Commissioner of Police v Zagros

[2023] NZHC 162

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-669

[2023] NZHC 162

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

SAMI ZAGROS

First Respondent

HYPER TRADE LIMITED
Second Respondent

ANZ BANK NEW ZEALAND LIMITED
First Interested Party

ANDRE FRANCIS JAMES

Second Interested Party

Hearing:

(Determined on the papers)

Counsel:

S J Mallett for Applicant

A M S Williams and K E Bucher for First Respondent

Judgment:

9 February 2023

JUDGMENT OF EATON J

[1]    Applications brought by the Commissioner of Police seeking a profit forfeiture order and, in the alternative, an assets forfeiture order, were set down to be heard before me in a two-day hearing commencing 7 February 2023.

[2]    On 1 February 2023, I heard and dismissed an application brought on behalf of Mr Zagros to adjourn the hearing. During the course of the adjournment application Mr Mallett, on behalf of the Commissioner, advised that a settlement offer, whereby

COMMISSIONER OF POLICE v ZAGROS [2023] NZHC 162 [9 February 2023]

the profit forfeiture order was abandoned and an assets forfeiture order made, remained on the table.

[3]    On 2 February 2023, a consent memorandum was filed, signed by Mr Zagros personally, consenting to the making of an asset forfeiture order in terms of a draft order filed by Mr Mallett. An accompanying email confirmed that no hardship application was to be pursued by Mr Zagros and that all matters had been settled as between the parties.

[4]    In a supporting memorandum dated 3 February 2023, Mr Mallett confirms that having reached agreement as to an assets forfeiture order, the application for the profit forfeiture order is formally abandoned.

[5]    I agree with counsel that because Mr Zagros has consented to the making of the assets forfeiture order, the Court is not required to approve a settlement under s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[6]    I have considered the evidence of Detective Sergeant Patten filed in support of the application for the profit and assets forfeiture orders. Pursuant to s 50 of the Act, the Court must make an assets forfeiture order in respect of specific property if satisfied on the balance of probabilities that specific property is tainted.1 “Tainted property” is defined in s 5 of the Act as:

tainted property—

(a)means any property that has, wholly or in part, been—

(i)acquired as a result of significant criminal activity; or

(ii)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 1 activity if at least 1 of those activities is a significant criminal activity

[7]“Significant criminal activity” is defined in s 6 of the Act as:

1      Criminal Proceeds (Recovery) Act 2009, s 50.

6        Meaning of significant criminal activity

(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

$30,000 or more have, directly or indirectly, been acquired or derived.

(2)A person is undertaking an activity of the kind described in subsection

(1) whether or not—

(a)the person has been charged with or convicted of an offence in connection with the activity; or

(b)the person has been acquitted of an offence in connection with the activity; or

(c)the person’s conviction for an offence in connection with the activity has been quashed or set aside.

(3)Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b).

[8]    I am satisfied that the property referred to at para [12] below is tainted property as it was acquired as a result of, or derived directly or indirectly from, significant criminal activity. In consenting to the assets forfeiture order, Mr Zagros concedes that each item of property is tainted.

[9]    As highlighted by counsel for the Commissioner, the 2016 Mercedes-Benz C300, registration KRG429, was registered to Hyper Trade Limited (HTL). I am satisfied that Mr Zagros was in control of HTL and was a beneficial owner of its assets and, therefore, able to consent to the forfeiture of that vehicle and funds held in HTL bank accounts.

[10]   The 2015 Mercedes-Benz A250, registration LPW325 is registered in the name of Andre Francis James. The evidence satisfies me that vehicle was used by Mr Zagros and in his possession at the time of restraint and seizure. Mr James has since fled New Zealand. The evidence confirms the car was being used by Mr Zagros’ co-

offender to transport drugs from Auckland and that co-offender then provided the car to Mr Zagros. Notably, no other party has claimed interest in this vehicle, notwithstanding it having being restrained over the past four and a half years.

[11]   The Ducati road bike registration B3KBP was found in Mr Zagros’ possession and he was identified discussing that motorbike in intercepted communications. It is registered in the name of Sanmar Bigy. I am satisfied that is an alias used by Mr Zagros.

[12]   In the circumstances, I am satisfied that an assets forfeiture order is appropriate in relation to each of the assets as set out below.

(a)2016 Mercedes-Benz C300 motor vehicle registration KRG429, registered to the former second respondent, Hyper Trade Limited (now removed from the Companies Register), valued at $16,000.00;

(b)2015 Mercedes-Benz A250 motor vehicle registration LPW325, registered to the second interested party, Andre Francis James, but in the possession and under the effective control of the first respondent, valued at $6,000.00.

(c)2013 Ducati Monster 659 road bike, registration B3KBP, registered to Sanmar Bigy (an alias of the first respondent), valued at $5,000.00;

(d)cash located at the respondent’s address at 3/69 Derby Street, Christchurch, totalling $179,054.40 (plus any accrued interest);

(e)all funds held at the time of restraint in ANZ Bank New Zealand Limited bank accounts in the following names and account numbers and with the following balances as at 6 September 2018, plus any interest accrued:

(i)Hyper Trade Limited

06-0821-0940374-00  Balance $465.87

06-0821-0940374-05  Balance $123,103.98

(ii)Mr Sami Zagros

06-0821-0937503-00  Balance $5,414.11

(f)Five items of jewellery, three seized from the first respondent’s address at 3/69 Derby Street, Christchurch, and two from the personal property of the first respondent, together valued at between $8,600.00 and

$45,200.00. The items are as follows:

(i)gold bracelet;

(ii)gold necklace; and

(iii)three gold rings.

[13]   The application for a profit forfeiture order is dismissed. No order for costs is made.

...................................................

Eaton J

Solicitors/Counsel:

Crown Solicitor’s Office, Christchurch Anselm Williams, Christchurch