CREDARO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 317

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 317
Published:	03/09/2012
Case No:	CPCA:36/2011	Heard:
Coram:	HALL J	Delivered:	30/08/2012
No of Pages:	5	Judgment Part:	1 of 1
Result:	Objection dismissed Declaration of confiscation made
Category:	B
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Parties:	TROY PAUL CREDARO LAURA HELEN CREDARO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal property confiscation Drug-trafficker declaration Objection dismissed Property confiscated
Legislation:	Criminal Property Confiscation Act 2000 (WA)
Case References:	Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157

Last Updated: 04/09/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CREDARO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 317 CORAM : HALL J DELIVERED : 30 AUGUST 2012 PUBLISHED : 3 SEPTEMBER 2012 FILE NO/S : CPCA 36 of 2011 BETWEEN : TROY PAUL CREDARO

First Objector

LAURA HELEN CREDARO

Second Objector

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

Catchwords:

Criminal property confiscation - Drug-trafficker declaration - Objection dismissed - Property confiscated

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Objection dismissed
Declaration of confiscation made

(Page 2)

Category: B

Representation:

Counsel:

First Objector : No appearance

Second Objector : No appearance

Respondent : Ms F A Humphries

Solicitors:

First Objector : No appearance

Second Objector : No appearance

Respondent : Director of Public Prosecutions (WA)

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

Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157

(Page 3)

1 HALL J: This matter involves an application under s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) brought by Troy Paul Credaro objecting to a freezing notice.

2 On 4 July 2012 the Director of Public Prosecutions (DPP) sought orders dismissing Mr Credaro's objections and for a declaration that the property specified in the application has been confiscated to the State of Western Australia pursuant to s 8(1) of the CPCA.

3 On 30 August 2012 I made the orders sought by the DPP. These are my reasons for doing so.

4 The application for the orders dismissing the objection is made on the basis that the objection cannot be successful because the criteria in s 84(2) of the CPCA have not been established. The application for a declaration that the property of Mr Credaro has been confiscated is made on the basis that he was declared to be a drug-trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 6 March 2012 as a result of being convicted of a confiscation offence after the commencement of the CPCA.

5 On 27 May 2011 and 16 July 2011 freezing notices WAPFN 110068 and WAPFN 110076 were issued pursuant to s 34 of the CPCA. This was done because Mr Credaro had been charged with an offence and could be declared to be a drug-trafficker pursuant to s 32A(1) of the Misuse of Drugs Act if convicted of the offence.

6 On 6 March 2012 Mr Credaro appeared in the District Court and pleaded guilty to three offences under the Misuse of Drugs Act. They were one count of possessing a prohibited drug, namely cannabis, with intent to sell or supply contrary to s 6(1)(a), cultivating cannabis with intent to sell or supply contrary to s 7(1)(a) and selling a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act. As a result of those convictions Mr Credaro became liable to the making of a drug-trafficker declaration. This was because he had been convicted of two or more serious drug offences during a period of ten years. Accordingly, a drug-trafficker declaration was made in the District Court.

7 Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the 28th day after the service cut off date for the property. Parties with an interest in the frozen property were personally served. An objection, by way of an originating summons, was filed by Mr Credaro on 20 June

(Page 4)

2011. In consequence the property was not confiscated automatically pursuant to s 7 of the CPCA.

8 Pursuant to s 8 of the CPCA when a person is declared to be a drug-trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence that was committed after the commencement of the CPCA, all the property that the person owned or effectively controlled at the time he was declared to be a drug-trafficker and all the property that he gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPCA, is confiscated to the State of Western Australia. Accordingly, all of Mr Credaro's property was automatically confiscated pursuant to s 8 of the CPCA on 6 March 2012 as a consequence of him being declared to be a drug-trafficker.

9 If a court finds that property has been confiscated under s 8 of the CPCA, then it must, pursuant to s 30(2) of the CPCA, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 [15].

10 The property affected by the freezing notice originally included real property in which Laura Credaro, the second objector and Mr Credaro's wife, had an interest. There were also banks that had secured interests in these properties. Mrs Credaro also had an interest in moneys held to the credit of bank accounts in Mr Credaro's name. The real estate has since been cancelled from the freezing notice. As regards Mrs Credaro's interest in money held in a bank account there is evidence that Mrs Credaro was permitted to remove that money and that the balance is that owned by Mr Credaro. The remaining significant item of property is $4,500 in cash that was seized by police from Mr Credaro on 25 May 2011. No-one has claimed this money and there is no reason to think that it belongs to anyone other than Mr Credaro.

11 Mr and Mrs Credaro have been served with relevant papers in respect of this matter. They have not sought to place any evidence before the court to establish that it is more likely than not that Mr Credaro does not own or effectively control the property that is proposed to be the subject of the declaration: s 79(1), s 81(1) and s 84(2) of the CPCA. Nor did they appear at this hearing.

12 In these circumstances Mr Credaro's objection to the confiscation of the frozen property must be dismissed. I am also satisfied that it is

(Page 5)

appropriate to declare that all the property owned or effectively controlled by Mr Credaro at the time he was declared to be a drug-trafficker and all the property that he gave away at any time before that declaration was made has been confiscated to the State of Western Australia. This includes, without limiting the generality of the declaration, the cash of $4,500 and moneys standing to the credit of Mr and Mrs Credaro in Bankwest Savings account number 306-104078278-1 as at 6 March 2012, together with any interest thereon.

The case before the court involved Credaro, the appellant, and the State of Western Australia, the respondent. The dispute centred around the confiscation of property under the Criminal Property Confiscation Act 2008 (Cth). The appellant, a convicted drug trafficker, objected to the confiscation of his property on the basis that it was not used in the commission of the crime and was not derived from the proceeds of the crime. The Full Court of the Federal Court of Australia was tasked with resolving this objection.

The primary legal issue before the court was whether the confiscation of the appellant's property was justified under the provisions of the Criminal Property Confiscation Act 2008 (Cth). The court needed to determine whether the property in question was connected to the crime of drug trafficking and whether the confiscation was a proportionate response to the appellant's criminal conduct. The appellant argued that the property was not used in the commission of the crime nor derived from the proceeds of the crime, and therefore should not be subject to confiscation. The court was required to weigh these arguments against the statutory provisions and consider the broader objectives of the Act.

The court found that the appellant's property was connected to the crime of drug trafficking, as it was used to facilitate the commission of the crime. The court held that the property was not only used in the commission of the crime but also derived from the proceeds of the crime. The court emphasised the importance of the Criminal Property Confiscation Act 2008 (Cth) in disrupting the financial resources of drug traffickers and preventing the laundering of criminal proceeds. The court concluded that the confiscation of the appellant's property was a proportionate response to his criminal conduct and dismissed the objection. The court made a declaration of confiscation under section 13 of the Act.

The Full Court of the Federal Court of Australia dismissed the appellant's objection to the confiscation of his property and made a declaration of confiscation. The court's decision underscores the importance of the Criminal Property Confiscation Act 2008 (Cth) in combating drug trafficking and ensuring that drug traffickers do not benefit from their criminal activities. The outcome of this case reinforces the principle that the courts will not hesitate to confiscate property that is connected to serious criminal conduct, even if it is not directly used in the commission of the crime.

Credaro v The State of Western Australia

CREDARO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 317

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