Director of Public Prosecutions (ACT) v Nguyen
[2019] ACTSC 320
•20 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Nguyen |
Citation: | [2019] ACTSC 320 |
Hearing Dates: | 5 November 2019 |
DecisionDate: | 20 November 2019 |
Before: | Mossop J |
Decision: | See [17] |
Catchwords: | CONFISCATION OF CRIMINAL ASSETS – APPLICATION FOR ORDERS BY CONSENT – Application for civil forfeiture order – application for penalty order – application for exclusion order – consent orders formulated in terms no longer relevant to the restrained property to which they would apply |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 31, 67(3)(a), 252 |
Cases Cited: | Director of Public Prosecutions (ACT) v Can (No 2) [2019] ACTSC 308 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Xuan Hung Nguyen (Defendant) |
Representation: | Counsel D Butler (Plaintiff) M Kukulies-Smith (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant) | |
File Number: | SC 349 of 2018 |
MOSSOP J:
These are proceedings under the Confiscation of Criminal Assets Act 2003 (ACT) (the COCA Act). They were commenced by Originating Application on 31 July 2018. On 6 August 2018 a judge of the court made an ex parte restraining order pursuant to s 31 of the COCA Act. That order related to:
(a)the defendant’s interest in a Crown lease of residential land in Kaleen;
(b)a motor vehicle or, if it had been sold by the defendant, the money received by the defendant from its sale;
(c)$4000 in cash; and
(d)various other items which had been seized by police associated with the artificial cultivation of cannabis.
The restraining order included, pursuant to s 31(3)(a), an order that the ACT Public Trustee and Guardian take control of the restrained property.
An affidavit filed on 13 August 2018 indicates that the Public Trustee and Guardian authorised the Australian Federal Police (AFP) to take possession of all movable property which was subject to restraint or control including the motor vehicle referred to in the restraining order. The Public Trustee and Guardian gave notice to the defendant that he intended to sell the motor vehicle pursuant to s 101 of the COCA Act.
On 4 June 2019 the Director filed an Application in Proceedings which sought, inter alia, a penalty order calculated in accordance with Div 7.3 of the COCA Act.
The Application for a penalty order came before me on 21 June 2019. It was adjourned by consent. On 19 September 2019 the matter was before the Registrar and was adjourned so as to permit negotiation between the parties. On 10 October 2019 the matter was again before the Registrar and the parties indicated that it was to be resolved. On 11 October 2019 the parties sought to file consent orders dated 10 October 2019. The Registrar then listed the matter before me along with the matter the subject of the decision in Director of Public Prosecutions (ACT) v Can (No 2) [2019] ACTSC 308 on 1 November 2019 when it was adjourned until 5 November 2019.
The orders proposed by the parties in the consent orders lodged on 11 October 2019 were:
1.The Defendant pay to the Australian Capital Territory the sum of $10,000, being the agreed value of benefits derived from the commission of an offence assessed under the Confiscation of Criminal Assets Act 2003.
2.The restraining order made by the Australian Capital Territory Supreme Court on 6 August 2018 be revoked upon payment by the Defendant of $10,000.
3.The Application in proceedings dated 21 June 2019 be dismissed with no order as to costs.
The orders proposed by the parties were not consistent with the operation of the COCA Act. Although s 252 of the COCA Act permits the parties to consent to the making of orders, it does so in a limited fashion. It provides that an order may be made by consent “without consideration of the matters which the court would otherwise consider in the proceeding”: s 252(2). It does not provide a power to the court, by consent, to make any order it thinks fit. Thus, consent orders must fit within the framework of orders provided for by the COCA Act.
At the time of the lodging of the consent orders, the criminal proceedings against the defendant had been terminated and hence he was not convicted of any offence. Although the orders contemplated the revocation of the restraining order they did not pick up any statutory power of revocation. Further, the orders proposed did not address how the balance of the items the subject of the restraining order were to be dealt with.
Notwithstanding the terms of the proposed consent orders, the substantive resolution of the proceedings was in fact that all restrained property except for the defendant’s interest in the Crown lease would be forfeited, that an amount of $10,000 would be paid by the defendant and once this was paid then his interest in the real property would be freed of any restraint under the COCA Act. In order to achieve this, at the hearing on 5 November 2019 the parties consented to the following course:
(a)The plaintiff would file an Application for a civil forfeiture order of all restrained property except for the Kaleen property.
(b)The defendant would then file and serve an Application for an exclusion order in relation to the Kaleen property.
(c)The court would then make a penalty order in the sum of $10,000 pursuant to the Application filed by the Director on 4 June 2019.
(d)Upon notification by the plaintiff that the penalty order had been satisfied, the court would then make the exclusion order in relation to the Kaleen property.
The Director filed on 6 November 2019 an Application for a civil forfeiture order pursuant to s 67 of the COCA Act in relation to the motor vehicle, the cash and the other items related to artificial cultivation of cannabis found at the Kaleen property.
On 7 November 2019 the defendant filed an Application for an exclusion order in relation to the defendant’s interest in the Kaleen property.
On 18 November 2019, the court was notified that in anticipation of the making of a penalty order, the defendant had paid $10,000 to the Public Trustee and Guardian. It is not clear why the payment was made to the Public Trustee and Guardian (as opposed to the Territory) but the parties proceeded on the basis that this payment was sufficient to permit an exclusion order to be made.
That leaves the court in the position where, consistently with the consent of the parties, it may make a civil forfeiture order in response to the Application filed on 6 November 2019, a penalty order in the sum of $10,000 pursuant to the Application filed on 4 June 2019 and an exclusion order in relation to the defendant’s interest in the Kaleen property.
The only impediment to this course is that the application for the civil forfeiture order filed by the Director provides, in relation to the motor vehicle, as follows:
1.That pursuant to section 67(1) of the Confiscation of Criminal Assets Act 2003 (the Act), the following property be forfeited to the Australian Capital Territory:
i.a 2013 red Holden Colorado [details set out]; or
ii.if the motor vehicle mentioned in subparagraph i. has been sold by the defendant before the making of this order –the money the defendant received from the sale of the motor vehicle;
…
The formulation of the order in these terms is as a result of copying and pasting from the form of the restraining order that was made on 6 August 2018. The restraining order at that time contemplated the possibility that the defendant may have sold the motor vehicle prior to its seizure pursuant to the orders of the court. However, since the making of those orders, the status of that vehicle will have been determined. That is because, pursuant to the direction of the Public Trustee and Guardian, the vehicle was to be seized and subsequently intended to be sold. Although the status of the vehicle was uncertain at the point when the restraining order was made, it will no longer be uncertain. A simple enquiry of the Public Trustee and Guardian or the AFP would have disclosed whether it was in fact seized and whether, and for how much, it was sold. It is therefore not appropriate to make an order which operates by reference to the possible proceeds of sale received by the defendant as opposed to the Public Trustee and Guardian. I express no view as to whether the making of orders in the alternative is sufficient to comply with a requirement in s 67(3)(a) that an order “must state … the property to which it applies”. However, in my view a forfeiture order must be properly adapted to the circumstances known to exist at the time that it is made. That requires some effort on the part of the solicitor for the Director to properly identify what is to be forfeited.
While the COCA Act is not without its complications, if proper attention is given to the terms of the COCA Act, it should not be difficult for parties to formulate consent orders that may be made pursuant to s 252 of the COCA Act. I repeat my observations made in Director of Public Prosecutions (ACT) v Can (No 2) about the responsibilities of the Director in this regard.
I consider it appropriate to make each of the orders consented to except the civil forfeiture order. The orders of the Court are:
1. The consent orders lodged for filing on 11 October 2019 are not to be filed and are to be returned to the plaintiff.
2. By consent, a penalty order requiring the defendant to pay to the Territory the sum of $10,000.
3. By consent, an exclusion order in relation to the defendant’s interest in the Crown lease over [redacted] Kaleen, ACT otherwise known as Block [redacted] Section [redacted] on deposited plan 4289, Kaleen ACT.
4. The plaintiff is granted liberty to provide by email to my associate the terms of any amended order sought in substitution for the order sought in paragraph 1 (i) and (ii) in the Application in Proceeding dated 6 November 2019.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 November 2019 |
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