Andelman v Director of Public Prosecutions (Vic)

[2015] VCC 790

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

CONFISCATION LIST

Case No. CI-08-05305

JOSEF ANDELMAN	First Applicant
and
SOFIA ANDELMAN	Second Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	Respondent

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2015
DATE OF JUDGMENT:	17 June 2015
CASE MAY BE CITED AS:	Andelman & Anor v Director of Public Prosecutions (Vic)
MEDIUM NEUTRAL CITATION:	[2015] VCC 790

REASONS FOR JUDGMENT
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Subject:  CRIMINAL LAW

Catchwords: Confiscation matter – declaration that certain property be forfeited made by the Court – applicant charged with 85 charges of theft of coins from parking meters totalling $142,500 – property of applicant restrained – applicant convicted of 82 counts of theft – offences schedule 2 offences within Confiscation Act 1997 – whether statutory criteria for automatic forfeiture of restrained property met – no exclusion application pending – appeal period expired – restrained property automatically forfeited on expiry of appeal period

Legislation Cited:     Confiscation Act 1997, s20, s35, s35(1), s35(2), s36

Cases Cited:Director of Public Prosecutions (Vic) v Nguyen; DPP (Vic) v Duncan (2009) 23 VR 66

Judgment:Declaration made that certain property be forfeited.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	The applicants appeared in person	-
For the Respondent	Mr J Singh	Solicitor for Office of Public Prosecutions

HIS HONOUR:

1       On 12 June 2015, Mrs Sofia Andelman, the second applicant, appeared before me on an application made by her and her husband to stay an Order made by Judge Cohen in this Court on 29 April 2015.  I refused that application.

2 On 16 June 2015, the Director of Public Prosecutions made application to the Court for a declaration pursuant to s36 of the Confiscation Act 1997 (“the Act”) that certain property has been forfeited. I made that declaration and signed the Order prepared by Mr Singh, who appeared on both occasions for the Director. On 16 June 2015, both Mr and Mrs Andelman appeared unrepresented. They asked me not to sign the declaration and again asked me to stay the Order made by Judge Cohen. In short, they pleaded that the Orders had ruined them financially and threatened their financial future and that of their immediate family. I endeavoured to explain to them that the Orders that I have made are a consequence of applying the provisions of the Act and I did not have the power to grant them any relief. I have some sympathy for the position in which the applicants now find themselves and I told them that I would endeavour to publish brief Reasons today so that they might seek relief from the Supreme Court. These are those Reasons.

3       There is a brief history to the matter which sets the background.

4 In 2008, Mr Josef Andelman was charged with 85 charges of theft of coins from parking meters in Melbourne totalling $142,500. As the cumulative amount of the thefts exceeded $75,000, the offences were Schedule 2 offences within the Act.

5       On 8 December 2008, his Honour Judge McInerney made a Restraining Order over various items of property belonging to the applicants.  The Order restrained three (3) separate pieces of real estate in Cranbourne, four (4) motor vehicles, five (5) bank accounts and cash totalling around $150,000.

6 On 11 December 2008, the applicants filed exclusion applications pursuant to s20 of the Act. On 15 December 2008, Judge McInerney, by consent, stayed the hearing of those exclusion applications pending determination of the criminal charges against Mr Andelman.

7       There followed several variations to the Restraining Order, resulting in only one piece of real estate, the proceeds of the sale of another, two motor vehicles and two bank accounts being restrained.

8       In 2011, Mr Andelman was convicted of 85 counts of theft.  He successfully appealed and on a re-trial was convicted of 82 counts of theft in May 2014.  He was sentenced to 44 months’ imprisonment and did not appeal.

9       That then left the exclusion applications to be decided.  Judge Cohen heard these between 18 and 31 March 2015.  Her Honour refused the applications and gave judgment on 29 April 2015.

10 Section 35 of the Act in these circumstances, provides for automatic forfeiture of the restrained property where the statutory criteria are met.

11 Section 35(1) of the Act relevantly provides that if a person:

“(a) is convicted of a Schedule 2 offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on –

(i)      … (not relevant)

(ii) the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and

(c)     … (not relevant)

(ca)the restrained property is not subject of an application under section 20 that is still pending –

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after –

(d)      the making of the restraining order: or

(e)      the conviction of the accused –

whichever is later.”

12 Section 35(2) of the Act provides that where an exclusion application under s20 has been made, automatic forfeiture will occur where the exclusion application is dismissed or refused by the Court, upon expiry of the appeal period or, if an appeal is lodged, when the appeal is abandoned or determined without an exclusion order being made.

13 Mr Andelman has been convicted of a Schedule 2 offence and there is no exclusion application pending, it having been decided by Judge Cohen. Where an exclusion application has been dismissed, automatic forfeiture occurs upon expiry of the appeal period (s35(2)). Here, the respondents have not lodged an appeal against the Orders of Judge Cohen. The period to appeal expired on 27 May 2015, that is, 28 days after the Orders of Judge Cohen.

14 In these circumstances, the property that was still subject to the Restraining Order has, by operation of the provisions of the Act, been automatically forfeited to the relevant Minister on 27 May 2015. See Director of Public Prosecutions (Vic) v Nguyen; DPP (Vic) v Duncan (2009) 23 VR 66 at [117]-[118].

15 For these reasons, on 12 June 2015, there was no power to stay Judge Cohen’s Orders and, any order that I may have made would have been rendered futile by virtue of the proper workings of the Act.

16 Section 36 of the Act provides that a Court “must” certify that property has been forfeited if requested to do so. Because the property that was the subject of the Restraining Order was forfeited on 27 May 2015, I could not refuse to make the declaration that I made yesterday.

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