Director of Public Prosecutions v Dosser

[2022] VCC 160

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00752

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES MAXWELL TYLER DOSSER

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2022
DATE OF RULING:	21 February 2022
CASE MAY BE CITED AS:	DPP v Dosser
MEDIUM NEUTRAL CITATION:	[2022] VCC 160

RULING
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Subject:Proceeds of Crime

Catchwords:              Confiscation of “tainted property”; Discretion

Legislation Cited:      Confiscation Act 1997 sections 3, 32 & 33

Cases Cited:Chalmers v R [2011] VSCA 436; DPP v Moran [2012] VSCA 154; Cini v The Commissioner of the Australian Federal Police [2016] VSCA 227; DPP (Vic) v Nikolaoyu [2008] VSC 111; DPP v Richardson [2019] VCC 512

Ruling:  Application for forfeiture granted

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Singh	Office of Public Prosecutions
For the Defendant	Mr C. Farrington	Paul Vale Criminal Law

HIS HONOUR:

1This is an application by the Director of Public Prosecutions for Victoria (“the Director”) for a forfeiture order made in accordance with the provisions of s 33(1) of the Confiscation Act 1997 (Vic) (“the Act”) relating to a white 1996 unregistered Toyota Landcruiser VIN No JT731PJ7508535007 (“the Landcruiser”).

2The application was opposed.  The hearing proceeded on 14 February 2022.  The Director was represented by Ms Singh of counsel, who relied upon an affidavit affirmed by her instructing solicitor, Mark Stuart Vella, on 30 November 2021.  Mr Vella’s affidavit was tendered in evidence as Exhibit A.

3Mr Dosser was represented at the hearing by Mr Farrington of counsel.  There was no evidence tendered on his behalf at the hearing.

4The factual background to this application can be shortly summarised:

·        Mr Dosser is presently 23 years of age (DOB February 1999).

·        Between 11 December 2016 and 15 November 2018 he committed some 19 offences in the Yarra Valley area, including the theft of a white 1992 Landcruiser utility (Charge 17) and the theft of a white 1994 Toyota Landcruiser Troop Carrier (Charge 19).

·        At the time of this offending he resided at a property in Gruyere with his father.

·        He was the owner of the Landcruiser.

·        When Mr Dosser was arrested on 30 November 2018 investigators executed a search warrant at his home address and seized the Landcruiser that is the subject of this application.

·        Mr Dosser made admissions to police in relation to removing parts from the two stolen Landcruisers and fitting them to his vehicle.

·        On 26 November 2020 Mr Dosser pleaded guilty to a number of offences, including the two relevant theft offences (Charges 17 and 19) on Indictment Number K12693769 and was convicted of those offences.

·        The wheels and multiple other parts and panels had been removed from both of the stolen vehicles when they were recovered by investigators.

·        Mr Dosser admitted that the following parts from the stolen vehicles had been fitted to the Landcruiser which is the subject of this application.

(a)   snorkel;

(b)  little indicator lens;

(c)  fuses;

(d)  a couple of D-shackles;

(e)  tyres and rims; and

(f)  spare tyre on the rear of the vehicle.

5Mr Dosser’s conviction of the Schedule 1 offences relating to the theft of each of the stolen vehicles engages s 32 of the Act.:

Section 32(1) 

“If an accused is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of the tainted property.”

6The forfeiture application is to be determined in the manner specified in s 33 of the Act:

33    Determination of application for forfeiture order

(1)   On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the Minister.

(2)   A forfeiture order must specify the interests in property to which it applies.

(3)   If an application is made under section 32(1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may make a forfeiture order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.

(4)   On an application under section 32(1) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit, including evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.

(5)   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)subject to subsection (5A), any undue hardship that may reasonably be likely to be caused to any person by the order; and

(c)the claim of any person to an interest in the property having regard to the matters specified in section 50(1).

(5A) For the purposes of subsection (5)(b), when having regard to any hardship caused to the person convicted of the offence in relation to which the forfeiture order is sought, the court must not take into account the impact on that person of the sentence given for that offence.

(6)  A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 32(1) until the application under the Sentencing Act 1991 has been determined.

(7)  The making of a forfeiture order does not prevent the making of a pecuniary penalty order.

7Ms Singh on behalf of the Director submitted that the Landcruiser was tainted property as defined in s 3 of the Act.

“’tainted property’ means-

…

(b)  in any other case, property that, in relation to an offence—

(i)    was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or

(ii)was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or

(iii)was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or

(iv)is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or …”

8Ms Singh submitted that the Landcruiser was used in or in connection with the offence of the theft relating to both Charge 17 and Charge 19.  She referred to authorities in Chalmers v R[1] and Director of Public Prosecutions v Moran[2] from which the following principles can be set out:

“1.   The word ‘used’ should be given its ordinary meaning of ‘employed, or made use of, for a particular end or purpose.’

2.  The statutory phase is of wide scope.  The inclusion of the words ‘in connection with’ was plainly intended to extend the scope of the definition of ‘tainted property’ beyond circumstances where the property could be said to have been ‘used in the commission of’ the offence.

3.  Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree.  It is not necessary for it to be established that there was a ‘substantial’ connection, or that the crime could not have been committed without using the property.

4.  The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court’s discretion whether or not to order forfeiture of the property.”[3]

[1][2011] VSCA 436

[2][2012] VSCA 154

[3]Chalmers v R [2011] VSCA 436 at [77]

9Ms Singh also referred to a similar approach being taken in relation to the interpretation of federal legislation in Cini v The Commissioner of the Australian Federal Police.[4]  In that case the court also rejected the notion that there must be a “substantial connection” between the property sought to be seized and the relevant offence.

[4][2016] VSCA 227

10Ms Singh’s submission proceeded on the basis that Mr Dosser had taken parts  from the two stolen vehicles, and in particular roadworthy tyres from the Toyota Troop Carrier (Charge 19), to enable him to obtain a certificate of roadworthiness for his Landcruiser.  The evidence disclosing the previously fitted tyres found discarded in his shed and the legally roadworthy tyres taken from the Toyota Troop Carrier and fitted to his Landcruiser, were supportive of such a finding as to Mr Dosser’s motivation for the commission of the relevant offence.

11Ms Singh conceded that the legislation provided, in addition to the matters set out in s 33(5) of the Act, a residual discretion as to whether or not a forfeiture order should be made.[5] She referred to the objects of the Act, noting in s 3A the Act states:

“The main objects of this Act are –

(a)   to deprive persons of the proceeds of certain offences and of tainted property; and

(b)   to deter persons from engaging in criminal activity; and

(c)   to disrupt criminal activity by preventing the use of tainted property in further criminal activity; and

(d)   to undermine the profitability of serious criminal activity.”

[5]DPP v Cini [2013] VSCA 103 at [51] to [52]

12Ms Singh referred to decisions of DPP (Vic) v Nikolaou[6] and DPP v Richardson[7] where the courts had considered the object of deterrence in the exercise of discretion to order forfeiture.  In this regard I accept the proposition that forfeiture of property may be avoided in circumstances where such an order would be unacceptably disproportionate to the nature and gravity of the offence and the circumstances of the offender.

[6][2008] VSC 111

[7][2019] VCC 512

13The submissions of Mr Farrington in opposing the forfeiture order were directed predominantly to the factual circumstances of the benefit flowing to Mr Dosser from the criminal activities.  Quite properly he pointed out that apart from some very minor items such as the fuses and D-shackles, the only real benefit derived from the two theft offences was the fitting of a set of roadworthy wheels and tyres to his Landcruiser.  Mr Farrington submitted that it was a simple matter for these items to be removed rather than the court ordering forfeiture of Mr Dosser’s Landcruiser.  There was no evidence relied upon by Mr Dosser to demonstrate any particular adverse consequence or other circumstance relevant to the exercise of the court’s discretion.

14In considering the matters put before me I conclude that the forfeiture application should be granted.  The reasons can be shortly stated.

15First, there were clear admissions made by Mr Dosser to investigators setting out his intention to take parts from each of the stolen vehicles for use on his Landcruiser.  This intention was supported by the discovery of certain, albeit minor items, fitted to the vehicle and the wheels and tyres from the Troop Carrier being the subject of Charge 19.

16Secondly, I am satisfied that the actual use of stolen parts on Mr Dosser’s Landcruiser clearly establishes that the Landcruiser is tainted property in that it was found with stolen parts fitted to it.

17Thirdly, the exercise of a discretion to grant the forfeiture order is consistent with the main objects of the Act, including the deprivation of persons of both the proceeds of certain offences and of tainted property, and the deterrence of persons from engaging in criminal activity.

18Finally there is no evidence put on behalf of Mr Dosser as to any special or unusual circumstances which would enable a finding that the forfeiture of the Landcruiser would cause undue hardship either to him or to any other person.  Further, the evidence provided on behalf of the Director satisfies me that the Landcruiser sought to be forfeited is presently unregistered and is of a modest value in the order of $10,000.  It is not akin to property of a type referred to in the authorities such as a house being used as a primary residence.  Whilst the Landcruiser remains unregistered it would be disingenuous for the court to infer that it can be used lawfully perhaps as a means of primary transport by Mr Dosser or some other person.

19For those reasons I conclude that the application sought by the Director should be granted.

20I reserve leave to the parties to apply in relation to the formal orders sought or any other outstanding matters.

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