Commissioner of Police v McEnteer
[2024] NZHC 2505
•3 September 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2024-441-0014
[2024] NZHC 2505
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an application for an asset forfeiture order
BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
LEON ADRIAN TAMATI McENTEER
First Respondent
TANIKA ALAMAIN POHATU
Second Respondent
Hearing: 28 August 2024 Counsel:
M J M Mitchell for Applicant First Respondent in person
Judgment:
3 September 2024
JUDGMENT OF GRAU J
[Application for asset forfeiture order]
The application
[1] On 13 February 2024, the Commissioner of Police (the Commissioner) applied under the Criminal Proceeds (Recovery) Act 2009 (the CPRA) for an on-notice restraining order in respect of $112,097.03 plus any accrued interest seized from the first and second respondents’ bedroom at a Napier address on 6 April 2022 (the Cash).
[2] That application has not yet been determined. Subsequently, on 3 July 2024, the Commissioner filed an application for an asset forfeiture order. Following that application Mr McEnteer provided an explanation, via email, for the presence of the
COMMISSIONER OF POLICE v McENTEER [2024] NZHC 2505 [3 September 2024]
Cash. The matter was then set down for a hearing at which Mr McEnteer appeared via AVL from Australia (where he now lives) and gave evidence about the provenance of the Cash. Ms Pohatu did not appear and has not given evidence in these proceedings.
[3] The Commissioner filed seven affidavits in support of its application. Mr McEnteer did not require any of the deponents for cross-examination. These are the affidavits of:
(a)Amber Thompson, dated 2 February 2024;
(b)Carla Maka, dated 16 November 2023;
(c)Detective Thomas Montague, dated 14 September 2023;
(d)Detective Constable Laura Coleman, dated 13 November 2023;
(e)Constable Shaun Kennard, dated 28 September 2023;
(f)Bayley Orr, dated 28 September 2023; and
(g)Amber Thompson, dated 3 July 2024.
[4] In essence, the Commissioner’s application is made on the basis that the Cash was located in circumstances suggesting it is linked to dealing in cannabis, and Mr McEnteer has not provided an adequate explanation for the Cash nor any verification for his claims about where the Cash came from. Even if his explanation was accepted, however, it would not explain the quantity of his and his partner’s otherwise unexplained income. Instead, the location of a significant quantity of cannabis (packaged in saleable quantities) and the presence of the Cash makes cannabis dealing the more likely explanation for the family income during the relevant period.
A search warrant at Mr McEnteer’s home
[5] The affidavit of Amber Thompson, an Asset Recovery Unit investigator, sets out that the first respondent, Mr McEnteer, is in a relationship with the second respondent, Ms Pohatu, and previously lived at an address in Napier.
[6] Mr McEnteer is a director and shareholder of a company, The Concrete Brothers (TCBL). While Mr McEnteer (who is said to be a patched Black Power member) has previous criminal convictions, he has no drug convictions. Ms Pohatu has no criminal convictions.
[7] Police executed a search warrant at the home address of the respondents on 6 April 2022. The address had a main dwelling and two separate smaller dwellings on the property, along with a cabin and a caravan. It is said that the property was used as a Black Power gang pad. The respondents lived in the main dwelling on the property with several children. Neither Mr McEnteer nor his partner were present when the search warrant was executed.
[8] In the cabin at the front of the property, Police located invoices which were addressed to ‘Leon’ (Mr McEnteer’s first name) and ‘Tyson’ from TCBL. Tyson Wirihana was a co-director of TCBL with Mr McEnteer. This cabin had no furniture but contained various tools and boxes. In a white bucket in the cabin were bags of cannabis and cannabis utensils.
[9] In what appeared to be a child’s bedroom in the main dwelling, Police found a green Bunnings bucket containing multiple bags of dried cannabis.
[10]In a wardrobe shelf in the bedroom of the respondents, Police found
$112,097.30 in cash hidden inside three money tins, a hat box, and a shoe box.
[11] The plastic packaging containing the cannabis and the containers in which the cash was found were forensically examined for fingerprints, but none were obtained, apart from Mr McEnteer’s fingerprint on one of the money tins that contained the Cash. The lack of any fingerprints on the cannabis packaging resulted in no charges being laid in respect of the cannabis.
[12] The cannabis found in the cabin in the white bucket was individually packaged. One bag weighed approximately 215 grams and another 230 grams. That is consistent with a half-pound (224 grams) quantity, known as a “deal bag”. The four smaller bags all weighted approximately 28 grams, or one ounce, a common weight in which cannabis is sold.
[13] In total, the cannabis weighed 598 grams, thus it was well over the quantity at which cannabis is presumed for supply.1
[14] It is the Commissioner’s case that the total weight of the cannabis, the weights into which the cannabis was packaged, and the substantial quantity of cash leads to a strong inference the cannabis was for the purpose of supply.
[15] Financial records for the respondents were obtained pursuant to the CPRA. It is the Commissioner’s case that an analysis of the financial history provides no legitimate explanation for the sum of the Cash found in the respondents’ room.
[16] The evidence for the Commissioner notes a lack of banking transactions from July 2017 to July 2019, indicating access to cash enabling the respondents to live outside the regular banking system. In addition, the absence of income in some years leads to an inference of an undeclared source of income. Mr McEnteer also had a business account with ANZ, opened on 6 October 2021 until 20 June 2022, where business income was received by direct credit or bill payment. No cash deposits were made into that account.
[17] The Commissioner also points to an incident in 2019 when Mr McEnteer was found in possession of approximately $50,000 in cash. At that time, he was not employed or receiving a benefit. However, Police had no lawful authority to retain the cash at the time and it was returned to him.
[18] Another matter referred to is the presence of vehicles at the property at the time of the search warrant in April 2022. The first vehicle, a Holden Sedan, was registered to the second respondent on 2 March 2021. It had an estimated TradeMe resale value
1 Misuse of Drugs Act 1975, s 6(6) and sch 5.
of $91,600 on 11 April 2022. It was on-sold on 28 October 2022. This is a high-value vehicle, but there is no evidence in banking records indicating this purchase was made through the banking system. The Commissioner also contends it is unclear how the respondents (who were reliant on benefits and during some years had no income at all) could legitimately purchase this vehicle.
[19] The second vehicle, a Holden Ute, was registered to Mr McEnteer’s mother on 30 May 2020, with an estimated TradeMe resale value of $28,600 on 15 June 2022. Enquiries established the vehicle was purchased around May 2020 with $25,000 in cash, mostly in $50 denominations from a plastic bag.
[20] As above, the respondents were not present when the search warrant was executed. The second respondent’s grandmother, however, confirmed they lived in the house where the money was located.
[21] Police established, through an Immigration New Zealand enquiry, that the respondents left New Zealand for Australia on 8 February 2023, the day after Ms Thompson spoke to Mr McEnteer by phone to arrange an appointment to discuss the Cash. Mr McEnteer had told her he was busy with a tangi but made an appointment to meet her the following week, at which he failed to appear.
[22] On 8 August 2023, Ms Thompson, with the assistance of Interpol, located the respondents in Australia and received contact details. She contacted both via email. Mr McEnteer replied stating the money was half from “flipping vehicles and the other half was deposits from jobs from my concrete business that went under”. Ms Thompson asked Mr McEnteer to provide business records and paper work for the cash that he said related to his business. She also asked for vehicle registrations and ownership details in relation to the cars. Mr McEnteer responded that there was around “40 thousand” from the business and he would have to look for invoices. He also said that he was paid cash and was busy keeping the business operating, hence no bank deposits. Mr McEnteer said he would find details about the vehicles but they were mostly sold through Facebook marketplace. Some would be hard to find as his account was shut down. He said he would find what he could.
[23] More recently, via email, Mr McEnteer provided a list of vehicles, with the amounts he paid and then sold them for. He also said roughly $25,000 was “concrete cashies jobs” and there was a “family money container” with five years of savings “which consisted of haircuts, lawns, car washing, [b]aking”. He said he had also done engine rebuilds and screen printing.
[24] Ms Thompson has deposed that she has been unable to find any supporting evidence to support Mr McEnteer’s claim that he made over $70,000 by selling motor vehicles.
Mr McEnteer’s evidence
[25]Mr McEnteer gave evidence at the hearing and was cross-examined.
[26] He said he had started “flipping cars” around 14 years ago. It became a hobby to buy something that was damaged, repair it, and then sell it on Facebook marketplace or TradeMe.
[27] As to the cannabis, he was a heavy smoker, of an ounce every three days. One of the buckets police found contained “shade” or crumbs from when cannabis breaks up. The bucket with the bongs was his cannabis. He denied selling cannabis, instead, he was a man of many trades including gardening, concreting, and building. The cannabis was packaged as it was, in ounce bags, so he could know how much he was smoking. He disputed the Commissioner’s suggestion that the cannabis found on the property was worth over $5,000. He said he would get it cheap from someone he knew. Mr McEnteer also said the money in the cash tins was his children’s savings over five or six years. Some was from selling t-shirts and jerseys he had screen- printed.
[28] Mr McEnteer denied he left New Zealand as a result of Police wanting to speak to him about the cannabis and the Cash they found at his address. He said he had return tickets booked before he got the call from Ms Thompson on 7 August 2023 but could not get back due to the floods in the Hawke’s Bay.
[29] Mr McEnteer explained that, when he was stopped by Police in 2019 with cash, it was not $50,000, but was instead around $28,000, because he was buying a car.
[30] When asked about the Police not being able to speak to him or his partner or examine their cell phones, Mr McEnteer said he and Ms Pohatu were present at the search warrant but that they were put outside on the road for four hours, after which he was allowed to go to work.
[31] Mr McEnteer said he did not know he had to provide more details about car sales. He said the valuations the Police had made of the cars (which were significantly lower than the figures he provided) were incorrect.
[32] Mr McEnteer explained that he supported himself and family over the relevant period by flipping cars, renovations, painting, and concreting. He did not know he had to declare “cashies” to the Inland Revenue Department (IRD). His partner was getting money from the IRD. He denied their lifestyle was funded from cannabis dealing. He also said he had handed in his gang patch before the search warrant was executed and his property was not a gang pad; that was the house next door.
Legal principles
[33] I must be satisfied on the balance of probabilities that the property over which the order is sought is “tainted property” as defined in s 5 of the CPRA. Tainted property means 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; in this case, dealing in cannabis.2 If satisfied of that, I must make an order for asset forfeiture.3
2 As per s 6(1)(a) of the Criminal Proceeds (Recovery) Act 2009 (CPRA), cannabis dealing amounts to “significant criminal activity”, given that the maximum penalty for possession of cannabis for sale is 7 years’ imprisonment. The amount of cash found at the address also exceeds the $30,000 “threshold amount” in s 6(1)(b) of the CPRA to amount to “significant criminal activity”.
3 CPRA, s 50.
Discussion
[34] I am unable to accept Mr McEnteer’s evidence explaining the source of the Cash. None of his claims are verified or able to be verified. Mr McEnteer suggested that he would be able to look for verification, but he has known for a considerable time now that he needed to supply such evidence. The lack of any evidence to support his explanations leads to the only reasonably possible conclusion—that there is none.
[35] I also note here Mr McEnteer’s assertion that he and his partner were present with their phones when the search warrant was executed is directly contradictory to the evidence filed by the Commissioner. The Commissioner’s evidence that they were absent was not tested by cross-examination. But I consider it is correct. It is extremely unlikely in my view, that, if they were present, the Police did not speak to them about what was located and/or seize their phones. If they had been present, they (or at least Mr McEnteer) would also inevitably have been arrested and charged for possession of cannabis for supply. Instead, I find it much more likely that they were not present and that they left the country as soon as they knew the Police wanted to speak to them.
[36] Putting Mr McEnteer’s evidence to one side, I have considered all of the evidence filed by the Commissioner in support of the application. The quantity of cannabis packaged in saleable amounts, together with a significant sum of cash and financial analysis suggesting a lack of any legitimate income, satisfies me on the balance of probabilities that the Cash is tainted property as defined in s 5 of the CPRA.
Result
[37] I grant the Commissioner’s application for a type 1 asset forfeiture order under s 50 of the CPRA.
[38] The cash totalling $112,097.30 seized from the first and second respondents’ bedroom at 48 Leicester Avenue, Tamatea, Napier on 6 April 2022 (plus any accrued interest):
(a)vests in the Crown absolutely; and
(b)is to be in the Official Assignee’s custody and control.
Grau J
Solicitors:
Crown Solicitor, Napier
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