Commissioner of Police v Ngapera
[2024] NZHC 3863
•17 December 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2024-441-096
[2024] NZHC 3863
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an application under ss 21 and 25
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
NGAPERA TAWIO NGAPERA
Respondent
AND
BAILEY CALLUM
Interested Party
Hearing: On the papers Appearances:
M J M Mitchell for Applicant
No appearances for Respondent and Interested Party
Judgment:
17 December 2024
JUDGMENT OF McHERRON J
[1] The Commissioner of Police (the Commissioner) has filed an on-notice application dated 29 October 2024 seeking to restrain $64,545.90 plus accrued interest (the Cash) under ss 21 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act) comprising:
(a)$10,290 seized in Auckland on 10 June 2022;
(b)$50,490 seized in Napier on 17 February 2024; and
(c)$3,765.90 seized in Napier on 16 May 2024.
THE COMMISSIONER OF POLICE v NGAPERA [2024] NZHC 3863 [17 December 2024]
[2]The Commissioner alleges:
(a)the Cash is linked to cannabis and methamphetamine dealing by Ngapera Tawio Ngapera, the respondent;
(b)Mr Ngapera had no alternative source of legitimate income to explain his possession of the Cash.
[3] The Commissioner alleges Mr Ngapera intended to exchange the Cash for drugs, or that he received the Cash as payments for the supply of drugs.
[4] The Commissioner served his application on Mr Ngapera on 2 November 2024, and on Mr Callum, the interested party, on 31 October 2024.1 The matter came before Gwyn J in the Criminal Proceeds List on 18 November 2024. She indicated that if Mr Ngapera intended to file a notice of opposition, he must do so on or before Wednesday 4 November 2024.2
[5] Mr Ngapera did not file a notice of opposition. For the Commissioner, Ms Mitchell has filed a memorandum setting out the factual and legal basis on which the Commissioner says the restraining order can be made. As Duty Judge, I have received the Commissioner’s application and Ms Mitchell’s memorandum for consideration on the papers.
Further details of the seized Cash
[6]The Police compiled the following information as part of Operation Master.
The $10,290 seized in Auckland
[7] On 10 June 2022, an Auckland Police constable was driving in Auckland city when a ute, registered to Mr Ngapera, cut in front of him. Mr Ngapera was driving the ute, with his partner and another person. The constable stopped the ute. A strong
1 The interested party’s surname is spelled “Cullum” in several documents filed as part of the Commissioner’s application.
2 Commissioner of Police v Ngapera HC Napier CIV-2024-441-96, 18 November 2024 (Minute of Gwyn J).
smell of cannabis prompted the constable to execute a warrantless search of the ute and its occupants.
[8]In the search, the constable found:
(a)$3,110 in cash in the centre console with a small amount of cannabis leaf underneath;
(b)$7,180 in the glove box alongside a small zip-lock bag containing
2.13 g of cannabis;
(c)about 480 g of cannabis plant material in a vacuum sealed bag inside a cardboard box in the rear of the ute; and
(d)two packets of sandwich-sized zip-lock bags, pre-cut tinfoil squares and scales in a drawer built into the rear of the ute.
[9] Mr Ngapera declined to comment when asked about the cannabis, cash, and other items. The passengers denied any knowledge or ownership.
[10] Mr Ngapera was charged with possession of cannabis for supply. He admitted ownership of the cannabis and took part in an alternative resolution process, which resulted in diversion of the charge. This meant there was no conviction, and the Police could not seek forfeiture of the seized cash. The $10,290 total cash remains in the Police trust account and no one has claimed ownership or sought to have the money released. The Police say the cash belongs to Mr Ngapera and is the proceeds of drug dealing.
The $50,490 seized in Napier
[11] On 17 February 2024, a detective in the Hawkes Bay Police observed a car being driven erratically in Napier. She signalled for the driver to pull over. Mr Ngapera was the driver and sole occupant. Mr Ngapera appeared to be under the influence of drugs, his behaviour being irrational and paranoid. He was arrested for driving while disqualified. Mr Ngapera asked the detective to get his backpack from
the car before it was impounded. It contained $50,490 in cash, about which Mr Ngapera gave no explanation. The Commissioner says the cash belongs to Mr Ngapera and is the proceeds of crime. In relation to this incident, Mr Ngapera was charged with driving under the influence of a drug, resisting Police, assaulting Police (x 4), possession of methamphetamine, and refusing an officer’s request for a blood sample. He has entered guilty pleas for some of these charges.
[12] Mr Callum approached Police on 23 February 2024 about the $50,490 that was seized from Mr Ngapera’s car. Mr Callum said he would formalise his claim of ownership by making a statement to Police, but he has not done so. Mr Callum gave no reason for claiming ownership of the cash. He has not contacted Police since 18 October 2024.
The $3,675.90 seized in Napier
[13] On 16 May 2024, Police were called to attend a single vehicle crash on the Hawkes Bay Expressway. When they arrived, Police found Mr Ngapera heavily intoxicated. He had crashed his vehicle. The first Police officer to arrive at the scene found members of the public attempting to restrain Mr Ngapera to keep him from leaving. Mr Ngapera resisted arrest and continued to attempt to leave the scene. He was placed in the custody of two other Police who had arrived to assist. Mr Ngapera offered bribes to the Police, claiming to be the “fucking drug lord around here now” and to be involved in the methamphetamine trade between China and Auckland.
[14] Police found a wallet with $3,675.90 in cash lying in the footwell of the front passenger seat of the car. The wallet also contained another person’s driver licence. Mr Ngapera denied ownership of the cash. He was subsequently charged with careless driving, resisting Police, threatening to kill, and refusing a blood sample. He has pleaded guilty to some of these charges. The cash remains in the Police trust account, and no one has claimed ownership of it. The relationship between Mr Ngapera and the person whose driver licence was found is not known, however, Police had earlier pulled over a car that contained that person, Mr Ngapera, Mr Callum, and two others.
Phone data
[15] During 2023, Hawkes Bay Police were investigating Mr Ngapera. On 26 October 2023, a production order granted by the Hastings District Court authorised Police to obtain several months’ of data for a phone number attributed to him.
[16] The Commissioner alleges text message data retrieved under the production order shows messages Mr Ngapera sent relating to the sale and supply of drugs. For example, Mr Ngapera received a text on 1 May 2023 asking how much for an “elbow”.3 He is alleged to have replied saying “$3;5”, meaning $3,500, which the Commissioner says is consistent with cannabis pricing. On 12 June 2023, Mr Ngapera received a message saying, “I’ll be able to do a gshock tonight kuzzy …”.4 Mr Ngapera replied “3$” and “250 for 2 or more”. The Commissioner says this means
$300 for one gram or $250 for two grams or more, which the Commissioner says is consistent with methamphetamine pricing.
[17] Further phone data production orders were granted on 19 July 2024, and the Police obtained information from the Bank of New Zealand and ASB as a result of banking data production orders. The data revealed further text messages relation to drug sale and supply, including to people who the Police understand are Black Power gang members. The Commissioner alleges Mr Ngapera is a patched Black Power member.
Income details
[18] The Ministry of Social Development has advised that Mr Ngapera received a benefit, but this was cancelled on 11 July 2023, and he has had no legitimate income since that date. From 2020 to 2023, Mr Ngapera’s total declared income was
$25,611.53. Banking data also shows Mr Ngapera paying for significant outgoings from his bank accounts that do not correspond with his limited declared income. Things like food, alcohol, household expenses and petrol are largely absent in the banking records, indicating that cash was used.
3 An “elbow” is a common term for one pound of cannabis.
4 A “gshock” is a common street term to describe one gram of methamphetamine.
Discussion
[19] To obtain a restraining order under s 25 of the Act, the Commissioner must satisfy the Court there is an objective and credible basis for a belief that the respondent has knowingly received a benefit from significant criminal activity.5
[20] The threshold for granting restraining orders is low: a finding on the balance of probabilities is not required, but merely satisfaction of the Court of a proper basis for such a belief.6 This lower threshold is consistent with the interim nature of such orders, the purpose of which is to preserve property while the Commissioner is gathering evidence for an application for forfeiture.
[21] “Significant criminal activity” is defined in s 6 of the Act to mean criminal activity engaged in by a person that, if proceeded against as a criminal offence, would amount to offending that consists of, or includes, offences punishable by a maximum of five years’ imprisonment or more, or from which property, proceeds, or benefits of a value of $30,000 or more have been acquired or derived either directly or indirectly.7
[22] Supplying methamphetamine is an offence carrying a maximum penalty of life imprisonment.8 Selling cannabis is an offence carrying a maximum penalty of eight years’ imprisonment.9
[23] Based on the information contained in the Police affidavits filed with the Commissioner’s application, I am satisfied that there are reasonable grounds to believe Mr Ngapera has unlawfully benefitted from significant criminal activity, being the sale and supply of methamphetamine and cannabis.
[24] There is credible information to suggest that the seized Cash is associated with the drug trade. The amount of the Cash, in conjunction with the text message and banking data, satisfies me that Mr Ngapera has derived the Cash illegitimately and as a result of significant criminal activity.
5 Criminal Proceeds (Recovery) Act 2009 (CPRA), ss 21 and 25.
6 Vincent v Commissioner of Police [2013] NZCA 412 at [40] and [47].
7 See also s 5(1) definition of “threshold amount”.
8 Misuse of Drugs Act 1975, s 6(1)(c).
9 Misuse of Drugs Act, s 6(1)(e).
Result
[25] For the reasons above, I make an order restraining the Cash described above at [1]. It is to be held under the Official Assignee’s custody and control.
[26] The restraining order is to expire after one year from the date of this decision, subject to any further order of the Court.10 The Commissioner must update the Court before 17 December 2025 as to whether he will apply for forfeiture of the Cash.
McHerron J
Solicitors:
Elvidge & Partners, Napier for Applicant
10 CPRA, s 36(1).
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