David Fisher is a senior reporter for the NZ Herald.

Gold dealer's fight for $4m home taken as criminal bounty

Gold in the carpark

It's a funny place to weigh your gold, but for Rob Burgess the second-hand business has always had its oddities.

So he sat in his car in the parking lot outside a West Auckland hardware store, with wife Llannys, and waited.

Soon enough, a familiar face emerged. The undercover police officer would be called "Billy" in the court cases.

Waved into the car, Billy handed over gold jewellery. There was a 62 gram bangle and two gold earrings, all nine carat quality.

Rob Burgess weighed the gold on his scales as his wife got the cash out. A few bills went to Billy for the earrings but the sheaf of $100 bills (stapled) went to her husband.

He checked the figures on the scales and handed six $100 bills to Billy.

Billy: "You won't put this in your shop on display will you?"

Rob Burgess: "F*** no Billy, we're not that stupid, this will go straight into the melting pot."

Llannys Burgess: "We wouldn't do that to you."

Rob Burgess: "It all goes into the melt Billy, we all got to make a buck."

That's how the police say the Burgesses operated, and that's what the courts accepted.
The second-hand dealer's own evidence was dismissed - both he and Llannys were found to be less than credible.

Avondale secondhand jewellery and antique dealer Rob Burgess in 2010, around the time of his arrest for receiving stolen goods. Photo / Dean Purcel
Avondale secondhand jewellery and antique dealer Rob Burgess in 2010, around the time of his arrest for receiving stolen goods. Photo / Dean Purcel

In one of the many court hearings that followed, Burgess was told he was an "active fence", that the evidence showed he bought stolen jewellery and sold it.

"Many people would have been affected by the theft of the jewellery", Burgess would be told in court. They would have lost precious items with "strong sentimental value". As the fence, he "contributed to the loss suffered by the owners of it and facilitated the criminal activities of the thieves".

Burgess said he expected a 12-month home detention sentence. He was planning on serving his time on the north-west Auckland lifestyle block he and his wife bought after years of running Rob's Traders in Avondale.

Instead, he was sent away for three years. And the lifestyle block? Well, even though convicted on charges worth $250,000, the police took a second court case after he had been convicted which looks likely to strip Burgess of almost every asset he and his wife have.

"If I'd known that I wouldn't have pleaded guilty to nothing. I lose my whole life. The Crown are not giving me one f****** cent. I tell you, it leaves you in the darklands.

"I thought once I'd been to jail that would be it. Not these pricks, they come at you twice. I've worked my whole life and I've got nothing to show for it."

It all goes back to breeding goats

The plight of Rob Burgess can be traced back to another son of West Auckland.
Peter "Pedro" Cleven was put on trial in 2002, accused of making his fortune selling drugs over the course of 12 years.

He had what he called a "movie star" lifestyle - a mansion in Titirangi, fast cars and motorcycles and plenty of cash.

But while police called him a drug dealer, Cleven called himself a businessman. When the police talked about methamphetamine, Cleven talked goat sex - he claimed his money came from hard work and clever investments, including animal husbandry.

Peter Cleven after his acquittal on drugs charges at the Auckland High Court in 2002. Photo / Glen Jeffrey
Peter Cleven after his acquittal on drugs charges at the Auckland High Court in 2002. Photo / Glen Jeffrey

The Crown failed to convince the court and Cleven walked free.

Police were disappointed with the outcome and a proposal for a new way of dealing with the money of suspected criminals was developed.

By 2009, the new way was law - those suspected of having accrued assets outside the law could be forced to prove they were earned lawfully.

If they could not, the assets would go. The Crown could use the courts to legally confiscate anything that couldn't be verified as 100 per cent lawful.

In seven years since, police seized 110 homes worth $34.5m, cash and bank deposits worth $27m, four farms or orchards worth $7.6m, 234 cars and 97 motorcycles worth $5.6m, eight commercial businesses worth $4.3m and a dozen lifestyle blocks valued at $3.9m. The money is put back into law enforcement.

Defence lawyers say the police are pushing the envelope while those in prosecution say it is becoming increasingly clear how criminals derive profit from crime.

This week it emerged police have been given permission to go even harder. Police Minister Paula Bennett told the Herald officers had been asked to almost double the amount seized using proceeds-of-crime legislation.

She said police were on track to seize $230m worth of tainted cash and assets over the next four years but have now been set a target of $400m.

"We want to send a strong message to criminals that we won't tolerate them profiting by victimising other people, whether that's by selling drugs, burglary of theft."

Caught out by a cash lifestyle

Second-hand dealer Rob Burgess at his family home in Taupaki, west Auckland. He is about to have the property confiscated after being convicted of fencing stolen goods. Photo / Dean Purcel
Second-hand dealer Rob Burgess at his family home in Taupaki, west Auckland. He is about to have the property confiscated after being convicted of fencing stolen goods. Photo / Dean Purcel


Rob Burgess says he never had a bank account. "I'm not interested in a bank account. There's no law against paying cash."

He was more than a little stumped when police asked him to prove how he'd bought the house, how the renovations had been paid for, where the Corvette had come from.

He claims none of it was bought with tainted funds. In fact, he claims there were no tainted funds despite his guilty plea - a position he has failed to have accepted in court at every opportunity since his arrest in 2010.

There were initially nine charges. They were folded into a single representative charge related to jewellery worth $250,000. While police talked about there being much more at stake, judge Geoff Rea made it clear to the court Burgess could be sentenced only on the charge to which he had pleaded.

That meant the other evidence, which put the value of melted-down gold at $1.6m, had no relevance during the criminal proceedings.

What Burgess didn't expect was the value that evidence would have to police who were eager the "fence" wouldn't profit from his crimes.

Burgess said he was starting to serve his time when he was struck by the full impact of the Criminal Proceeds (Recovery) Act.

Instead of strongly denying any criminality, which he continues to do, Burgess found he had to provide evidence of how he had earned his wealth to keep it.

The burden of proof

Burgess' lawyer Shane Kilain says there is a reverse burden of proof. It shifts from the Crown having to prove the accused is guilty to the accused having to prove his cash and other assets are his.

For Burgess, the process was massively dispiriting. He never used bank accounts, always paid cash and never had enough records to satisfy a judge he was telling the truth.

The lifestyle property was bought in 2006. Two other homes were built on it for the Burgess' children. He would have it that they paid shares on the mortgage. The court said the paperwork didn't support the claim.

The police case went further. He didn't just lose the money used to pay for the house in 2006 but would also lose any value it had gained since then.

Burgess reckoned the house was worth $3m-$4m, which will go to the Government aside from a few hundred thousand his wife has clawed back. The court order targeting assets includes not only the value of the asset when it was bought but any profit made on it.

Avondale secondhand jewellery and antique dealer Rob Burgess in 2010, around the time he was arrested for receiving stolen goods. Photo / Dean Purcel
Avondale secondhand jewellery and antique dealer Rob Burgess in 2010, around the time he was arrested for receiving stolen goods. Photo / Dean Purcel


It also includes the hours of work Burgess has put into improving the property by planting hundreds of trees, digging a large pond and adding two dwellings.

Gone. Just like the tractor, the Corvette, the $20,000 in cash found in the safe.

"They're just taking everything from you and leave you with nothing. The New Zealand public need to know all of this. It's going on all the time.

"I was never involved in drugs and that's what the legislation was meant to be for. Now they use it for everything."

At one stage, perhaps a little optimistically, Burgess went to his local MP John Key for help. "They didn't want to know," he said. "It's really affected us mentally. It just goes on and on. It never stops. The stress has been horrendous."

During the course of the case, Llannys Burgess had undergone major surgery to deal with cancer and her husband struggled with a heart condition.

"You just become a number. They don't give a f*** about anything or anyone," he said.

Burgess believed the property was in police sights from the beginning, claiming one of the officers who turned up to arrest him asking: "How can you afford a place like this?"

The use of the proceeds of crime legislation sees assets restrained, meaning there is limited funding available to pay for lawyers to challenge it.

"Once they've taken all your assets, you've got nothing to fight with."

Llannys Burgess had $350,000 her husband called "life savings" which was spent, unsuccessfully, trying to rebut "these ridiculous charges".

Rob Burgess and his wife Llannys in Rob's Traders in Avondale, prior to his arrest over receiving stolen goods. Photo / Supplied
Rob Burgess and his wife Llannys in Rob's Traders in Avondale, prior to his arrest over receiving stolen goods. Photo / Supplied


Burgess has not backed down on his denials, calling the police case "completely, utterly, unbelievably unfair".

"The public don't see all this. They only see what the police say.

"I'm guilty of not writing it in the book. It was never tainted money. I don't have a bank account. I do everything manually."

Burgess, who says he has no criminal record other than a conviction for growing cannabis from 1977, is at a loss. The moment the house is sold, he and his family have 42 days to leave.

"I don't know what I'm going to do. I won't even be able to afford to rent a place. I've got to find somewhere for the animals as well.

"Why was I put in prison? Wasn't that my punishment? When is enough, enough? For the Crown, it's never enough."

This is the new world of asset seizure

This is the new landscape, more complicated and dangerous than ever for those looking to break the law for financial gain.

Not only have ministers set a higher target, but police have increased both their expertise and the number of dedicated staff focused on seizing assets.


Asset recovery boss Detective Senior Sergeant Craig Hamilton said there had been no change in approach but police had "strengthened our ability to target and recover the proceeds of crime".

He said the ability to take property acquired through criminal means put people off breaking the law because of "the considerable financial consequences when their assets are seized or forfeited".

Burgess' lawyer Kilian says the law is "one of the most draconian pieces of legislation in New Zealand".

The scheme, as he describes it, has a Wild West feel to it - police assessing value without having a financial background, using different methods to make those assessments and even using data from third-party sources to work out a proximate level of allegedly ill-gotten gain.

"The legal test therefore requires people to keep the same standard of accounting records for their personal affairs as you would there businesses."

And what chance of that? "Almost impossible" reckons Kilian. "Thinking of your own personal affairs, how many documents do you keep for every asset that you personally own?"

- NZ Herald

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