COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 162

COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 162 [9 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-669[2023] NZHC 162BETWEEN THE COMMISSIONER OF POLICEApplicantAND SAMI ZAGROSFirst RespondentHYPER TRADE LIMITEDSecond RespondentANZ BANK NEW ZEALAND LIMITEDFirst Interested PartyANDRE FRANCIS JAMESSecond Interested PartyHearing: (Determined on the papers)Counsel: S J Mallett for ApplicantA M S Williams and K E Bucher for First RespondentJudgment: 9 February 2023JUDGMENT OF EATON J[1] Applications brought by the Commissioner of Police seeking a profit forfeitureorder and, in the alternative, an assets forfeiture order, were set down to be heardbefore me in a two-day hearing commencing 7 February 2023.[2] On 1 February 2023, I heard and dismissed an application brought on behalfof Mr Zagros to adjourn the hearing. During the course of the adjournment applicationMr Mallett, on behalf of the Commissioner, advised that a settlement offer, wherebythe profit forfeiture order was abandoned and an assets forfeiture order made,remained on the table.[3] On 2 February 2023, a consent memorandum was filed, signed by Mr Zagrospersonally, consenting to the making of an asset forfeiture order in terms of a draftorder filed by Mr Mallett. An accompanying email confirmed that no hardshipapplication was to be pursued by Mr Zagros and that all matters had been settled asbetween the parties.[4] In a supporting memorandum dated 3 February 2023, Mr Mallett confirms thathaving reached agreement as to an assets forfeiture order, the application for the profitforfeiture order is formally abandoned.[5] I agree with counsel that because Mr Zagros has consented to the making ofthe assets forfeiture order, the Court is not required to approve a settlement under s 95of the Criminal Proceeds (Recovery) Act 2009 (the Act).[6] I have considered the evidence of Detective Sergeant Patten filed in support ofthe application for the profit and assets forfeiture orders. Pursuant to s 50 of the Act,the Court must make an assets forfeiture order in respect of specific property ifsatisfied on the balance of probabilities that specific property is tainted.1 "Taintedproperty" is defined in s 5 of the Act as:tainted property—(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 criminalactivity; and(b) includes any property that has been acquired as a result of, or directlyor indirectly derived from, more than 1 activity if at least 1 of thoseactivities is a significant criminal activity[7] "Significant criminal activity" is defined in s 6 of the Act as:1 Criminal Proceeds (Recovery) Act 2009, s 50.6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significant criminalactivity means an activity engaged in by a person that if proceededagainst as a criminal offence would amount to offending—(a) that consists of, or includes, 1 or more offences punishable bya maximum term of imprisonment of 5 years or more; or(b) from which property, proceeds, or benefits of a value of$30,000 or more have, directly or indirectly, been acquired orderived.(2) A person is undertaking an activity of the kind described in subsection(1) whether or not—(a) the person has been charged with or convicted of an offencein connection with the activity; or(b) the person has been acquitted of an offence in connection withthe activity; or(c) the person's conviction for an offence in connection with theactivity has been quashed or set aside.(3) Any expenses or outgoings used in connection with an activity of thekind described in subsection (1) must be disregarded for the purposesof calculating the value of any property, proceeds, or benefits undersubsection (1)(b).[8] I am satisfied that the property referred to at para [12] below is tainted propertyas it was acquired as a result of, or derived directly or indirectly from, significantcriminal activity. In consenting to the assets forfeiture order, Mr Zagros concedes thateach item of property is tainted.[9] As highlighted by counsel for the Commissioner, the 2016 Mercedes-BenzC300, registration KRG429, was registered to Hyper Trade Limited (HTL). I amsatisfied that Mr Zagros was in control of HTL and was a beneficial owner of its assetsand, therefore, able to consent to the forfeiture of that vehicle and funds held in HTLbank accounts.[10] The 2015 Mercedes-Benz A250, registration LPW325 is registered in the nameof Andre Francis James. The evidence satisfies me that vehicle was used by Mr Zagrosand in his possession at the time of restraint and seizure. Mr James has since fledNew Zealand. The evidence confirms the car was being used by Mr Zagros' co-offender to transport drugs from Auckland and that co-offender then provided the carto Mr Zagros. Notably, no other party has claimed interest in this vehicle,notwithstanding it having being restrained over the past four and a half years.[11] The Ducati road bike registration B3KBP was found in Mr Zagros' possessionand he was identified discussing that motorbike in intercepted communications. It isregistered in the name of Sanmar Bigy. I am satisfied that is an alias used by MrZagros.[12] In the circumstances, I am satisfied that an assets forfeiture order is appropriatein relation to each of the assets as set out below.(a) 2016 Mercedes-Benz C300 motor vehicle registration KRG429,registered to the former second respondent, Hyper Trade Limited (nowremoved from the Companies Register), valued at $16,000.00;(b) 2015 Mercedes-Benz A250 motor vehicle registration LPW325,registered to the second interested party, Andre Francis James, but inthe possession and under the effective control of the first respondent,valued at $6,000.00.(c) 2013 Ducati Monster 659 road bike, registration B3KBP, registered toSanmar Bigy (an alias of the first respondent), valued at $5,000.00;(d) cash located at the respondent's address at 3/69 Derby Street,Christchurch, totalling $179,054.40 (plus any accrued interest);(e) all funds held at the time of restraint in ANZ Bank New ZealandLimited bank accounts in the following names and account numbersand with the following balances as at 6 September 2018, plus anyinterest accrued:(i) Hyper Trade Limited06-0821-0940374-00 Balance $465.8706-0821-0940374-05 Balance $123,103.98(ii) Mr Sami Zagros06-0821-0937503-00 Balance $5,414.11(f) Five items of jewellery, three seized from the first respondent's addressat 3/69 Derby Street, Christchurch, and two from the personal propertyof the first respondent, together valued at between $8,600.00 and$45,200.00. The items are as follows:(i) gold bracelet;(ii) gold necklace; and(iii) three gold rings.[13] The application for a profit forfeiture order is dismissed. No order for costs ismade....................................................Eaton JSolicitors/Counsel:Crown Solicitor's Office, ChristchurchAnselm Williams, Christchurch