JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA 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 86Re 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.