the property is confiscated, and the nature of that hardship:

    • (e) [any other matter specified by the court].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Form 20
Order requiring offender or other person to complete declaration of ownership

Section 142H, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [full name of offender or other person ordered to complete declaration]
  • 1 The court on [date] gave a direction under section 142C of the Sentencing Act 2002 relating to, and will on [date] consider whether an instrument forfeiture order under section 142N of that Act may be made against, the following property: [details of property specified in the prosecutor’s notice given under section 142B of the Sentencing Act 2002].

  • 2 You are required by this order to complete a declaration of ownership specifying the following matters:

    • (a) whether, at [date of offender's conviction for the qualifying instrument forfeiture offence], [offender's full name] owned, or had any interest in, the following property: [specify property]:

    • (b) whether, at [date of offender's conviction for the qualifying instrument forfeiture offence] any other person owned, or had an interest in, [specify property], and, if so, the name of that person and the nature of that interest:

    • (c) whether [offender's full name] ceased to be the owner of, or to have any interest in, the following property at any time subsequent to the commission of the offence but before [date of offender's conviction for the offence]: [specify property]:

    • (d) if the offender disposed of his or her interest in the property in question during the period referred to in paragraph (c), to whom the ownership or interest in the property was disposed, the relationship of that person to [offender's full name], and the consideration received by [offender's full name].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Sealed: [date]


Form 21
Declaration of ownership

Section 142H, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To the Registrar

and

To [every person who has given an address for service]

I, [full name, address, occupation], declare the following:

  • 1 For this paragraph omit any statement that does not apply.

  • Statement A
  • At [date of offender's conviction for the qualifying instrument forfeiture offence] [offender's full name] owned, or had an interest in, the following property: [specify which, if any, of the property referred to in the order for declaration of ownership that the offender owned or had an interest in].

  • Statement B
  • At [date of offender's conviction for the qualifying instrument forfeiture offence] [offender's full name] did not own or have an interest in the following property: [specify which, if any, of the property referred to in the order for declaration of ownership that the offender owned or had an interest in].

  • 2 For this paragraph omit any statement that does not apply.

  • Statement A (repeat for as many other people as have an interest)
  • At [date of offender's conviction for the qualifying instrument forfeiture offence] [full name] owned, or had an interest in, the following property: [specify which, if any of the property referred to in the order for declaration of ownership that the person named owned or had an interest in and the nature of that interest].

  • Statement B
  • At [date of offender's conviction for the qualifying instrument forfeiture offence] no other person owned, or had an interest in, the following property: [specify which, if any of the property referred to in the order for declaration of ownership that no other person owned or had an interest in].

  • 3 For this paragraph select the statement that applies.

  • Statement A
  • [Offender's full name] ceased to be the owner of, or to have an interest in, the following property at a time subsequent to the commission of the offence but before [date of offender's conviction for the qualifying instrument forfeiture offence]: [specify the relevant property, referred to in the order for declaration of ownership, the offender's ownership or interest in which was disposed of, the person to whom it was disposed of, the relationship of that person to the offender, and the consideration received by the offender].

  • Statement B
  • There is no property that [offender's full name] ceased to be the owner of, or to have an interest in, at a time subsequent to the commission of the offence but before [date of offender's conviction for the qualifying instrument forfeiture offence].

Sworn/Affirmed* at [place, date]

Before me: [name, signature]

*Select one.

(a solicitor of the High Court of New Zealand or Registrar/Deputy Registrar* of a District/the High* Court or Justice of the Peace)

*Select one.

Form 22
Instrument forfeiture order

Section 142N, Sentencing Act 2002 and sections 70 and 71, Criminal Proceeds (Recovery) Act 2009

Complete and insert the heading as set out in form 13.

To [full name] (the prosecutor)

and

To [full name] (the offender)

and

To the Commissioner

and

To the Official Assignee

and

*To [every other person who has given an address for service, or who is named in the notice given to the court under section 142B of the Sentencing Act 2002, or who is or may be affected by the order, or who the court directs is to be served]

*Omit if it does not apply.

and

To the Official Assignee

  • 1 At [place, date] the court made the following instrument forfeiture order under section 142N of the Sentencing Act 2002:

    The following property is subject to this instrument forfeiture order and therefore, under section 70(1)(a) and (b) of the Criminal Proceeds (Recovery) Act 2009, vests in the Crown absolutely (subject to the interests protected by section 70(2) of that Act), and is in the Official Assignee's custody and control: [specify the forfeited property in a comprehensive list, with a description adequate to identify each asset and, for property (other than money), specify (in accordance with section 142N(4) of the Sentencing Act 2002) the amount that the court considers to be the value of that property at the time this order is made].

  • 2 Include this paragraph only if the court, by this order, makes or gives any further declarations or directions under section 142N(3)(a), (3)(b), or (5) of the Sentencing Act 2002 or section 71(1)(a) or (b) of the Criminal Proceeds (Recovery) Act 2009.

    The court made or gave the following declarations or directions: [specify].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Sealed: [date]


Form 23
Warrant authorising officer of court to search for and seize document(s) to effect transfer of property

Section 71(2) and (3), Criminal Proceeds (Recovery) Act 2009

To [full name] (an officer of the court directed by the court)

  • 1 I am satisfied, on an application in writing made on oath under section 71(2) and (3) of the Criminal Proceeds (Recovery) Act 2009 by [name of applicant for warrant], an officer of the court, that there are reasonable grounds for believing that there is in or on/will come into or onto* [address or other description of the place of thing], while the warrant is in force, the following document(s) required to effect the transfer of property subject to an instrument forfeiture order: [specify].

    *Select one or include both if appropriate.
  • 2 This warrant authorises you—

    • (a) to enter and search the place or thing specified in the warrant, and any item or items found in that place or thing, at any time that is reasonable in the circumstances:

    • (b) to request any person to assist in the execution of the warrant:

    • (c) to use any force that is reasonable for the purpose of executing the warrant:

    • (d) to seize any thing authorised by the warrant:

    • (e) to bring and use in or on the place or thing searched any equipment, to use any equipment found on the place or thing, and to extract any electricity from the place or thing to operate the equipment that is reasonable to use in the circumstances, for the purposes of executing the warrant:

    • (f) to copy any document, or part of a document, that may be seized under the warrant:

    • (g) to require any person to reproduce, or to assist the person executing the warrant to reproduce, in useable form, any information recorded or stored in any document that may be seized under the warrant:

    • (h) to take photographs or video recordings of the place or thing searched, and of any thing found in that place, if the person executing the warrant has reasonable grounds to believe that the photographs or video recordings may be relevant in any proceedings arising from the execution of the warrant.

  • 3 The power to enter and search pursuant to this warrant may be exercised [specify the number of times that, or the period over which, the warrant may be executed] within [specify a period not exceeding 14 days] from the date of issue of this warrant.

  • 4 Omit this paragraph if it does not apply.

    This warrant is issued subject to the following condition(s): [specify any conditions specified by the Judge under section 116(3)(b) of the Criminal Proceeds (Recovery) Act 2009 (as applied by section 71(3) of that Act)].

Date:

Signature:

(District/High Court Judge*)

*Select one.

Form 24
Application for relief from instrument forfeiture order

Section 142J, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To the Registrar

and

To [full name] (the prosecutor)

and

To [full name] (the offender)

and

To the Commissioner

and

To the Official Assignee

and

*To [every other person who has given an address for service, or who is named in the notice given to the court under section 142B of the Sentencing Act 2002, or who is or may be affected by the order, or who the court directs is to be served]

*Omit if it does not apply.
  • 1 [Full name] (the applicant) by this document applies to the court for an order for relief from an instrument forfeiture order that the court may make in respect of [specify property]/the court made on [date] in respect of [specify property]*.

    *Select one.
  • 2 For this paragraph select the statement that applies.

    Statement A

    This application for relief is made, in accordance with section 142L of the Sentencing Act 2002, on the ground set out in section 77(1)(a) of the Criminal Proceeds (Recovery) Act 2009. If the court is satisfied, following a hearing under section 142K of the Sentencing Act 2002, that the applicant has established on the balance of probabilities that the applicant has an interest in the following property to which the instrument forfeiture order relates, namely, [specify the property and the applicant’s interest, including whether the interest is severable and, if it is not, its value], and was not involved in the qualifying instrument forfeiture offence to which the instrument forfeiture order relates, the applicant will seek an order—

    • (a) declaring that [applicant's full name]'s interest in the property is as follows: [specify the nature, extent, and value of the interest]; and

    • (b) For this paragraph select the statement that applies.

      Statement (i)

    • directing the Crown to transfer that interest to [applicant's full name]:

    • Statement (ii)

      declaring that there is payable by the Crown to [applicant's full name] [an amount equal to the value of the interest declared by the court]:

    • Statement (iii)

      directing that the interest not be included in any instrument forfeiture order made in respect of the proceedings that gave rise to this application: [specify the property and/or the severable interest in that property that is not to be included in the instrument forfeiture order]:

    • Statement (iv)

      determining, in accordance with section 142N, not to make an instrument forfeiture order.

  • Statement B

    This application for relief is made, in accordance with section 142M of the Sentencing Act 2002, on the ground (of undue hardship) set out in section 77(1)(b) of the Criminal Proceeds (Recovery) Act 2009. If, following a hearing under section 142K of the Sentencing Act 2002, the court is satisfied that, having regard to all the circumstances, undue hardship is reasonably likely to be caused to [full name of applicant or of another person (other than the offender)] by the operation of an instrument forfeiture order if relief is not granted, the applicant will seek—

    • (a) an order that [full name] is entitled to be paid $[amount] out of the proceeds of sale of the property:

    • (b) Omit this paragraph if it does not apply.

      [specify any additional orders made for the purpose of ensuring the proper application of an amount to be paid to a person under the age of 18 years].

  • 3 The application is also made in reliance on [specify any other enactment, principle of law, or judicial decision relied on].

Date:

Signature:

(solicitor for applicant/counsel for applicant/applicant*)

*Select one.

This application is filed by [name of applicant if filing in person, or name of solicitor or counsel representing applicant].

Address for service: [address].


Form 25
List of persons served with notice of application for relief from instrument forfeiture order

Section 142J(4), Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To the Registrar

and

To [full name] (the prosecutor)

Notice of [full name]'s application for an order for relief from an instrument forfeiture order has been served on the following persons: [specify persons, and whether (and, if so, why) served in accordance with section 142J(3)].

Date:

Signature:

(solicitor for applicant/counsel for applicant/applicant*)

*Select one.

Form 26
Order for relief from instrument forfeiture order

Sections 142L and 142M, Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To [full name] (the applicant)

and

To [full name] (the prosecutor)

and

To [full name] (the offender)

and

To the Commissioner

and

To the Official Assignee

and

*To [every other person who has given an address for service, or who is named in the notice given to the court under section 142B of the Sentencing Act 2002, or who is or may be affected by the order, or who the court directs is to be served]

*Omit if it does not apply.
  • 1 The application for an order for relief from an instrument forfeiture order made by [full name] on [date] was determined by the Honourable Justice/Judge* [name] on [date].

    *Select one.
  • 2 That application was determined, as required by section 142K of the Sentencing Act 2002, following a hearing concerning the instrument forfeiture order or a sentencing hearing held on [date(s)] at which the following people appeared: [List names of counsel or solicitors who represented the respective parties at the hearing and state whether any party appeared in person at the hearing.]

  • 3 For this paragraph select the statement that applies.

    Statement A

    The application was made, in accordance with section 142L of the Sentencing Act 2002, on the ground set out in section 77(1)(a) of the Criminal Proceeds (Recovery) Act 2009. The court was satisfied that the applicant established on the balance of probabilities that the applicant has an interest in the following property to which the instrument forfeiture order relates, namely, [specify the property and the applicant’s interest, including whether the interest is severable and, if it is not, its value], and was not involved in the qualifying instrument forfeiture offence to which the instrument forfeiture order relates. The court therefore made the following order for relief from the instrument forfeiture order:

    • (a) [applicant's full name]'s interest in the property is as follows: [specify the nature, extent, and value of the interest]; and

    • (b) For this paragraph select the statement that applies.

    • Statement (i)

      the Crown is directed to transfer that interest to [applicant's name]:

    • Statement (ii)

      there is payable by the Crown to [applicant's name] [an amount equal to the value of the interest declared by the court]:

    • Statement (iii)

      the interest must not be included in any instrument forfeiture order made in respect of the proceedings that gave rise to this application: [specify the property and/or the severable interest in that property that is not to be included in the instrument forfeiture order]:

    • Statement (iv)

      the court has determined, in accordance with section 142N of the Sentencing Act 2002, not to make an instrument forfeiture order.

  • Statement B

    The application was made, in accordance with section 142M of the Sentencing Act 2002, on the ground (of undue hardship) set out in section 77(1)(b) of the Criminal Proceeds (Recovery) Act 2009. The court was satisfied that, having regard to all the circumstances, undue hardship was reasonably likely to be caused to [full name of applicant or of another person (other than the offender)] by the operation of an instrument forfeiture order if relief was not granted. The court therefore made the following order(s) granting relief from the instrument forfeiture order:

    • (a) an order that [full name] is entitled to be paid $[amount] out of the proceeds of sale of the property:

    • (b) Omit this paragraph if it does not apply.

      [specify any additional orders made for the purpose of ensuring the proper application of an amount to be paid to a person under the age of 18 years].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Sealed: [date]


Form 27
Notice of application for leave to apply out of time for relief from instrument forfeiture order

Section 142J(2)(c)(iii), Sentencing Act 2002

Complete and insert the heading as set out in form 13.

To the Registrar

and

To [full name] (the prosecutor)

and

To [full name] (the offender)

and

To the Commissioner

and

To the Official Assignee

and

*To [every other person who has given an address for service, or who is named in the notice given to the court under section 142B of the Sentencing Act 2002, or who is or may be affected by the order, or who the court directs is to be served]

*Omit if it does not apply.
This document notifies you that—
  • 1 [Full name] will on [date] apply to the court under section 142J(2)(c)(iii) of the Sentencing Act 2002 for leave to apply out of time for relief from an instrument forfeiture order.

  • 2 The grounds on which the application is to be made are: [specify].

Date:

Signature:

(solicitor for applicant/counsel for applicant/applicant*)

*Select one.

This notice of application is filed by [full name of applicant if filing in person, or name of solicitor or counsel representing applicant].

Address for service: [address].


Rebecca Kitteridge,
Clerk of the Executive Council.


Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.

These regulations, which come into force on 1 December 2009, add to the Schedule of the Sentencing Regulations 2002 new forms relating to instrument forfeiture orders.

Instrument forfeiture orders are conviction-based orders under section 142N of the Sentencing Act 2002 that an instrument of crime or any part of it specified by the court be forfeited to the Crown.

An instrument of crime, as defined in section 5(1) of the Criminal Proceeds (Recovery) Act 2009, is in general terms property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.

A qualifying instrument forfeiture offence, as so defined, is in general terms an offence punishable by a maximum term of imprisonment of 5 years or more.

Sections 142A to 142Q of the Sentencing Act 2002 set out many aspects of the conviction-based forfeiture regime. However, certain procedural matters relating to the forfeiture of instruments of crime if a conviction has been or may be entered are set out in subpart 4 of Part 2 of the Criminal Proceeds (Recovery) Act 2009.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 22 October 2009.

These regulations are administered by the Ministry of Justice and the Department of Corrections.