Commissioner of Police v Al Budeiri

[2025] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-602

[2025] NZHC 2474

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 17A, 33, 34 and 35

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

IBRAHIEM JASSIM AL BUDEIRI

Respondent

ZAKARYA JASSIB JASSEM
First Interested Party

WAIMAATOA HEIDI HIRA

Second Interested Party

KELLY MATENGARO HIRA

Third Interested Party

On the papers:
Counsel:	E M Ferrier and H E Savage for Applicant
Judgment:	28 August 2025

JUDGMENT OF GRAU J

Introduction

[1]    The Commissioner of Police (the Commissioner) applies for effective control and sale orders under ss 17A and 33–35 of the Criminal Proceeds (Recovery) Act 2009 (the Act). The application, which is unopposed, has been referred to me to determine on the papers.

COMMISSIONER OF POLICE v BUDEIRI [2025] NZHC 2474 [28 August 2025]

[2]The following two vehicles are the subject of the applications:

(a)A black Nissan Skyline GTR Sports motor vehicle including ignition keys, registration JZZ594 (VIN 7ATODH12X16000699), registered in the name of the first interested party, Zakarya Jassib Jassem (Nissan); and

(b)A white Toyota Corolla motor vehicle including ignition keys, registration MNT296, registered in the name of the third interested party, Kelly Matengaro Hira, (Toyota).

[3]    On 11 July 2024, Police executed a search warrant at the respondent’s address in Porirua, locating around 18 kilograms of cannabis in vacuum-sealed plastic bags inside the Nissan which was parked in his internal garage. Police also located $11,880 in cash in the respondent’s bedroom along with items commonly associated with drug dealing. When interviewed, the respondent acknowledged to Police that he had been selling cannabis for many years as he was struggling financially.

[4]    On 7 October 2024, the Court made a without notice restraining order over the cash, the Nissan and the Toyota.1 The Commissioner’s on-notice application for restraining orders was granted on 18 November 2024.2

[5]    On 8 July 2025, the respondent pleaded guilty to six charges, including charges of possession of cannabis for supply3 and supplying cannabis,4 for which he was sentenced to nine months’ home detention.5

The applications for effective control orders and sale orders

[6]    The Commissioner seeks an order under s 17A of the Act that the two restrained vehicles be treated as though the respondent has an interest in them, namely

1      Commissioner of Police v Budeiri HC Wellington CIV-2024-485-602, 7 October 2024 (Minute of Boldt J).

2      Commissioner of Police v Budeiri HC Wellington CIV-2024-485-602, 18 November 2024 (Minute of Gwyn J).

3      Misuse of Drugs Act 1975, s 6(1)(f) and (2); maximum penalty of eight years’ imprisonment.

4      Section 6(1)(e): maximum penalty of eight years’ imprisonment.

5      New Zealand Police v Budeiri [2025] NZDC 15811.

a legal or equitable estate or interest in the property, or a right, power or privilege in connection with the property.

[7]    The Commissioner says the respondent is the true owner of both vehicles. He is said to have effective control of them despite that they are registered in the names of other persons.

[8]    The Commissioner also seeks orders permitting the Official Assignee (OA) to sell the two vehicles, with the proceeds (after the costs associated with the sale are deducted) to be held by the OA as restrained property pending further order of the Court. Sale orders are sought to preserve the value of the restrained vehicles, which will otherwise be incurring storage costs and will depreciate in value in the time it will take for the Commissioner’s forfeiture application to be determined.

Discussion

Effective control

[9]    Section 17A empowers the Court to make effective control orders. The provision enables the Court to consider the real de-facto position of a respondent in relation to property, rather than any ownership structure that may disguise the true and effective control of the property.6 The Court must be satisfied on the balance of probabilities that the respondent is a true owner of the property.7 The Court may consider “the practical reality of ownership, rather than being limited by legal forms”.8 The fundamental question is whether, in fact, the respondent has the capacity to control, use, dispose of, or otherwise treat the property as their own.9

[10]The evidence in relation to the vehicles is as follows:

(a)The Nissan was located at the respondent’s address and the respondent said it had been parked there since he moved in, approximately

6      Solicitor-General v Bartlett [2008] 1 NZLR 87 (HC) at [24] and [27]; and Matthew Downs (ed)

Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at [CP17A.02].

7      Commissioner of Police v McGoldrick-Savaii [2018] NZHC 936 at [42].

8      Commissioner of Police v Read [2015] NZHC 2055 at [60].

9      At [60] citing Bartlett, above n 6, at [27] and Solicitor-General v Huang HC Auckland CIV-2005- 404-1538, 18 December 2007 at [70].

10 months earlier. In contrast, the address of the registered owner (the first interested party and the respondent’s brother) is believed to be in Christchurch. The respondent also initially told Police it was his vehicle, before correcting himself to say he owned it with his brother. The cannabis that the respondent has said was his, and he had been selling, was found inside the Nissan. The respondent said the registered owner was unaware it was there.

(b)The Toyota is registered in the name of the third interested party who lives in Hamilton and is believed to be the father of the respondent’s partner. The Toyota’s previous owner told Police he sold it to a female, whose name he thought might be “Wai”. The respondent’s partner’s name is Waimaatao. She paid $14,000 to $15,000 in cash. The Toyota was then registered in the third interested party’s name since 13 July 2024. However, no instances of him driving the vehicle since that date have been identified (although on some occasions the occupants were not identifiable). In contrast, the respondent has been observed either driving, or as a passenger in the Toyota, 10 times between 31 July and 21 September 2024.

[11]   That evidence suffices to satisfy me on the balance of probabilities that the first respondent is the true owner and user of the two vehicles. Accordingly, he had effective control of the two restrained vehicles such that they should be treated as if the respondent had an interest in them.

Sale orders

[12]   Section 33(1)(a) of the Act provides that further orders may be sought by the applicant for a restraining order. The Court may make any such order if it considers  it appropriate.10 This requires the Court to be satisfied that such an order should be made.

10     The Act, s 34(1).

[13]   Section 35 of the Act outlines the type of further orders the Court may make. They include, at s 35(e)(v), an order directing the OA to sell restrained property in order to preserve its value.

[14]   The reasons for making an order for sale to preserve value have been described by this Court in Commissioner of Police v Cavanagh.11 Typically sale orders are sought where restrained assets have high depreciation rates combined with storage and insurance costs which ultimately decrease the potential return to the Commissioner and/or the party claiming an interest in the assets.12 The additional benefit of sale is the ability of the OA to hold the funds from the sale in an interest-bearing account.

[15]   In Commissioner of Police v Drummond, Lang J considered that the following factors need to be taken into account when determining an application for sale order.13

… the nature and value of the asset, the length of time before the substantive proceeding will be determined, the extent to which the asset may depreciate during that period and the wishes of the owner of the assets and/or those who may have an interest in it.

[16]   The critical issue then is whether the value of the vehicles in this case are likely to be sufficiently eroded as a result of depreciation and/or holding costs such that their sale is appropriate to preserve value. That is not the only consideration, however.  If a vehicle is held as an investment or has some special sentimental value to the respondent, such costs may not be enough.14 As noted by counsel for the Commissioner, in Commissioner of Police v Warwick-Dalley this Court declined to grant the application for a sale order on the basis there was insufficient evidence that the vehicle would depreciate, and there was evidence the vehicle had special value to the respondent.15 McHerron J observed that, in applying Inland Revenue’s straight- line depreciation rate of 21 per cent for vehicles, the seven-years-old vehicle in that case would have zero value, which evidently was not the case.16

11     Commissioner of Police v Cavanagh [2014] NZHC 2978.

12 At [7].

13     Commissioner of Police v Drummond [2018] NZHC 1730, at [15].

14     See, for example, Commissioner of Police v Blance [2018] NZHC 108 at [52].

15     Commissioner of Police v Warwick-Dalley [2025] NZHC 272 at [13]–[16] and [24].

16     At [9]–[10].

[17]   The affidavit of Detective Mackenzie in support of the applications set out the estimated values of the two vehicles. Detective MacKenzie deposes the Nissan’s value (as at October 2024) is estimated at around $110,200, if it was in an average condition, and the Toyota’s at $17,450, again, if it was in average condition.

[18]   Despite the significant estimated value of the Nissan in this case, it has not been suggested that either vehicle is held as an investment, or has any special or sentimental value, or is a classic. While there may be an argument that the Nissan, dating back to 1995, has had its rate of depreciation bottom out, the same cannot be said for the Toyota, which dates to 2019. The application for an order for sale is also not opposed. Accordingly, I do not consider the circumstances here are comparable to those in Commissioner of Police v Warwick-Dalley. Instead, I accept the Commissioner’s submission that the vehicles will likely depreciate, even if potentially at a reduced rate for the Nissan. This depreciation combined with the maintenance, storage and insurance costs, means it is appropriate to order sale to ensure preservation of their value until final determination of the Commissioner’s forfeiture application. While that application is yet to be made, it is intended to be progressed now that the respondent’s associated criminal charges have been determined.

Result

[19]   Accordingly, as sought by the Commissioner, I make the following orders, which are unopposed:

(a)the Nissan and the Toyota vehicles, as described above at [2] are to be treated as though the respondent has an interest in them, namely a legal or equitable estate or interest in the property or a right, power or privilege in connection with the property; and

(b)the OA is to sell the Nissan and the Toyota;

(i)the Office of the Official Assignee is appointed to execute any deed or instrument in the name of the registered owner of the Nissan and the Toyota, for the purposes of effecting sale of the property; and

(ii)the proceeds of the same are to be applied as follows:

i.costs of and associated with the sale of the property by the Official Assignee; and

ii.the remaining proceeds of the sale are to be held under the custody and control of the Official Assignee as restrained property pending further orders of the Court.

Grau J

Solicitors:
Crown Solicitors, Wellington for Applicant