Commissioner of Police v Abo Ganis

[2024] NZHC 2113

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-157 [2024] NZHC 2113

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KARIM MONIR MOHAMMED ABO GANIS

Respondent

Hearing:	31 July 2024
Appearances:	A Alcock for Applicant (via VMR)
Judgment:	31 July 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 31 July 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Hamilton Legal, Hamilton

COMMISSIONER OF POLICE v ABO GANIS [2024] NZHC 2113 [31 July 2024]

[1]    This is an application by the Commissioner of Police seeking a type 1 asset forfeiture order pursuant to ss 45, 49 and 50 of the Criminal Proceeds (Recovery) Act 2009 (CPRA). The asset in question is cash in the amount of $25,910 plus interest currently held in the New Zealand Police Trust Account, Hamilton, Westpac bank account.

[2]The order is sought on the grounds that the cash is tainted property because:

(a)it has wholly or in part been acquired as a result of significant criminal activity (being the sale and supply of controlled drugs, namely methamphetamine); and/or

(b)it has directly or indirectly been derived from significant criminal activity (being the sale and supply of controlled drugs, namely methamphetamine).

Background

[3]    The factual background is set out in the supporting affidavit sworn on 11 June 2024 by a police investigator attached to the Waikato/Bay of Plenty asset recovery unit based in Hamilton.

[4]    Following a police investigation into an alleged arson committed by the respondent and an associate on 19 March 2020, a search warrant was executed at the respondent’s home in Hamilton on 23 April 2020. During the search, police located the cash in the following quantities, totalling $25,910:

(a)within a black satchel in the lounge, $18,635 cash in multiple bundles, principally in twenty and fifty-dollar denominations, bound with rubber bands;

(b)on a shelf in the lounge, $6,100 cash in ten, twenty and fifty-dollar denominations, bound in bundles with rubber bands; and

(c)$1,175 cash found on the respondent during a search.

[5]    Police further located several items consistent with the sale of controlled drugs, notably a plastic snap lock bag with white powder later confirmed to be methamphetamine, electronic scales and unused plastic snap-lock bags.

[6]    Additionally, police located glassware in the form of beakers, conical flasks, acetone, iodine and chemicals typically found where the manufacture of methamphetamine is taking place.

[7]    As a result of the items that were found, and supported by further evidence sourced from text messages, the respondent was charged with possession of methamphetamine for supply, offering to supply methamphetamine, possession of methamphetamine, possession of precursors and equipment and materials with intent that it be used for the manufacture of methamphetamine, possession of firearms, possession of an offensive weapon, arson, male assaults female and common assault.

[8]    On 16 September 2020, the respondent pleaded guilty to the 13 charges. On 26 November 2020, he was sentenced to two years and five months’ imprisonment.1

[9]    On 15 November 2023, the respondent was examined pursuant to the provisions of the CPRA and gave an explanation that the cash had come from selling cars, cash building work, and some of the money from selling methamphetamine. However, the respondent could not provide information to substantiate the vehicles sold or cash building jobs. He admitted to buying and onselling sufficient quantities of methamphetamine to sustain his personal methamphetamine habit and using covert methods to avoid detention by authorities.

[10]Police investigations do not disclose any other legitimate source for the cash:

(a)in the years between 2017 and 2021, the respondent received an average gross yearly income of approximately $23,000, as confirmed by the Commissioner of Inland Revenue;

1      R v Abo Ganis [2020] NZDC 24752.

(b)the respondent was a sole director of a construction company between 2017 and 2022, but that company filed only one tax return for the year ending 31 March 2017 declaring a gross loss, and the company has an outstanding debt with the Commissioner of Inland Revenue of

$22,436.21; and

(c)an analysis of the respondent’s bank accounts did not provide any evidence of cash withdrawals consistent with the sums found.

Relevant legal provisions

[11]   Pursuant to s 50(1) of the CPRA, if the Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make a type 1 assets forfeiture order in respect of that property.

[12]Tainted property is defined in s 5 of the CPRA as:

(a)any property that has, wholly or in part, been acquired as a result of significant criminal activity; or 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 one activity if at least one of those activities is a significant criminal activity.

[13]Significant criminal activity is defined in s 6 of the CPRA as:

(1)  In this Act, unless the context otherwise requires significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—

(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

(b)from which property, proceeds, or benefits of a value of the threshold amount [$30,000 pursuant to s 5] or more have, directly or indirectly, been acquired or derived.

…

[14]   The sale or supply of the class A controlled drug methamphetamine has a maximum penalty of life imprisonment and is a “significant criminal activity” as defined by s 6 of the CPRA.

Analysis

[15]   The applicant has supplied proof that the application has been personally served on Mr Abo Ganis. Mr Abo Ganis has not filed any notice of opposition or taken any steps in this proceeding. No issues of undue hardship have been raised.

[16]   On the basis of the evidence described above, I am satisfied on the balance of probabilities that the cash found of $25,910 is tainted property, having been acquired, or directly or indirectly derived, from the respondent’s involvement in significant criminal activity, namely supplying methamphetamine.

Result

[17]   Accordingly, I grant the type 1 assets forfeiture order in terms of the draft order supplied with the application.

O’Gorman J