BJF v The State of Western Australia

[2011] WASC 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BJF -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 163

CORAM:   MURRAY J

HEARD:   20 JUNE 2011

DELIVERED          :   24 JUNE 2011

FILE NO/S:   CPCA 79 of 2009

BETWEEN:   BJF

TEF
Applicants

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal property confiscation - Drug offences - Hydroponic cannabis cultivation in shed on property the place of residence of offender and spouse - Objection to confiscation of property - Application by innocent spouse - Criminal use of property - Whether 'property' the shed where cannabis grown or the whole residential property - Whether freezing notice to be set aside - Meaning of undue hardship if the property is confiscated - Practicality of means of making adequate provision for the objector

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 82, s 146, Glossary

Result:

Application dismissed with costs

Category:    A

Representation:

Counsel:

Applicants:     Mr L Levy SC

Respondent:     Mr M Seaman

Solicitors:

Applicants:     D G Price & Co

Respondent:     Director of Public Prosecutions (WA)

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

Bowman v The Queen (1995) 14 WAR 466

Director of Public Prosecutions (NSW) v Milienou (1991) 22 NSWLR 489

R v Kardogeros [1991] 1 VR 269

R v Lake (1989) 44 A Crim R 63

R v Rintel (1991) 3 WAR 527

R v Winand (1994) 73 A Crim R 497

Re George [1992] 2 Qd R 351

Taylor v Attorney‑General (SA) (1991) 55 SASR 462

White v Director of Public Prosecutions (WA) [2011] HCA 20

1. MURRAY J:  On 2 July 2009, police officers executed a Misuse of Drugs Act 1981 (WA) search warrant at a property in Lesmurdie. The property is a large block of land the subject of a certificate of title under the Transfer of Land Act1893 (WA). It is mortgaged. The owners of the property, as joint tenants, are the applicants. They are husband and wife. The property is their place of residence. They have built a house which provides the accommodation for them and their two sons, little boys aged 6 and 9, who attend school in Lesmurdie.

2. Between 10 and 20 metres from the house there is a shed.  When the police attended to execute their search warrant they found it locked.  With the assistance of Mrs F, a key was found and the shed was entered by the police.  Inside they found stored, various innocent items, but in addition there was a hydroponic cannabis cultivation system, which was in operation.  A total of 17 cannabis plants in various stages of maturity were being tended there.  The police also found 198 grams of cannabis material in the shed.  In addition, in a Toyota motor vehicle at the property the police found the sum of $3,000 in cash.

3. Mr F was charged with three offences:  cultivating cannabis with intent to sell or supply, the possession of cannabis with intent to sell or supply, and the possession of the $3,000, money reasonably suspected to have been unlawfully obtained (as the result of dealing in cannabis).  Mrs F was not charged, and it is accepted that she was entirely innocent in relation to the offences committed.  She had no knowledge of Mr F's criminal activities.

4. On 22 February 2010, Mr F was convicted of the three charges and he was fined a total of $6,000. It might be said that he was treated leniently. The possession of cannabis with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act, is, by s 34(2)(a) of that Act, punishable by a fine of $20,000 or imprisonment for 10 years, or both.

5. The cultivation of the prohibited plant, cannabis, with intent to sell or supply, is an offence against s 7(1)(a) of the Misuse of Drugs Act, punishable under s 34(2)(a) of the Act by the imposition of the same penalties as for the possession of the drug with intent to sell or supply. The possession of the money was an offence against s 428(1) of the Criminal Code, which makes it an offence to possess anything reasonably suspected to have been unlawfully obtained.  That is an offence punishable by imprisonment for 2 years and a fine of $24,000.

6. On 28 July 2009, the police obtained the issue of a freezing notice under the Criminal Property Confiscation Act 2000 (WA) (CPCA). That is a notice which places in jeopardy the applicants' continued ownership of the property. The basis for the issue of the notice was that the property was 'crime‑used' within the meaning of s 146 of the CPCA.

7. By consent, in the course of the interlocutory processes leading up to the hearing of the application before me, an objection to the confiscation of the property concerned, an order was made that the applicants be appointed to control and manage the property while the freezing notice was in force.

8. The freezing notice was issued under CPCA, s 34(2), on the basis that the property identified was reasonably suspected to be crime‑used. Section 146 of the Act, so far as material, is in the following terms:

   146.     Term used: crime‑used

   (1)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;

   (b)the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or

   (c)any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

   (2)Without limiting subsection (1), property described in that subsection is crime‑used whether or not -

   (a)the property is also used, or intended or able to be used, for another purpose;

   …

9. By s 141, a confiscation offence is an offence punishable by imprisonment for 2 years or more.  The offences of which Mr F was convicted are therefore confiscation offences.  I shall return later to the question whether the whole of the Lesmurdie property was crime‑used property, for the purposes of the CPCA.

10. The term 'property' is, by s 3 of the CPCA and the Glossary, defined as follows:

    property means -

    (a)real or personal property of any description, wherever situated, whether tangible or intangible; or

    (b)a legal or equitable interest in any property referred to in paragraph (a);

    It is important, for these proceedings, to note that 'property' means either the actual thing, in this case the land, or a legal or equitable interest in the property.

11. This application, by way of objection to the confiscation of the Lesmurdie property flowing from the freezing notice, invokes the court's power under s 81 of the CPCA to set aside the freezing notice. The grounds for doing so are set out in s 82, in the following terms:

    82.     Release of crime‑used property

    (1)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.

    (2)If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

    (3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that -

    (a)the objector is the spouse, a de facto partner or a dependant of an owner of the property;

    (b)the objector is an innocent party, or is less than 18 years old;

    (c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed;

    (d)the objector was usually resident on the property at the time the objection was filed;

    (e)the objector has no other residence at the time of hearing the objection;

    (f)the objector would suffer undue hardship if the property is confiscated; and

    (g)it is not practicable to make adequate provision for the objector by some other means.

    (4)The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that -

    (a)the objector is the owner of the property, or is one of 2 or more owners of the property;

    (b)the property is not effectively controlled by a person who made criminal use of the property;

    (c)the objector is an innocent party in relation to the property; and

    (d)each other owner (if there are more than one) is an innocent party in relation to the property.

    (5)If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector’s share of the property bears to the whole property.

    (6)In an order under subsection (5), the court is to specify the proportion that it finds to be the objector’s share of the property.

    (7)On the application of the DPP or an owner of the property, the court may set aside the freezing notice or freezing order for the property if it also orders the objector to pay to the State an amount equal to the value of the property.

The meaning of the word 'property'

1. There is no question that the freezing notice was properly issued.  In a case such as this, the process of confiscation is governed by the CPCA, s 7(2).  Confiscation of frozen property occurs automatically upon the determination of all objections to confiscation and where the freezing notice is not cancelled or set aside.  While the property is frozen, no person may deal with it in any way:  s 50. 

2. An objection to the confiscation of frozen property may be filed by a person:  s 79.  In this case, there was one notice of objection filed on behalf of both applicants, but I think, in reality under the Act, there are two objections, one by Mr F and one by Mrs F.  It would follow that for confiscation of the property in question to take effect, both objections must be finally determined and the freezing notice must not be cancelled or set aside upon the hearing of both objections.

3. I have set out the material terms of s 82. By s 82(1), the freezing notice may be set aside in respect of the frozen property, ie, the Lesmurdie residential property, if the objector (or, in this case, either of them) establishes on the balance of probabilities that the property is not crime‑used. I have set out the material portions of s 146 which provides the definition of the term 'crime‑used'.

4. It is a ground of both objections that not all of the Lesmurdie property was properly described as 'crime‑used', but merely that portion of the property which is occupied by the shed where the hydroponic cannabis plantation was located and in which the quantity of the drug cannabis was found.  The freezing notice refers solely to the whole of the Lesmurdie property, identified by reference to a particular certificate of title, of which property the applicants are the registered proprietors as joint tenants.  The notice does not refer to any discrete part of that property, and it does not refer to the motor vehicle in which the sum of $3,000 was found.

5. Sections 79 and 82 and, in my view, other like provisions in the CPCA make it clear that it is the property, or an item of property, which is the subject of the freezing notice that is the proper subject of an objection and an order setting aside the freezing notice in respect of a particular identified item of property.  I have mentioned the definition of 'property' in the glossary.  In my opinion, in the statutory context, property may be a particular item of real or personal property identified in the notice, or a recognised legal or equitable interest in such an item of property; in this case, the joint tenancy of each objector.

6. On 8 June 2011, the High Court gave its decision in the case of White v Director of Public Prosecutions (WA) [2011] HCA 20. The court dismissed an appeal against a crime‑used property substitution declaration made under s 22 of the CPCA because the property in question was leased by the appellant and was admittedly crime‑used, but, of course, was not available for confiscation because the offender did not own and did not have 'effective control' of the property, as that term is defined by s 156 of the Act.

7. None of that is presently relevant, but, during the course of the judgments in the High Court, their Honours gave attention to the meaning of the word 'property' in the statutory context to which I have referred.  French CJ, Crennan and Bell JJ said:

   The term 'property' used in a statute may take its ordinary meaning, its legal meaning, or both meanings. The interpretation of the term depends upon the context and purpose of the provision in which it is found. Section 146(1)(b) of the Act refers to 'property … used for storing property'. That usage may be taken to include the exercise of rights over the land or a thing (eg, a container) to store property. It may also extend to the use of things which are the subject of property rights. That extension is intended as appears from s 146(1)(c) which speaks of things done 'in or on the property'. It follows that the term 'property' used in s 146, and therefore having a similar usage in ss 22 and 147, covers the use of property rights of the kind defined in the Glossary and the use of things which are the subject of property rights [12].

8. So far as this case is concerned, I think the term 'property' means that defined item of property, the real estate identified by reference to a Lot described in the certificate of title, all of it and every part of it, as well as the bundle of property rights of the objectors as the joint registered proprietors of the land.  As defined and as the word 'property' is used in the Act, it refers to legal or equitable rights and to the thing which is the subject of those rights. 

9. The word is not capable of referring to that part of the land which was the space occupied by the shed because that thing has no separate existence except as part of the Lot the subject of the particular certificate of title, and there is no capacity to exercise legal or equitable rights in respect of the shed separately from those which attach to the property as a whole, identified in the certificate of title and the subject of the freezing notice.

10. The question then is whether that property was crime used, given that the offending behaviour of Mr F was substantially restricted to, and secretively carried on in, the shed. 

11. In my opinion it was, because it was used directly in the commission of the offences of the possession of cannabis with intent to sell or supply, the possession of unlawfully acquired money, and the cultivation of cannabis with intent to sell or supply. The residential property was the place where those offences were committed. Section 146(1)(a) and (c) apply. As s 146(2)(a) makes clear, it matters not that the property was also used as the home of the family: see generally R v Rintel (1991) 3 WAR 527; Bowman v The Queen (1995) 14 WAR 466.

12. So far as Mr F is concerned, he can rely upon no other ground to have his objection sustained and the freezing notice set aside within s 82(3) or s 82(4). His objection must be dismissed once I have concluded that the Lesmurdie property was crime‑used. However, as s 7 makes clear, whether or not the property is finally confiscated will depend upon the fate of Mrs F's objection, and whether or not the freezing notice is set aside.

The meaning of the term 'undue hardship'

1. Mrs F may not rely upon s 82(4) to have the freezing notice set aside. She is a joint owner of the property with her husband. The property is not 'effectively controlled by a person who made criminal use of the property': s 156. She is an innocent party, but the other owner, Mr F, is not an innocent party in relation to the property. Section 82(5) may apply in relation to the financial arrangements to be made after confiscation and, it is submitted for Mrs F, it may be appropriate to consider orders under s 82(7). But those issues may be put to one side for the moment.

2. So far as the application of s 82(3) is concerned, there are a number of matters which may be shortly dealt with. As I have said, Mrs F is not only an owner of the property, but she is the spouse of the other owner, Mr F. She is an innocent party within the meaning of s 153(1) of the CPCA, because she was in no way involved in the commission of any of the confiscation offences and she did not know, and had no reasonable grounds to suspect, that any of those offences was being committed.

3. As to s 82(3)(c) ‑ (e), Mrs F must prove that it is more likely than not that she was usually resident on the property on 2 July 2009 when the offences were committed, and on 5 August 2009 when her objection was filed. Further, she must establish that she has no other residence now, when the objection is heard.

4. In my view, she establishes those matters.  Mr F works as a plant manager for a contracting company based in Redcliffe.  He earns about $160,000 a year.  By trade, he is qualified as a fitter and turner, and he has worked in that capacity in the mining sector, earning a reasonable income.

5. Mrs F works part‑time.  No doubt she would say that she is a full‑time wife and mother, but in addition she works for about 10 hours a week, and on average earns about $200 net per week.  She is studying at Curtin University for her Bachelor of Education.  She must find it difficult to fit all of those activities in.

6. Mrs F comes from Manjimup.  She has family there; her mother and two brothers.  None of them are wealthy, and there is illness in the family.  Mrs F often needs to travel to Manjimup, particularly to support her mother.

7. Over the years, Mr F has prudently invested his money.  Not only does he, jointly with his wife, own the Lesmurdie property, but they jointly own an investment property, a residential property in Atwell.  The property is rented and the current lease is due to expire in January 2012.  It includes an option to renew for a further 12 months.

8. It is apparent that, throughout, Mrs F has resided on the Lesmurdie property at the family home.  She has no other residence.  The Atwell property is unavailable for this purpose and there can be no suggestion that another residence might be available to her, with family members in Manjimup.

9. As to the question whether, in relation to the application of s 82(3)(f), Mrs F would suffer undue hardship if the Lesmurdie property is confiscated, I note that the term 'undue hardship' is not one defined by the Act. Of course, it is to be construed in the context of s 82, and having regard to the purpose of that enactment.

10. It is helpful, I think, to have regard to the Second Reading Speech of the Attorney General of the day, the Hon Peter Foss MLC, on the introduction of the Criminal Property Confiscation Bill on 4 November 2000 (Hansard, pp 2782 ‑ 3). Referring to the clause of the Bill which became s 82, Mr Foss said:

    A new provision is included in relation to real estate used in, as opposed to being derived from, the commission of a confiscation offence.  This is to benefit the dependant and spouse of a person who used his or her property of residence in the commission of a confiscation offence such as hydroponic drug cultivation, or the use of the property for sexual offences against children.  If the property would otherwise be confiscated, the spouse or dependant of the owner of the property may successfully apply to have the property released.  In order to do so, the spouse or dependant must establish a number of matters, including that they are innocent.   In order to avoid undue hardship to them, the court can either release the property or confiscate the property and make orders for their benefit; for example, to grant a life tenancy to the spouse.  This provision recognises the unjust consequences of confiscating a house used in an offence when it is the residence of the spouse or dependant of the person who used it in the offence.  However, if this happens, the court can order the property owner who used the property in the commission of the offence to pay to the Crown an amount being the value of the property. (my emphasis)

1. It is evident from the terms of s 82 that s 82(3) does not simply apply to the situation where, as in this case, the property in question is the residence or matrimonial home of an innocent objector. But in this case it is certainly appropriate that the term 'undue hardship' should be construed, having regard to the essential thrust of the section and the protection it was designed to afford to a person in Mrs F's position.

2. I have said that the term 'undue hardship' used in s 82(3)(f) is not a term defined in the Act. Its meaning is therefore a matter of construction of the provision, and I have referred to the extrinsic aid of the Second Reading Speech. Counsel were unable to cite any relevant authority as to the meaning of the term, although a number of decisions concerning the meaning of the word 'hardship', or the term 'undue hardship', in different statutory contexts, were cited to me.

3. In my opinion, care must be taken in considering the application of those decisions within the statutory context of the CPCA.  The point is exemplified by the fact that the CPCA has a quite different structure to its statutory predecessor, the Crimes (Confiscation of Profits) Act 1988 (WA) (the 1988 Act), a piece of legislation which had distinct parallels in other Australian jurisdictions such as New South Wales, Victoria, Queensland and South Australia.

4. Under s 6 of the 1988 Act, as part of the sentencing process, an application could be made by the Crown against the offender for a forfeiture order in respect of particular property or a pecuniary penalty order. Section 10 of the 1988 Act made the grant of such an order a matter of the exercise of discretion. A forfeiture order could be made by the court if it considered it to be 'appropriate' to do so in respect of what these days might be described as crime‑used property and crime‑derived property, the latter being (to put it shortly) property acquired out of the profits of the commission of a criminal offence or offences.

5. Section 10(2) of the 1988 Act provided:

   (2)In considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to -

   (a)the use that is ordinarily made, or had been intended to be made, of the property; and

   (b)any hardship that may reasonably be likely to be caused to any person by the order.

6. I have mentioned that such an order was made as part of the sentencing process.  The Sentencing Act 1995 (WA), s 8(3), then provided:

   (3)The fact that property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence is forfeited to the Crown under a written law is not a mitigating factor.

   It will be observed that there was no such prohibition in relation to forfeited crime‑used property.  In the earlier cases there are observations which show that the courts were sensitive to the fact that forfeiture was, whether or not a mitigating factor, effectively an additional punishment imposed because the property was used in the commission of the offence or was acquired out of the profits of the criminal activity.

7. That position did not change until after the enactment of the CPCA in 2000. Section 8(3) was repealed and s 8 was amended by the enactment of subs (3), (3a) and (6), by the Criminal Law Amendment (Criminal Property) Act 2004 (WA), s 7. The newly enacted subsections are as follows:

   (3)The fact that criminal property confiscation has occurred or may occur is not a mitigating factor.

   (3a)However, except in the case of derived property, facilitation by the offender of criminal property confiscation is a mitigating factor.

   …

   (6)In this section -

   criminal property confiscation means —

   (a)confiscation of derived property or any other property under section 6, 7 or 8 of the Criminal Property Confiscation Act 2000; or

   (b)confiscation or forfeiture to the State of derived property under any other written law;

   derived property means property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence.

8. It can be seen, therefore, that apart from the cooperation rendered by an offender who facilitates the confiscation of crime‑used property, the confiscation of property is cut completely free of the sentencing process.  The loss of property by way of the application of the CPCA is not a factor which operates in mitigation of punishment of the offender.

9. In those circumstances, whether the objector is an innocent party or an offender, it would not be appropriate, in considering whether a freezing notice or freezing order should be set aside because the objector would suffer undue hardship if the property is confiscated, to approach the matter by having regard to the same considerations as those formerly employed by the courts in considering whether or not to exercise the discretion to order forfeiture.

10. It would, I think, no longer be appropriate to approach the question of the operation of s 82(3) in the terms proposed by Malcolm CJ, in relation to the question of forfeiture arising under s 10 of the 1988 Act, in R v Rintel at 532:

    Where an offender has already been sentenced to the payment of a fine or to imprisonment, or both, for the commission of an offence, that is a relevant circumstance in the context of an application for forfeiture of property under s 10 of the Confiscation of Profits Act.  The question of forfeiture should be approached on the basis that the sentence imposed was that which was considered proportionate to the gravity of the offence, by taking into account the nature of the offence and the circumstances under which it was committed, together with the personal factors relating to the particular offender.  Because forfeiture is an additional punishment to be imposed at discretion there must, however, be some proportionality between the totality of the final outcome in the event of forfeiture, and the gravity of the offence. 

11. Much the same approach was taken in other decisions in relation to comparable legislation.  Reference may be made to such cases as R v Lake (1989) 44 A Crim R 63; Taylor v Attorney‑General (SA) (1991) 55 SASR 462; Re George [1992] 2 Qd R 351; Director of Public Prosecutions (NSW) v Milienou (1991) 22 NSWLR 489; R v Kardogeros [1991] 1 VR 269; and R v Winand (1994) 73 A Crim R 497. The last‑mentioned case was followed in Bowman, a decision of the Court of Criminal Appeal (Murray, Owen and Parker JJ), where, at 472 ‑ 473, Parker J listed many of the considerations relevant to the exercise of the discretion.  His Honour included the question of hardship, arising out of s 10(2)(b), in that list.

12. Ultimately, the conclusion of Parker J, Murray and Owen JJ agreeing, was that the principle which governed the exercise of the discretion was one of proportionality.  His Honour said:

    While the precise formulations quoted above vary, it does not appear that this is intended to reflect any difference of approach to the underlying principle.  It is clear that the scheme of the Act is to provide an additional and strong deterrent, in particular one which affects monetary profits from crime, but it would not be appropriate to order forfeiture where the effect of forfeiture would be disproportionate to the gravity of the offence (474).

13. In the end, it seems to me that, having regard to the structure of the CPCA, that can no longer be held to be the correct approach.  The question of undue hardship requires a judgment about the impact of confiscation upon the innocent objector in the particular circumstances of the case.

14. Lake is a decision of the Court of Criminal Appeal of NSW, concerned with the then recently enacted Crimes (Confiscation of Profits) Act 1985 (NSW). Kirby P, Lee CJ at CL and McInerney J agreeing, said:

    In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore, that can give rise to the relief under s5(1)(b)(ii). The provision for relief on that ground must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant. Otherwise the Act would have, within it, the seeds of its own ineffectiveness in every case (66 ‑ 67).

15. Bearing that in mind, it seems to me that, in the context of s 82, the term 'undue hardship' bears its ordinary meaning. The Oxford English Dictionary refers, among other things, to hardship being the quality of being hard to bear, painful, difficult, involving suffering or privation.  The adjective 'undue', in its dictionary meaning, requires a comparison of the hardship found with what might ordinarily be encountered from the occurrence of the event which creates the hardship, so that the hardship suffered goes beyond what is warranted and becomes excessive or disproportionate.

16. In the context of this legislation, an objector may be held to suffer undue hardship if the property is confiscated because that person would, more likely than not, suffer greater hardship or deprivation than would ordinarily flow from the confiscation, to a degree or of a kind that causes the court to conclude that such hardship should not be imposed on the objector.

The practicability of other means to make adequate provision for the objector

1. It is necessary, in my view, in considering the question of undue hardship under s 82(3)(f), that the court should not overlook the question whether it is practicable or not to make adequate provision for the objector by some other means, the consideration arising under s 82(3)(g). The two matters are linked. The court could only rarely set aside a freezing notice or order on the ground of undue hardship flowing from the confiscation of the property if it is practicable to make adequate provision for the objector by some means other than setting aside the freezing notice or order, thereby preventing the confiscation.

2. I have mentioned something of the applicants' financial circumstances.  Mr F has a reasonable income.  The two properties he owns are mortgaged.  There is no suggestion that, with the small assistance derived from Mrs F's part‑time employment, there is any undue difficulty in supporting the family in their ordinary activities.  In addition, of course, there is the rental income derived from the Atwell property.  There is no evidence about that before the court.

3. The information provided by Mr F in relation to the mortgages, the expenditure on the acquisition of the properties, the expenditure on the improvement of the Lesmurdie property and matters of that kind, is old information, as at October 2009.  It is not possible to say what is the applicants' equity in the Lesmurdie property.  All I am told is that, as at October 2009, the applicants had paid off just under $467,000 in respect of both mortgages, the total original loan being $1.147 M, leaving a total indebtedness at that time of about $680,000.  It is not possible to say what proportion of that would be attributable to the Lesmurdie property.

4. However, Mr F did recently obtain a valuation of the Lesmurdie property from the local real estate agent.  They suggested the Lesmurdie property could be sold for between $950,000 and $985,000.  It seems to be clear that the applicants' equity in that property would be a substantial portion of the likely sale price.

5. If confiscation is to be permitted to occur, it is clear that the court should make an order under s 83(5), that when the property is sold after confiscation, Mrs F should be paid a sum equal to half of the net proceeds of the sale, equivalent to her half share in the property, flowing from her undivided half‑share as one of the two joint tenants.

6. There is no suggestion that this marriage is at an end.  I proceed upon the basis that the family will continue to stay together.  Mr F will continue to support the family.  So far as residential accommodation is concerned, upon the loss of the Lesmurdie property, it is not presently possible for the family to occupy the Atwell property.  They would have to rent or purchase another property.  There is no evidence to suggest that the family, and specifically Mrs F whose objection is under consideration, would not have adequate provision made for her accommodation.

My conclusion about the objections

1. I have said that the objection of Mr F must be determined against him.  Whether the objection of Mrs F may be sustained depends on the question whether she has established that it is more likely than not that she would suffer undue hardship if the property was confiscated, a question to be decided in the light of my conclusion that she has not established that it is impracticable to make adequate provision for her by the means to which I have referred above.

2. It is undoubtedly the case that the loss of the Lesmurdie home would be a significant hardship.  Mrs F and the children are entirely innocent parties.  The Lesmurdie house is near the school attended by the children.  It is a property in which the family has invested much, financially and in effort, to achieve its acquisition and improvement.  I accept that there is no intention to sell the Lesmurdie property in an effort to make a profit by so doing.  This property was to be the family's home for the foreseeable future.

3. But all of those matters are consequences of the loss of the property by its confiscation.  The hardship is likely to be significant, but I am not persuaded that undue hardship would be occasioned by allowing the Act to take its course.

4. Certainly, the magnitude of the loss, having regard to the nature of the property and its use, and the fact that Mrs F is an innocent party, cannot, without more, be enough to constitute undue hardship.  Were it so, to adopt the words of Kirby P in Lake, it could never be the case that there could be confiscation when crime‑used property was the home of an innocent party who was completely unaware of the use to which the property was being put.  The Act would, in that case, certainly carry with it the seeds of its own ineffectiveness.

5. The remaining question is the operation of s 82(7). The applicants in fact make no application that I should set aside the freezing notice on the ground that they should, together, be ordered to pay to the State an amount equal to the value of the property. Certainly no such application is made by the DPP. But the question was referred to by counsel for the applicants in the course of argument. In my view, I could not take this course. There is no evidence to support the proposition that I could make such an order so as to achieve the retention of the property. There is no evidence that the applicants have the means to effectively buy back the Lesmurdie property by paying to the State its net value, the value which would remain after discharging the mortgage debt.

6. I will not make an order under s 82(7). I do not set aside the freezing notice. The application on behalf of both objectors is finally determined and dismissed. The Lesmurdie property is confiscated under the terms of s 7(2)(b). I do, however, make the order under s 82(5) that, when the property is sold, Mrs F is to be paid an amount equal to her one‑half share as a joint tenant. I order that the applicants pay the respondent's costs of the proceedings, to be taxed if not agreed. By s 102(1) of the CPCA, proceedings on an application under the Act are taken to be civil proceedings, for all purposes.