Commissioner of the Australian Federal Police v Pratten (No 2)

[2017] NSWSC 1172

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Pratten (No 2) [2017] NSWSC 1172
Hearing dates:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Declaration orders made
Catchwords:	PROCEEDS OF CRIME – application for declaration that property has been forfeited – s 95 Proceeds of Crime Act 2002 (Cth) – property statutorily forfeited in July 2017 – no utility in adjournment – declaration made
Legislation Cited:	Proceeds of Crime Act 2002 (Cth) ss 92, 95
Cases Cited:	Commissioner of the Australian Federal Police v Pratten [2017] NSWSC 927 R v Pratten (No 25) [2016] NSWSC 539 Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285; 177 A Crim R 34
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Timothy Charles Pratten (Defendant)
Representation:	Counsel: Mr D Tynan (Plaintiff) Mr Pratten (in person)   Solicitors: Commissioner of the Australian Federal Police
File Number(s):	2011/372370

Judgment

1. HIS HONOUR: This is an application by the Commissioner of the Australian Federal Police (“the plaintiff”), for a declaration pursuant to s 95 of the Proceeds of Crime Act 2002 (Cth) (“the Act”). The background to the proceedings is set out in my judgment of Commissioner of the Australian Federal Police v Pratten [2017] NSWSC 927, which I handed down on 14 July 2017.

2. Briefly, as to the history of the matter, on 21 November 2011 Hislop J made restraining orders pursuant to s 17 of the Act in relation to the following items of property:

(a)   one share held by Mr Pratten in Rural & General Insurance Broking Pty Ltd (ACN 093 483 928) and

(b)   10 shares held by Mr Pratten in Sonarpia Pty Ltd (ACN 104 232 082).

3. On 29 April 2016 Mr Pratten was sentenced in relation to seven offences of dishonestly obtaining a financial advantage by deception: R v Pratten (No 25) [2016] NSWSC 539. Statutory forfeiture of the restrained property would have occurred six months after Mr Pratten was sentenced: s 92 of the Act. However, on 28 October 2016 Mr Pratten was granted an extension order pursuant to s 93(1) of the Act for the maximum period allowable under the Act, so that statutory forfeiture pursuant to s 92 would occur on 28 July 2017.

4. By notice of motion filed on 28 October 2016 Mr Pratten, relevantly, sought orders pursuant to ss 29 and 31 of the Act, excluding the property from restraint. By notice of motion filed on 4 April 2017 he sought, amongst other things, orders pursuant to s 94 of the Act excluding the property from forfeiture. Both of those applications were dismissed in Commissioner of the Australian Federal Police v Pratten [2017] NSWSC 927.

5. The Commissioner now seeks an order declaring that the property has been forfeited under Pt 2-3 of the Act.

6. Section 92 of the Act provides, relevantly:

“(1) Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:

(a) a person is convicted of a serious offence; and

(b) either:

(i) at the end of that period, the property is covered by a restraining order under section 17 or 18 against the person that relates to the offence; or

…

(c) the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.

…

(3) The period at the end of which the property is forfeited is:

(a) the 6 month period starting on the conviction day; or

(b) if an extension order is in force at the end of that period – the extended period relating to that extension order.”

7. The "conviction day" is defined in ss 333(a) and 331(1)(a) as the day on which the Court passes sentence for the offence, which in this case was 29 April 2016.

8. Section 93(3) provides:

“The extended period ends if the application under section 30, 31 or 94 is finally determined before the end of that period.”

9. Section 96 of the Act provides:

“Property forfeited under section 92 vests absolutely in the Commonwealth at the time of the forfeiture."

10. Mr Pratten is a person convicted of a serious offence as defined in ss 331 and 338. He is the person that relates to the offence.

11. I accept that the Act is unambiguous in stipulating that when the statutory forfeiture regime in s 92 applies, property forfeits no later than 15 months from the date of conviction.

12. Mr Pratten's applications pursuant to ss 31 and 94 of the Act in relation to the property were dismissed, as I have said, on 14 July 2017.

13. By operation of ss 92 and 93 of the Act, the property statutorily forfeited to the Commonwealth at midnight on 28 July 2017. The property vested absolutely in the Commonwealth at that time: see s 96 of the Act.

14. Mr Pratten was represented in the proceedings before me in July. After judgment was delivered on 14 July, the Commissioner asked for a declaration to be made pursuant to s 95 of the Act. A short minute of the order that was sought was provided to Mr Pratten's solicitor, who was present on that occasion, but it was indicated that he, Mr Blair of Blair Criminal Lawyers, needed to obtain some instructions in relation to it. The matter was left in abeyance at that point, with the hope that there could be reached some agreement and consent as to the making of the declaration.

15. Subsequently, Mr Blair filed a Notice of Ceasing to Act on 28 August 2017. It includes that a notice of intention to file and serve this notice was filed on 9 August 2017 and served on Mr Pratten on 15 August 2017.

16. Mr Pratten, who appears today by way of audio-visual link with the gaol at which he is being held, has sought an adjournment of the proceedings. He said that he has filed a notice of intention to appeal against the judgment delivered on 14 July 2017. He has filed an application for legal aid in respect of that. The adjournment is said to be for the purpose of enabling him to receive legal advice with a view to arguing against the declaration that the Commissioner asks that I make.

17. The Commissioner has referred me to the decision of the Court of Appeal in Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285; 177 A Crim R 34 which points to the futility of appeal proceedings being brought in a matter such as this after property has been statutorily forfeited.

18. I appreciate Mr Pratten's concern that, in his terms, once the property is forfeited it "is gone forever". But the critical point is that the property has already been forfeited as of midnight on 28 July 2017. There is no utility in putting off what I am asked to do today. All that I am asked to do, in effect, is to simply confirm what the legislation clearly and unambiguously says is the situation.

19. I refuse the application for an adjournment.

20. I make the declaration sought in the Short Minutes of Order handed up. For Mr Pratten's benefit, that is:

Pursuant to s 95 of the Act, the Court declares that the items set out in Schedule 1 of these orders have been forfeited under Pt 2-3 of the Act being:

(1) one fully paid share issued to and held by Mr Pratten in Rural & General Insurance Broking Pty Ltd and

(2) 10 fully paid shares issued to and held by Mr Pratten in Sonarpia Pty Ltd.

**********

Amendments

06 September 2017 - corrected representation in coversheet

Decision last updated: 06 September 2017