Bettson v The State of Western Australia

[2018] WASC 396

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BETTSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 396

CORAM:   ACTING JUSTICE STRK

HEARD:   17 DECEMBER 2018

DELIVERED          :   17 DECEMBER 2018

PUBLISHED           :   17 DECEMBER 2018

FILE NO/S:   CPCA 19 of 2017

BETWEEN:   LEON LASCELLES BETTSON

First Plaintiff

NUR SETYANINGTYAS

Second Plaintiff

SECURE FUNDING PTY LTD

Third Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA

Defendant

Catchwords:

Criminal Property Confiscation - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Confiscation order made

Category:    B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Defendant	:	T Staples

Solicitors:

First Plaintiff	:	Chelmsford Legal
Second Plaintiff	:	Chelmsford Legal
Third Plaintiff	:	Norton Rose Fulbright
Defendant	:	The Director of Public Prosecutions for the State of Western Australia

Case(s) referred to in decision(s):

Ranford v The State of Western Australia [2015] WASC 45

ACTING JUSTICE STRK:

1. This is a matter arising under the Criminal Property Confiscation Act 2000 (WA) (CPCA).

2. Three plaintiffs are named in the proceeding.  The objections pressed by each of the plaintiffs have now been resolved.

3. By an order made by consent on 10 May 2018, the first plaintiff's objection was dismissed.  By an order made by consent on 19 November 2018, the third plaintiff's objection was dismissed. 

4. By an application made by summons filed on 22 November 2018, the Director of Public Prosecutions pressed for orders in the terms set out at sch A to these reasons.  The first order sought the dismissal of the second plaintiff's objection to the confiscation of frozen property made by originating summons dated 10 May 2017.

5. On 10 December 2018, orders were made by consent in the following terms:

   1.The Second Plaintiff's Notice of Objection to Freezing Notice WAPFN170031 is upheld to the extent of $12,500 from the ING Direct Bank Account number 11303694 in the name of Leon Bettson with any interest thereon.

   2.Freezing Notice WAPFN170031 is set aside on all grounds in relation to the sum of $12,500 referred to in paragraph 1 together with any interest thereon.

   3.The Second Plaintiff's objection is otherwise dismissed.

   4.There is no order as to costs.

6. At the hearing of the application, the Director of Public Prosecutions pressed for orders in terms of a minute of amended proposed orders filed on 13 December 2018.  The terms of those orders are set out at sch B to these reasons.

7. The Director of Public Prosecutions applies for a declaration under s 30 of the CPCA that the property specified in paragraph 2 of the application has been confiscated to the State of Western Australia under s 8(1) of the CPCA upon the first plaintiff being declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 13 October 2017 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.

8. Three affidavits were filed in support of the summons: the affidavit of Morgan Charlotte Paling filed 22 November 2018; the affidavit of Laurie Askew filed 28 November 2018; and the affidavit of Eleanor McKirdy filed 29 November 2018.  The applicant also relied upon the outline of written submissions filed on 22 November 2018. 

9. For the reasons set out below, I am prepared to make orders in the terms proposed on behalf of the applicant as set out in sch B.

Legal framework

1. Section 30 of the CPCA provides:

   30. Declarations of confiscation, applying for and making

   (1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.

   (2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.

2. Section 8(1) of the CPCA provides:

   8. Declared drug trafficker, certain property of confiscated

   (1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated ‑ 

   (a)all the property that the person owns or effectively controls at the time the declaration is made;

   (b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.

3. Section 10(1) of the CPCA provides:

   10. Other property, time and effect of confiscation of under s. 6, 7 or 8

   (1)Property (except registrable real property) that is confiscated under section 6, 7 or 8 vests absolutely in the State when the section takes effect in relation to the property.

4. Under s 9 of the CPCA, registrable real property does not vest absolutely in the State unless and until the court makes a declaration under s 30 that the property has been confiscated.

5. In this proceeding, the Director of Public Prosecutions has to prove the following under s 8(1) of the CPCA:

   1.The first plaintiff had been declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.

   2.The declaration was as a result of 'confiscation offence'.  The term 'confiscation offence' is defined in s 141(1) of the CPCA.  It includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.

   3.The offence was committed after the commencement of the CPCA, that is, after 1 January 2001.

   4.The subject property was owned or effectively controlled by the first plaintiff.  (The Glossary to the CPCA defines the term 'owner' to mean, in relation to property, a person who has a legal or equitable interest in the property).

   5.The subject property was so owned or effectively controlled at the time the drug trafficker declaration was made.

6. If the above are proved, then by operation of s 8(1) of the CPCA, the subject property was confiscated at the time the drug trafficker declaration was made, and, by s 10(1) of the CPCA, the property (except registrable real property) vested absolutely in the State at that time.  Further, given the mandatory terms of s 30 of the CPCA, the court will be compelled to make a confiscation declaration confirming that the property had been so confiscated under s 8(1).

7. In short, if the legislative requirements are satisfied, the court is required to make a declaration that the property has been confiscated.[1]

   [1] Ranford v The State of Western Australia [2015] WASC 45 [9].

Determination

1. In all of the circumstances, I am satisfied that the Director of Public Prosecutions has established, on the balance of probabilities, the five matters identified at par 14 above.

2. The first plaintiff was convicted under s 6(1)(a) of the Misuse of Drugs Act of one count of possessing a prohibited drug, namely cannabis, with the intent to sell or supply it to another, committed on 17 March 2017. He was also convicted under s 7(1)(a) of the Misuse of Drugs Act of one count of cultivating a prohibited drug, namely cannabis, with the intent to sell or supply it to another, committed on 17 March 2017. He was declared to be a drug trafficker under s 32(a)(1) of the Misuse of Drugs Act on 13 October 2017 in relation to those convictions.[2] 

   [2] Affidavit of Morgan Charlotte Paling filed 22 November 2018 par 11 'MCP17' and 'MCP18'.

3. The declaration was as a result of the convictions under s 6(1)(a) and s 7(1)(a) of the Misuse of Drugs Act. The offences are punishable by a term of imprisonment of more than two years,[3] and is therefore a 'confiscation offence'.

   [3] Misuse of Drugs Act 1981 (WA) s 34(2).

4. The offence was committed after the commencement of the CPCA. 

5. As to the last two conditions, I find as follows.

6. In relation to the land at Lot 687 on Plan 15752 in Certificate of Title Volume 1759 Folio 211, commonly known as 22 Baltusrol Rise, Connolly, the first defendant is the registered proprietor.[4]

   [4] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP19'.

7. In relation to the land at Lot 2 on Strata Plan 18601 in the Certificate of Title Volume 1862 Folio 448, commonly known as Unit 2/51 Buckingham Drive, Wangara, the first plaintiff is the registered proprietor.[5]

   [5] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP20'.

8. In relation to the moneys standing to the credit of Commonwealth Bank of Australia account numbered 616610840889, on the balance of probabilities, I am satisfied that the moneys are owned or effectively controlled by the first plaintiff. 

9. First, a business transaction account statement of the Commonwealth Bank of Australia for the period 31 March 2017 to 30 June 2017 discloses that account number 616610840889 is held in the name of the first plaintiff trading as 383mx earthmoving.[6]

   [6] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP24'.

10. Secondly, a search of the business name database maintained by the Australian Securities & Investments Commission reveals that the first plaintiff is the business name holder of 383mx earthmoving.[7] 

    [7] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP21'.

11. Thirdly, a search of the 'ABN Lookup' database maintained by the Australian Securities & Investments Commission reveals that the first defendant has an ABN (being ABN 41 374 275 208); and the ABN was for an individual / sole trader, with business name '383mx earthmoving'.

12. In relation to the moneys standing to the credit of Commonwealth Bank of Australia account number 616610840897, on the balance of probabilities, I am satisfied that the moneys are owned or effectively controlled by the first plaintiff. 

13. First, a business transaction account statement of the Commonwealth Bank of Australia for the period 31 December 2016 to 30 March 2017 discloses that account number 616610840897 is held in the name of the first plaintiff trading as Marque marine fish.[8]

    [8] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP25'.

14. Secondly, a search of the business name database maintained by the Australian Securities & Investments Commission reveals that the first plaintiff is the business name holder of Marque marine fish.[9] 

    [9] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP22'.

15. Thirdly, a search of the 'ABN Lookup' database maintained by the Australian Securities & Investments Commission reveals that the first defendant has an ABN (being ABN 41 374 275 208); and the ABN was for an individual / sole trader, also with business name 'Marque marine fish'.

16. In relation to the moneys standing to the credit of Commonwealth Bank of Australia account number 600010168463, on the balance of probabilities, I am satisfied that the moneys are owned or effectively controlled by the first plaintiff as a business transaction account statement of the Commonwealth Bank of Australia for the period 14 February 2017 to 13 May 2017 discloses that account number 600010168463 is held in the name of the first plaintiff.[10]

    [10] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP26'.

17. In relation to the moneys standing to the credit of Commonwealth Bank of Australia account numbered 716710997857, on the balance of probabilities, I am satisfied that the moneys are owned or effectively controlled by the first plaintiff as a business transaction account statement of the Commonwealth Bank of Australia for the period 12 March 2017 to 11 April 2017 discloses that account number 716710997857 is held in the name of the first plaintiff.[11]

    [11] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP27'.

18. In relation to the moneys standing to the credit of ING Direct Bank account numbered 11303694, on the balance of probabilities, I am satisfied that the moneys are owned or effectively controlled by the first plaintiff as a Saving Maximiser account statement of ING Direct Bank for the period 1 January 2017 to 30 June 2017 discloses that account number 11303694 is held in the name of the first plaintiff.[12]

    [12] Affidavit of Morgan Charlotte Paling filed 22 November 2018 'MCP28'.

19. For these reasons I have made orders in terms set out in sch B.

SCHEDULE A

1.The Second Plaintiff's Objection to the confiscation of frozen property made by Originating Summons dated 10 May 2017 is dismissed.

2.The following property that Leon Lascelles Bettson ('BETTSON') owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 13 October 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:

(a)BETTSON's interest as registered proprietor in the land at Lot 687 on Plan 15752 in Certificate of Title Volume 1759 Folio 211, commonly known as 22 Baltusrol Rise, Connolly;

(b)BETTSON's interest as registered proprietor in the land at Lot 2 on Strata Plan 18601 in the Certificate of Title Volume 1862, Folio 448, commonly known as Unit 2/51 Buckingham Drive, Wangara.

(c)Monies standing to the credit of BETTSON trading as 383mx earthmoving in Commonwealth Bank of Australia account numbered 616610840889 as at 13 October 2017 together with any interest thereon;

(d)Monies standing to the credit of BETTSON trading as Marque marine fish in Commonwealth Bank of Australia account numbered 616610840897 as at 13 October 2017 together with any interest thereon;

(e)Monies standing to the credit of BETTSON in Commonwealth Bank of Australia account numbered 600010168463 as at 13 October 2017 together with any interest thereon;

(f)Monies standing to the credit of BETTSON in Commonwealth Bank of Australia account numbered 716710997857 as at 13 October 2017 together with any interest thereon; and

(g)Monies standing to the credit of BETTSON in ING Direct Bank account numbered 11303694 as at 13 October 2017 together with any interest thereon.

3.Such other orders as the Court thinks fit.

SCHEDULE B

1.Pursuant to section 8(1) and section 30 of the Criminal Property Confiscation Act 2000 the following property that Leon Lascelles Bettson ('BETTSON') owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 13 October 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:

(a)BETTSON's interest as registered proprietor in the land at Lot 687 on Plan 15752 in Certificate of Title Volume 1759 Folio 211, commonly known as 22 Baltusrol Rise, Connolly;

(b)BETTSON's interest as registered proprietor in the land at Lot 2 on Strata Plan 18601 in the Certificate of Title Volume 1862, Folio 448, commonly known as Unit 2/51 Buckingham Drive, Wangara.

(c)Monies standing to the credit of BETTSON trading as 383mx earthmoving in Commonwealth Bank of Australia account numbered 616610840889 as at 13 October 2017 together with any interest thereon;

(d)Monies standing to the credit of BETTSON trading as Marque marine fish in Commonwealth Bank of Australia account numbered 616610840897 as at 13 October 2017 together with any interest thereon;

(e)Monies standing to the credit of BETTSON in Commonwealth Bank of Australia account numbered 600010168463 as at 13 October 2017 together with any interest thereon;

(f)Monies standing to the credit of BETTSON in Commonwealth Bank of Australia account numbered 716710997857 as at 13 October 2017 together with any interest thereon; and

(g)Monies standing to the credit of BETTSON in ING Direct Bank account numbered 11303694 as at 13 October 2017 together with any interest thereon subject to the consent orders made by Acting Principal registrar Whitby on 10 December 2018.

2.No order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AB

Research Associate/Orderly to the Honourable Acting Justice Strk

17 DECEMBER 2018