BA v The State of Western Australia
[2012] WASC 92
•2 MARCH 2012
BA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 92 | |
| Case No: | CPCA:34/2008 | 1 & 2 MARCH 2012 | |
| Coram: | SIMMONDS J | 2/03/12 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Objection dismissed | ||
| B | |||
| PDF Version |
| Parties: | BA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Freezing notice in respect of 'crimeused property' Offence of use of electronic communication with intent to procure person the offender believed to be under the age of 16 to engage in sexual activity Objection to confiscation of property Construction of defined term 'crimeused property' in its application to an offence under ch XXII of the Criminal Code (WA) by reference to the Criminal Property Confiscation Act 2000 (WA) s 146(3) as well as s 146(1)(a) Whether definition applies only to circumstances as at time freezing notice issued |
Legislation: | Criminal Code (WA), s 204B Criminal Property Confiscation Act 2000 (WA), s 4(d), s 7(2), s 82, s 102, s 107, s 146, s 148 |
Case References: | Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 White v Director of Public Prosecutions (WA) [2011] HCA 20; (2011) 243 CLR 478 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Freezing notice in respect of 'crimeused property' - Offence of use of electronic communication with intent to procure person the offender believed to be under the age of 16 to engage in sexual activity - Objection to confiscation of property - Construction of defined term 'crimeused property' in its application to an offence under ch XXII of the Criminal Code (WA) by reference to the Criminal Property Confiscation Act 2000 (WA) s 146(3) as well as s 146(1)(a) - Whether definition applies only to circumstances as at time freezing notice issued
Legislation:
Criminal Code (WA), s 204B
Criminal Property Confiscation Act 2000 (WA), s 4(d), s 7(2), s 82, s 102, s 107, s 146, s 148
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Result:
Objection dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr M Seaman
Solicitors:
Plaintiff : In person
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249
White v Director of Public Prosecutions (WA) [2011] HCA 20; (2011) 243 CLR 478
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- SIMMONDS J:
(This decision was delivered orally on 2 March 2012 and has been edited from the transcript.)
1 This is an objection to the confiscation of property frozen under a freezing notice that made the relevant property its subject by describing the property as 'crime-used' property, a defined term under the Criminal Property Confiscation Act 2000 (WA), s 146. The objector, BA, was convicted in the District Court on his pleas of guilty of a series of offences including a number under Criminal Code (WA) (Code), s 204B(2)(b). That is the offence of the use of electronic communication with the intent to procure a person that the offender believed to be under the age of 16 to engage in sexual activity. The charges of the offences against Code s 204B(2)(b) all stated that the offences occurred in a community north of Perth. I believe I can take judicial notice of the fact that this community is a small one. The objector was sentenced on all of the offences to which he pleaded guilty to a total effective term of immediate imprisonment of 3½ years with eligibility for parole. He is presently serving that sentence. He appeared before me in the hearing by video-link from the facility where he was serving that sentence.
2 I should note that in an objection of this kind the burden of proof the objection should be upheld is on the objector. I refer for this purpose to Criminal Property Confiscation Act s 82, to which I will return. The objector can draw on any evidence in support of his objection from whatever source where that is material properly before me.
3 I have carefully considered all the matter properly before me and the law under the Criminal Property Confiscation Act. The matter properly before me, as I will explain, is evidence provided to the court for the Director of Public Prosecutions, as well as other material, whether or not also so provided to the court, referred to in Criminal Property Confiscation Act s 107. Also before me are the submissions of the parties, including the objector, BA, with assistance from his mother, who I allowed to make statements to me. She was able to be personally present at court under conditions of some personal difficulty, I must recognise, and I acknowledge her assistance. I also had submissions for the Director of Public Prosecutions, both in writing, as I will explain, and orally, from Mr Seaman for the Director.
4 On all of that material I have decided I must dismiss the objection. The balance of these reasons will explain why I do this. I note that the
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- only evidence put before the court as evidence expressly in relation to the objection is that in an affidavit of AB sworn 12 April 2011, filed for the Director of Public Prosecutions in response to orders directed to both parties for them to provide affidavit evidence, orders made on 31 March 2011. There is also material in the file in the form of an affidavit of IJ sworn 10 February 2011, in support of an application, made by the Director of Public Prosecutions but not subsequently pressed, to revoke management orders in respect of the frozen property. I consider that I can have regard to that evidence, although my decision does not depend in any way upon it.
5 There was no evidence provided to me or provided to the court as expressly relevant to the objection from the objector BA.
6 Section 107 of the Criminal Property Confiscation Act says this:
In any proceedings under this Act in relation to property, if a person has been convicted of the relevant confiscation offence, the court may have regard to any or all of the following -
(a) a transcript of the evidence given in any proceedings for the offence;
(b) the sentencing transcript;
(c) any statement, deposition, exhibit or other material before a court in any proceedings for the offence;
(d) a copy of any statement that was served on the person, or that would have been served on the person if the person had not absconded.
7 As I will explain, s 107(c) is of particular relevance here because before the sentencing court, the District Court, when BA was sentenced in 2009 was the prosecution brief with the witness statements it contained. As it happened, in addition BA had been provided with a copy of that prosecution brief in relation to his objection by the office of the Director of Public Prosecutions, as explained in an annexure to AB's affidavit.
8 The objector appeared before me, as it seems he had appeared in previous hearings in relation to his objection, in a self-represented capacity. That is to say, he had no legal representative. Further, I understood he had not had the benefit of any legal advice in relation to his objection. Indeed, the hearing of his objection had been adjourned on a number of occasions, beginning at least in September 2011, to permit him,
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- as he indicated he wished, to obtain legal advice and possibly legal representation.
9 I should add at this point that, in view of the history of the previous hearings directed to his objection, and in particular the hearing in November 2011 before his Honour the Chief Justice and in January of this year before his Honour Allanson J, with the latter hearing providing for the hearing before me, a sufficient opportunity has been allowed to the objector to obtain legal advice and legal representation. The time has now arrived to determine the objection.
10 I say this, taking account of the seriousness of the matter for the objector. It is the case, of course, under the Criminal Property Confiscation Act that proceedings by way of the determination of an objection are civil proceedings (s 102(1)); but they are proceedings capable of having the gravest consequences for the person who is the objector. Here my attention was forcefully drawn to the seriousness of the objection for the offender by himself and by his mother. The seriousness derived from the fact, as is common ground before me, that the property the subject of the freezing notice was the residence of the objector in the small community north of Perth. I call that residence from now on 'the property of the objector'.
11 The property of the objector is property of which the objector was and is currently the registered owner. He has no other residence. I further accept that were the objector to lose this property, that is to say were the property to be confiscated under the Criminal Property Confiscation Act, its loss would or might cause him to suffer undue hardship on his release from prison, that hardship representing both the fact he had lost his residence and the fact that, depending on the condition of the real estate market at the time and the amount owed on the mortgage on the property which I understand it is subject to, he would not have proceeds from the property that would enable him to restart his life.
12 The matter of hardship, however, is not limited to the matters I have just described. Both BA, and more particularly his mother, emphasise what they refer to, and I believe not with undue exaggeration, as punishment of the objector and the family in addition to the sentence of immediate imprisonment the objector is presently serving for his offending. This additional punishment arose from the deterioration of the property of the objector. That deterioration arose from the fact that the property of the objector was a residence that could not be used for that purpose, as the objector and his family understood the position. The
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- objector had obtained a custody and management order in respect of the property of the objector; and his parents on his behalf had endeavoured to maintain the property.
13 However, the property of the objector had deteriorated, notwithstanding their efforts, as a result of a number of factors beyond their control. The deterioration represents not only an irrecoverable loss of value of the property but, in a small community like the one in question, also has caused its own damage, additional to the imprisonment of the offender, being to his reputation and to the reputation of his family. Unfortunately, as I explained at the hearing, under the Criminal Property Confiscation Act undue hardship stemming from confiscation, including undue hardship of the most severe kind, is not a defence to confiscation of property under the legislation on any of the grounds it provides for, including confiscation of crime-used property. This is with the exception of the provision made in s 82(3)(f) of the Criminal Property Confiscation Act. However, that provision has no possible application to this objection: see s 82(3)(a) and (c). I do not doubt that the potential effect of the Criminal Property Confiscation Act in a case like this one is to work undue hardship in addition to that worked by the sentence of imprisonment on the offender.
14 Both the objector and his mother referred to the particular character of the hardship in their case beyond what I have already referred to. They identified that particular character in the fact that the property of the objector could not on anyone's view represent the proceeds of the offending. There was no sense in which the offender was enriched from his offending by that property.
15 However, again as I explained in the hearing, the Criminal Property Confiscation Act provides for the confiscation not only of frozen property representing the proceeds of crime. I should add that frozen property representing the proceeds of crime is subject to confiscation under s 7(2)(a) of the legislation, as (see s 4(d) and the Glossary in the Criminal Property Confiscation Act) 'crime-derived property' (see also s 148). The property here was not frozen on that ground.
16 However, the Criminal Property Confiscation Act also provides for the confiscation of frozen property which was used in or in connection with the commission of an offence: see s 4(c), read with s 7(2)(a) and the Glossary 'frozen'. The Criminal Property Confiscation Act defines property of that kind by using the term 'crime-used property' and defining it in s 146. The freezing notice in this case, as I have already said on a
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- number of occasions, referred to the property of the objector the subject of the freezing notice as crime-used property.
17 I considered, as I believe I had to consider, the objector to be saying to me that the objection was on the basis that the property of the objector was not properly subject to the freezing notice and it was not properly subject to the freezing notice because it was not crime-used property: see s 82(1) of the Criminal Property Confiscation Act. That provision, s 82(1), says this:
The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime-used if the objector establishes that it is more likely than not that the property is not crime-used.
- It is for that reason I said at the outset that the burden of proof is on the objector.
18 I further took the objector to be saying that, although he had put no evidence before the court, the evidence the court did have, including material it could properly have regard to under Criminal Property Confiscation Act s 107, was not sufficient as a basis for concluding that the property of the objector was crime-used property.
19 Approaching what I was told by BA in those ways, I am required to consider the definition of 'crime-used property' in the Criminal Property Confiscation Act and the evidence and other material properly before me.
20 I turn to the definition of crime-used property in the Criminal Property Confiscation Act. The definition of crime-used property in the Criminal Property Confiscation Act is a broad one, at least so far as offences under Criminal Code s 204B that I have already referred to are concerned. Section 204B appears in ch XXII of the Code. For offences in that chapter, Criminal Property Confiscation Act s 146(3) says this:
Without limiting subsection (1) or (2), any property in or on which an offence under chapter XXII or XXXI of the Criminal Code is committed is crime-used property.
21 Section 146 of the Criminal Property Confiscation Act, including s 146(3), has recently been considered by the Court of Appeal in Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 [34]. In that decision, at that paragraph, her Honour the President of the Court of Appeal, McLure P, with Owen and Buss JJA agreeing, said this about s 146(3):
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- A construction of s 146(1)(a) and (c) that excludes mere presence on or access to land from its scope can have no application to s 146(3), the language of which admits of no ambiguity. The only link required under sub-section (3) is that the relevant offence be committed in or on the property.
22 I should note that the offence being considered in Director of Public Prosecutions v White was not one to which s 146(3) of the Criminal Property Confiscation Act applied. Therefore, as I understand the decision, the statement I have just read out was obiter. However, the statement is clear and expressed without qualification. I consider I am bound to follow it. In any event, it seems to me to reflect the plain terms of s 146(3).
23 I should further note that the decision in Director of Public Prosecutions v White went to the High Court of Australia on appeal. The High Court of Australia in White v Director of Public Prosecutions (WA) [2011] HCA 20; (2011) 243 CLR 478 dismissed the appeal. However, the High Court did not consider, and did not in any way address, the construction of s 146(3) by the Court of Appeal.
24 I should note that the Director of Public Prosecutions provided the objector and the court with written submissions dated 7 April 2011 indicating that the property of the objector was, in its submission, liable to be confiscated as the objector had committed the offences under Criminal Code s 204B while he was in the property of the objector. In particular, on those submissions, the objector did this by conducting electronic communications from his computer at the property of the objector. I refer to par 4 of the submissions, being the next paragraph after par 5 - there appear to be two par 4s in the submissions - when read with par 7 and the par 4 before par 5. The submissions that I have referred to do not refer to any particular matter in the affidavits of AB, or of IJ, for that matter, or, as I read those submissions, in the prosecution brief that showed that the objector did conduct electronic communications from his computer at the property of the objector.
25 However, at the hearing before me my attention was drawn to material from the prosecution brief which the annexure to an affidavit of AB, as I have said, indicates was supplied to the objector. In any event this was a matter to which I can have regard under s 107 of the Criminal Property Confiscation Act. That material, it was common ground, was the basis of a charge or charges of offending under Code s 204B of which the objector was convicted on his pleas of guilty. That material shows the objector used a web cam in an exchange with an undercover officer. The
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- material in the prosecution brief to which my attention was drawn was also evidence of the use by the objector of his computer in the property of the objector, including his web cam, over the period to which that offending related. It appears in a witness statement of the person with whom the objector was living at the property of the objector at the time.
26 I accept that this was evidence to which I can properly have regard, showing that the offender committed the offence on the property of the objector within Criminal Property Confiscation Act s 146(3).
27 The offender pointed out to me that the only 'property' referred to in the charge for the purpose of the relevant communication was just that, an electronic communication. That might be readily extended to the computer or other electronic device used for the purpose of the communication, but the land was hardly a communicating device. I accept that understanding of the charge, but I repeat the language of s 146(3). It is plain that the legislature did not mean that s 146(3) should be restricted in that way.
28 I then go to the fact, as was the case stated in the written submissions of the Director of Public Prosecutions dated 7 April 2011, that s 146(3) of the Criminal Property Confiscation Act was only an alternative to the other basis upon which the submissions put that the property of the objector was crime-used property.
29 That other basis was Criminal Property Confiscation Act s 146(1)(a). See the par 4 that appears after par 5, read with par 5 and par 6 as well as the par 4 that does appear before par 5. As I have indicated, the Court of Appeal in Director of Public Prosecutions v White stated in [34] that the definition of crime-used property in Criminal Property Confiscation Act s 146(1)(a) and (c), unlike that in s 146(3), excludes 'mere presence on or access to land' from its scope.
30 I note the wording of s 146(1)(a) and I will emphasise particular words in it. Section 146(1)(a) says this:
For the purposes of this Act property is crime-used if -
(a) the property is or was used or intended for use directly or indirectly in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence.
31 I note from Director of Public Prosecutions v White [31] - [33] where McLure P, Owen and Buss JJA agreeing, addresses the meaning of
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- s 146(1) to the extent that it appears to be relevant to me. These paragraphs read:
If the legislative intention is that mere presence on or access over land on which an offence is committed is not of itself sufficient to render the land crime-used under s 146(1), that intention can only be given effect to by means of the statutory connector between the relevant use, act or omission and the confiscation offence. The expression 'in connection with' requires that there be a link between the relevant use of, or act or omission on, the property on the one hand and the commission or facilitating the commission of a confiscation offence on the other.
The words 'in connection with' are of wide import and, subject to the context in which they are used, are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, 2. They can readily extend to matters leading up to and after the confiscation offence. Macfarlane J in the Canadian case of Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638, said:
'One of the very generally accepted meanings of "connection" is "relation between things one of which is bound up with or involved in another"; or again "having to do with". The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase "having to do with" perhaps gives as good a suggestion of the meaning as could be had (639).'
It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate. However, having regard to the consequence of falling within the definition of crime-used, it is not sufficient if the relationship be merely tenuous and remote. The requisite relationship would fall between these two extremes and involve matters of degree and judgment. In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations.
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33 That exchange included a reference to the objector indicating - and I must necessarily refer to this because of the way in which the Court of Appeal has indicated I must determine as a matter of judgment the connection between the relevant property, here the property of the objector, and the offending - sexual activity would occur 'in my bed'. I accept that that evidence was an indication that the property of the objector was 'intended for use in connection with the commission of a confiscation offence'. It would certainly be conduct that would occur after the commission of the offence; but it was an important part of that offence, as indicated by the context of the exchange in which the reference occurred.
34 Again I stress I have no other relevant evidence on the matter than that I have referred to.
35 The objector reminded me that the freezing notice of which the property of the objector was the subject was dated 6 February 2008. The passage in the exchange with the undercover officer was in an exchange on 1 January 2009. That exchange was the basis of a separate offence under s 204B.
36 The objector asked in what way the freezing notice could be justified under s 146(1)(a) where the relevant confiscation offence had not by that point, that of when the freezing notice was issued, occurred.
37 The answer, it seems to me, lies in the language of the Criminal Property Confiscation Act s 82(1), which I set out earlier.
38 That language, it seems to me, focuses upon the time at which the objector seeks to establish that his objection has been made out as more likely than not that the property is not crime-used. It seems to me, at least in a case where the freezing notice at the time of issuance was one in respect of property at that point that was crime-used, that it is the case that the existence of a subsequent offence in which the property is crime-used may also be relied upon.
39 However, I would go further than that. It seems to me, having regard to s 82(1) and the definition of 'crime-used' in s 146, that in the context where the freezing notice may have been issued at a time when the property was not in fact crime-used, or, in the language of s 82(1), at that time the objector could have established on the balance of probabilities that the property was not crime-used, that is not sufficient to sustain the objection if, by virtue of subsequent offending, the objector is unable in respect of that subsequent offending to establish that the property is not
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- crime-used. That is to say, it is not essential, in my view, that the freezing notice was properly issued at the time at which it was issued.
40 On that basis I have to conclude in my view that the property of the objector was crime-used property, or rather that there was only evidence it was crime-used property within the meaning of s 146(1)(a) as well as s 146(3). It follows from this analysis of the two bases of the submissions of the Director of Public Prosecutions in the written submissions of 7 April 2011 which were pursued in the hearing before me that the objector has not discharged the burden of proof in s 82(1) of the Criminal Property Confiscation Act. As he has not done that, the objection must be dismissed.
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