Commissioner of Police v Kohunui
[2025] NZHC 2437
•26 August 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2025-443-3
[2025] NZHC 2437
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an application under ss 21, 24 and 25
BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
JOHN SHANE KOHUNUI
Respondent
NIGEL NIRAI SINGH
First Interested PartyHEARTLAND BANK LIMITED
Second Interested Party
Hearing: 22 August 2025 Counsel:
J E Bourke for Applicant N Bourke for Respondent
Judgment:
26 August 2025
JUDGMENT OF GENDALL J
Introduction
[1] John Kohunui pleaded guilty to a charge of possession of cannabis for supply, having been found in possession of three kilograms of cannabis. On 18 July 2025, he was sentenced to a period of home detention.
COMMISSIONER OF POLICE v KOHUNUI [2025] NZHC 2437 [26 August 2025]
[2] On 28 April 2025, Grau J granted an on-notice application for restraining orders under the Criminal Proceeds (Recovery) Act 2009 (CPRA) over three vehicles linked to Mr Kohunui,1 being:
(a)a 2020 Harley Davidson Softail Street Bob motorcycle (2020 Harley Davidson);
(b)a 2015 Harley Davidson V-Rod Muscle motorcycle (2015 Harley Davidson); and
(c)a 2018 Holden Colorado LTZ Double Cab Utility (Holden Colorado).
[3] The Commissioner of Police (the Commissioner) now seeks early sale orders in respect of those vehicles, to preserve their value.
[4] While Mr Kohunui does not oppose the early sale order with regard to the Holden Colorado, he does oppose the early sale of the motorbikes.
Legal principles
[5] Section 33 of the CPRA provides that an applicant for a restraining order can apply for a further order,2 including an order directing the Official Assignee to sell the restrained property in order to preserve its value.3
[6] The Commissioner is not required to prove on a balance of probabilities that a sale is required, but rather must persuade the Court that a sale order is appropriate and necessary to preserve the value of the restrained property.4 Relevant factors include 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.5
1 Commissioner of Police v Kohunui HC New Plymouth CIV-2025-443-003, 28 April 2025 (Minute of Grau J).
2 Criminal Proceeds (Recovery) Act 2009 [CPRA], s 33(1)(a).
3 Section 35(e)(v).
4 Commissioner of Police v Evans [2024] NZHC 2525.
5 Commissioner of Police v Drummond [2018] NZHC 1730 at [15].
[7] Sale orders are typically pursued where the restrained assets are likely to have a high depreciation rate and when combined with costs of storage and insurance, will ultimately decrease the potential return to the Commissioner or the parties who claim an interest in the asset in question.6
Submissions
For the Commissioner
[8] Counsel for the Commissioner submits that an early sale order is necessary here to preserve the value of the vehicles. He notes Mr Singh’s affidavit sets out that the vehicles are projected to depreciate by 21 per cent per annum, in accordance with the IRD prescribed rates. This equates to thousands of dollars each year for each vehicle. He acknowledges that holding or storage costs alone are not sufficient for an early sale order, but points out the annual storage costs are just as high as the annual depreciation, amounting to $2,920 per year for each of the motorbikes and $6,533.50 per year for the Holden Colorado.
[9] Counsel before me accepted that there is disagreement as to the value of the motorbikes, but the Commissioner maintained the higher potential value suggested by Mr Kohunui does not negate the appropriateness of an early sale order, with depreciation still applying at the prescribed rates. He says the fact that Mr Kohunui was able to find other similar or comparable motorbike models on Facebook Marketplace or TradeMe indicates these vehicles are not rare or unique. While acknowledging some work had been done to the motorbikes, counsel submits there is no evidence they fall into the category of vintage, classic or rare type of vehicles that may appreciate in value over time. He contends too that it is hard to accept Mr Kohunui in particular has any great sentimental attachment to the 2015 Harley Davidson, given it was only acquired at the end of 2024 and was seized by Police on 9 January 2025.
[10] Lastly, counsel notes that Mr Singh, the Commissioner’s investigator, has advised the forfeiture application is around six months away. He says that Mr Singh
6 Commissioner of Police v Cavanaugh [2014] NZHC 2978 at [7].
and the Commissioner are still in a detailed process with a forensic accountant of completing the unlawful benefit analysis.
For Mr Kohunui
[11] Counsel for Mr Kohunui, as a starting point, suggests that significant caution is required in placing reliance on the IRD general depreciation rates. He says depreciation rates ought to be based on the expected useful life of an asset. Based on this, using the IRD’s straight-line deprecation rate for vehicles of 21 per cent, new vehicles in New Zealand would lose their entire value in approximately 4.75 years. He says this reveals the fundamental nature of IRD vehicle depreciation rates as being for the purpose of tax relief, rather than providing any measure of accurate assessment of depreciation. The notion a new vehicle in New Zealand will have lost its entire value after approximately 4.75 years, he maintains, is self-evidently wrong. In his contention, depreciation is predominant in the first few years of a new vehicle’s life, with depreciation simply slowing as a vehicle ages.
[12] Counsel observes the motorbikes here are five years old and 10 years old respectively, and says that if the IRD depreciation rates were accurate, each would now have nil value. He refers also to Dobson J’s findings in Blance that where the depreciation rate of a vehicle has bottomed out, the reduction in the eventual return caused by the holding costs will not be sufficient to warrant an order for sale.7 Counsel contends that if the motorbikes do have value, the inadequacy of the IRD rates relied on by the Commissioner means the Commissioner has failed to persuade the Court that a sale order is necessary to preserve the value of the motorbikes.
[13] Counsel also submits the Commissioner has yet to specify the quantum of alleged unlawful benefit to Mr Kohunui from significant criminal activity, and says it is unclear here why the Commissioner requires until February 2026 to file a forfeiture application. He says there is no evidence or suggestion that Mr Kohunui was running anything approaching a sophisticated cannabis dealing operation, and notes too that the offending did relate only to cannabis rather than methamphetamine which often has a more elaborate setup and organisational structure. Regardless, Mr Kohunui’s
7 Commissioner of Police v Blance [2018] NZHC 108 at [52].
position is that a six-month wait is not particularly long, in any event, with nothing to suggest he would not promptly seek to settle matters once an unlawful benefit is established. It is noted too that the storage costs for both motorbikes over the next six months amounts only to approximately $2,912. Overall, counsel argues the length of time until forfeiture, and the uncomplicated nature of the proceeding strongly favours the application being declined.
[14] Counsel further points to the need to weigh in the mix here the views of Mr Kohunui as the owner of the motorbikes. As to this, Mr Kohunui in his affidavit evidence highlighted the importance of the motorbikes to him. The work, care, modifications and improvements he has made to them was also noted in Mr Singh’s affidavit. Mr Kohunui says the Commissioner seeks to downplay this, but he also emphasises that the wishes of the owner have repeatedly been found by the Courts to be a relevant consideration. Counsel also says the early sale of the Holden Colorado, which is not opposed, will provide a not insignificant sum to the Commissioner that can later be recovered depending on the proposed unlawful benefit, that is established. Finally, he suggests the funds from the Colorado might, in any event, exceed any unlawful benefit.
Analysis
[15] At the outset, I need to say that there is some force in the submission on behalf of Mr Kohunui that the IRD general depreciation rates are of limited assistance here. Given the respective ages of the motorbikes, applying the straight-line depreciation rate of 21 per cent per year would mean they would now have no value. In my view, that cannot be the case and it is simply absurd to suggest otherwise. The e-valuations of the motorbikes by Turners obtained by the Commissioner have actually assessed them at $14,000 for the 2020 Harley Davidson and $16,000 for the 2015 Harley Davidson. Mr Kohunui’s evidence even differs significantly from this where he says first, that he acquired those motorbikes for $20,000 and $32,000 respectively, secondly, his valuations from Show Toys Motorcycles have their present values at
$27,000 and $30,000, and thirdly, that the increase in the value of the 2020 Harley Davidson in particular he maintains is due to the significant modifications he has made to the bike. These include the installation of a Harley Davidson Softail shock absorber
kit, which is said to have cost Mr Kohunui $1,953.85, upgrades undertaken as part of a servicing on 11 December 2023, again said to cost $1,934, and the installation of a security system at a claimed cost of $324.
[16] I agree too with counsel for Mr Kohunui, that the reality of depreciation of most motor vehicles is that much of the value is lost in the first few years of ownership, with the rate of depreciation generally declining the older a vehicle gets until it eventually bottoms out. While IRD’s general depreciation rates have often been utilised to assist in determining the depreciation of vehicles for the purposes of early sale orders under the CPRA, I note that the rates are set out for the general book-keeping purposes of calculating depreciation for taxation questions, rather than to make firm determinations of applications under the CPRA.
[17] I do accept the submissions for the Commissioner however, that the motorbikes here cannot be said to be vintage, classic or rare, particularly when many similar motorbikes have been found by Mr Kohunui for sale on TradeMe and Facebook Marketplace. Nor do I consider there is sufficient evidence before me to unequivocally support any suggestion that they may truly be of great sentimental value to Mr Kohunui.8 This is particularly the case with respect to the 2015 Harley Davidson which was only in Mr Kohunui’s possession for a matter of months before it was seized by Police.
[18] Turning now to other recent authorities on this aspect of the CPRA, in my view, there are some similarities here with the case of Commissioner of Police v Warwick- Dalley.9 In that case, a defendant facing 37 charges of importation, possession and supply of controlled drugs was responding to an application for an early sale order in respect of his utility vehicle. Justice McHerron there, declined the Commissioner’s application for a sale order for the defendant’s Mitsubishi Triton ute. The Judge found too that the Commissioner had not employed Inland Revenue’s depreciation guide correctly. He noted the guide stated the useful life of a light commercial vehicle was
8 In his 12 June 2025 affidavit, Mr Kohunui deposes that both motorbikes are his “pride and joy” and he has worked hard to keep each of them “in mint condition”. He goes on to say in his affidavit that, so far as the 2020 Harley Davidson is concerned, “Since purchase [in 2023] I have had several modifications and improvements made to the bike at my expense.”.
9 Commissioner of Police v Warwick-Dalley [2025] NZHC 272.
6.6 years, and that the vehicle was now seven years old, meaning it would have already depreciated to a zero book value within that useful life span.10 His Honour accepted however that the vehicle clearly had some value, and would likely continue to depreciate, but found the Commissioner had produced no useful evidence to establish what rate of depreciation was likely.11 He considered the depreciation of the vehicle may have bottomed out such that any future depreciation rate was occurring at a low rate.12 However, a point of difference with the present case was that Mr Warwick Dalley did show clear sentimental value in his vehicle, as he had received it from a friend, and personally did considerable work on the vehicle himself while on EM-bail.13 Overall, McHerron J considered that an order for early sale was not appropriate.
[19] A conflicting authority relied on by the Commissioner before me was Commissioner of Police v Milosevic.14 In that case, it was submitted by the respondent’s counsel that if straight line depreciation of 21 per cent was correct, by 2017/2018 the Ford Raptor at issue there would have no value. However, the e-valuation undertaken had assessed the value of the vehicle at $32,000. Justice Hinton stated that, although it was fair to outline this distinction, it did not detract from the fact that the vehicle anyway would be depreciating.15 She noted that while the indicative value was likely too low, the depreciation rates were likely too high. But she accepted they were indicative only, and aimed to simply provide the Court with some assistance in terms of the general depreciation value of chattels. Her Honour noted the forfeiture proceeding would not be resolved for over a year, with potential depreciation and storage costs mounting, and in that context she found it appropriate to order a sale, with no special factors relating to the vehicle.16
[20] Turning now to the present case, the fact that the offending here was relatively modest suggests, as I see it, that early sale of the motorbikes may be inappropriate, especially where the value of the Holden Colorado (being $22,000 according to the
10 At [9].
11 At [10].
12 At [11].
13 At [14]–[16].
14 Commissioner of Police v Milosevic [2019] NZHC 1554.
15 At [15].
16 At [23].
Commissioner’s valuation), which Mr Kohunui accepts can be the subject of a sale order, may be sufficient to recover the ultimate forfeiture proceeds. Given too, the differences in the ages of the motorcycles, in my view it is appropriate to say the rate of depreciation has bottomed out here particularly with respect to the 2015 Harley Davidson. Accordingly, the reasoning in Commissioner of Police v Blance arguably would apply here also, namely that where the rate of depreciation has bottomed out, the holding costs alone cannot be sufficient to warrant an order for sale.17 In contrast, it might perhaps be said the 2020 Harley Davidson is more likely to attract greater depreciation until the resolution of the forfeiture application, and this could warrant an early sale order. However, in my view, attempting to make a differentiation like this simply based on vehicle age alone is a shift too far into pure speculation. These are not new or near-new motorbikes.
[21] I am mindful here that the Commissioner’s forfeiture proceeding is also only around six months away. There is little clear evidence before me as to what the actual depreciation in value of the motorbikes (if any) is likely to be for a period such as this. The holding costs for this period are also not substantial. In Milosevic, where a sale order was granted, there was also a much longer period until resolution of the forfeiture application. And given first, that a sale order for the Holden Colorado is not opposed by Mr Kohunui (and is to follow), and secondly, that proceeds from the sale of this vehicle might well meet a significant part, if not all of the ultimate forfeiture order, I am satisfied that a sale order for the two motorbikes is not appropriate at this point.
[22] Those two motorbikes will nevertheless remain subject to the restraining orders in the meantime. And the unopposed sale order with respect to the Holden Colorado will now be made.
Conclusion
[23] The Commissioner’s application for sale orders in respect of both Mr Kohunui’s 2020 Harley Davidson and his 2015 Harley Davidson is declined. His application for a sale order in respect of the Holden Colorado succeeds.
17 Commissioner of Police v Blance [2018] NZHC 108 at [52].
[24] An order is now made under s 34 of the CPRA directing the Official Assignee to sell the 2018 Holden Colorado LTZ Double Cab Utility, including ignition keys, in order to preserve the value of that restrained property.
Costs
[25] No order as to costs is made here given that both parties have been successful (and I am also unaware as to whether or not Mr Kohunui is legally aided here).
Gendall J
Solicitors:
C&M Legal, New Plymouth for Applicant cc: N Bourke for Respondent
0
6
0