Director of Public Prosecutions v Hodge

[2024] TASSC 33

[2024] TASSC 33

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Director of Public Prosecutions v Hodge [2024] TASSC 33
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS
v
HODGE, Shane Michael
FILE NO:	795/2023
DELIVERED ON:	3 July 2024
DELIVERED AT:	Hobart
HEARING DATE:	26 June 2024
JUDGMENT OF:	Pearce J
CATCHWORDS:

Criminal Law – Procedure – Confiscation of proceeds of crime and related matters – Forfeiture or confiscation

– Discretion to make order – Generally.

Crime (Confiscation of Profits) Act 1993, s 16.

Aust Dig Criminal Law [3223]

REPRESENTATION:

Counsel:

Applicant:	C Darvell
Respondent:	F McCracken

Solicitors:

Appellant:	Director of Public Prosecutions
Respondent:	Grant Tucker and Associates

Judgment Number:	[2024] TASSC 33
Number of paragraphs:	17

Serial No 33/2024 File No 795/2023

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE MICHAEL HODGE

REASONS FOR JUDGMENT PEARCE J
3 JULY 2024

1             On 9 May 2024 the respondent, Shane Hodge, was convicted on his plea of guilty to trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s 12. He was sentenced to a term of imprisonment of 15 months, wholly suspended for two years. The controlled substance, cannabis, when found, was hidden in a caravan owned by the respondent. The applicant applies for an order under the Crime (Confiscation of Profits) Act 1993 (the Act) that the caravan be forfeited to the State.

2 Section 16(1) of the Act provides that an application for forfeiture in relation to particular property may be made by an authorised officer when a person is convicted of a "serious offence". The application was made orally by a legal practitioner on behalf of the Director of Public Prosecutions, who is an authorised officer, at the conclusion of the sentencing hearing. For convenience I will treat and refer to the DPP as the applicant. A serious offence is an offence against a law of Tasmania which may be dealt with as an indictable offence: s 3. Trafficking in a controlled substance is such an offence, and is punishable by imprisonment for a term not exceeding 21 years: Misuse of Drugs Act, ss 5 and 12. The court may make the forfeiture order if satisfied that the property is "tainted property" in relation to the offence. Property is tainted property in relation to an offence if it is an instrument of crime, or proceeds of the offence or property that constitutes a commercial benefit in relation to the offence: s 3.

3             It was agreed by the parties that the prosecution facts asserted to the court during the sentencing hearing on 26 April 2024 were agreed facts for the purpose of the application. In addition, the respondent gave sworn evidence and was cross examined. In the course of his evidence the respondent attested to the truth of an affidavit he swore on 11 June 2024. Questions of fact on the application are to be determined on the balance of probabilities: s 71.

4            The evidence established that the circumstances of the trafficking were as follows. On 18 August 2023 the police went to the respondent's home in Falmouth for an unrelated purpose. While they were there the respondent volunteered to them that he was storing cannabis in a caravan he kept on a friend's property not far away. He took the police to that property. The caravan was there with a cover over it. Inside it the police found a total of just under 14 kilograms of cannabis in 10 carefully sealed packages of uniform size, shape and appearance each containing, give or take a few grams, 1.4 kilograms. The packages had been concealed by the respondent in a compartment below a drawer under a bunk. The compartment was covered with a plywood panel secured with metal brackets, lined with polystyrene and sealed with a combination of silicone and wooden beading.

5             The cannabis found in the respondent's possession, if it had been sold, could have returned between about $130,000 and $290,000. It had come into his possession in early 2023 in an unusual way. While surfing in a very remote area on the east coast he noticed human activity on shore which attracted his attention. He returned on a later occasion to investigate and found compounds of cannabis. He decided to watch the compounds as the cannabis grew and, when it was ready to be harvested in about April 2023, he stole it from various locations within the compounds at times and in quantities so that he hoped the owners would not notice. He then dried the cannabis he stole in the bush under polycarbonate translucent roofing sheets. When it was ready he processed, packaged and concealed it. The respondent was asked about why he acted in this way and what he intended to do with the cannabis. I am satisfied that his initial motivation was principally financial, and that his unformed plan was to sell the cannabis for profit. In his evidence, the respondent suggested that he did not think that the quantity of cannabis

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he had was large and no real idea of what it might have been worth, and that he also thought about using the cannabis to relieve his back pain. However I find that the meticulous way in which he must have weighed, packaged and stored the cannabis is consistent only with an intention to preserve what he must have understood to be a substantial quantity of cannabis for possible future sale. He admitted as much to the police. At the time he was under financial strain resulting from unemployment and marital breakdown, and owed money to his mother and daughter, on his mortgage and on his credit card.

6             Once the cannabis was processed and packaged the respondent hid it in the caravan. He already owned the caravan, having purchased it in 2017 for just over $63,000 when he was still with his wife. Together they used it for holidays. According to the respondent, after he and his wife separated in 2018 or 2019 the caravan was still used for family holidays, but not so often. The respondent said that it was last used for accommodation a few months before the cannabis was put in it.

7             The cannabis was placed into the caravan not long before the caravan was taken to the location at which it was seen by the police. The respondent accepted that he put the cannabis into the caravan because he thought it was a good place to hide it. He sealed the cavity in which it was hidden to avoid the risk that the cannabis might be smelt by someone who went inside for some innocent reason, although the location at which the caravan was stored, and the fact that it was under a cover, made that scenario unlikely. The respondent's evidence was that the cover was to "keep the caravan out of the weather", but I find also that it formed part of the concealment of the cannabis. The caravan was not used for its normal purpose between the time the cannabis was placed in it, in March or April 2023, and its discovery in August.

8             However, once the respondent had gone to all of that trouble, he came to the appreciation that he had no real idea about how to realise its value or how to go about selling it. As a result he did nothing and his intention to sell it evaporated. When the police arrived at his home he volunteered the existence and location of the cannabis in circumstances that make it highly improbable that they would otherwise have known anything about it or found it. It is accepted by the applicant that the respondent sold none of the cannabis and that, by the time the police attended in August 2023, he no longer had any intention to sell any of it. I am satisfied that he had already decided to destroy it. He said that he asked the police officers he spoke to for advice about how to go about it. In that and some other respects his evidence about why he told the police about the cannabis at all is, if true, difficult to understand. Nevertheless, I am satisfied that he gave a generally truthful account but one which demonstrates a completely naïve response to the situation he had placed himself in.

9             The respondent had no relevant prior convictions. He is a qualified renderer but is not employed. He gave evidence that he remains in contact with builders but there is no work. He also suggested that his ability to work is affected by a back injury. In any event, his only present income is social security benefits. He and his former wife own the home in Falmouth in which he is presently living. It was purchased in 2013. They have reached an agreement as to the distribution of assets following their separation. He has already paid her $190,000. On the sale of their property she will be paid a further $300,000. However the house has been on the market for a year and there has, according to the respondent, been little interest from potential purchasers. The house is subject to a mortgage which is currently $118,000. He owes his mother $30,000 and owes his daughter $7,000. There is more than $15,000 owing on his credit card. His only other asset of value is a car worth about $10,000. It is agreed that the caravan remains of the same value as it was when it was purchased, that is, $63,000. It was his intention to sell, and not keep, the caravan if it is returned to him.

10 The respondent concedes that the caravan is tainted property in relation to the trafficking. With respect, the concession is properly made. The evidence establishes that the caravan was not proceeds of the offence, or a commercial benefit from the offence. However, it was an instrument of crime because it was, in accordance with the very broad definition of that term in s 3 of the Act, property that was used in the commission of, in connection with, or to facilitate the commission of, a serious offence. The

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respondent was guilty of trafficking because he concealed and possessed a controlled drug with the intention of selling it: Misuse of Drugs Act, s 3. Here, the caravan was an instrument of crime in accordance with that definition because it was the means by which the respondent possessed and concealed the cannabis with the intention, at least for some of the time, to sell it.

11           The making of a forfeiture order is discretionary. The power in s 17 to make the order is expressed in the form of a discretion, that a court "may" make the order. Section 17(2) requires that, when exercising the discretion, the Court must consider the two particular matters specified in subss (a) and (b): the use that is ordinarily made, or was intended to be made, of the property, and any hardship that is likely to be caused to any person by making the order. In considering any hardship that is likely to be caused to the respondent by the making of a forfeiture order, the Court is not to take into account the sentence imposed on him for the offence: s 17(3). Beyond the two matters the Court is required to take into account, the Court may have regard to a range of relevant matters. Some such matters were listed by the Victorian Court of Criminal Appeal: R v Winand (1994) 73 A Crim R 497 at 500-501:

"[M]atters which are to be regarded as relevant to a judicial determination of an application under s 5 of the Act include the following: the value of the subject property, the nature and gravity of the offence, the use made of the property, the degree of the offender's involvement, the offender's antecedents, the value of any other property confiscated and the penalty imposed, the nature of the offender's interest in the property, the value of the drugs involved or the size of the crop, whether the property was acquired with the proceeds of the sale of drugs, the utility of the property to the offender, the length of ownership of the property, the extent to which the property was connected with the commission of the offence, the fact that forfeiture is intended as a deterrent, the interest of innocent parties in the property and the extent (if any) to which the retention of the property might bear on the offender's rehabilitation.

...

It is clear that what also must be borne in mind is the question of proportionality, that is to say, would forfeiture of the property be sufficiently proportionate to the nature and gravity of the offence having regard also to the sentence imposed on the offender. These latter considerations are, we think, critical in the present case. The final question which the judge must ask is, having regard to the foregoing matters which are relevant on the particular facts of the case, would it be fair or cause unacceptable hardship to order forfeiture?"

12           The comments in Winand were drawn from Taylor v Attorney-General (SA) (1991) 55 SASR 462; 53 A Crim R 166 and have been considered and applied in a number of subsequent decisions in Victoria and elsewhere, including in Bowman v The Queen (1995) 14 WAR 466. In Bowman, Parker J, with whom Murray and Owen JJ agreed, adopted and added to the list of relevant factors stated in Winand. His Honour also referred to passages from the reasons of Debelle J in Taylor at 475 and Malcolm CJ in R v Rintel (1991) 3 WAR 527 at 532 and concluded that the principle which governed the exercise of the discretion was one of proportionality. He stated at 474:

"While the precise formulations quoted above vary, it does not appear that this is intended to reflect any difference of approach to the underlying principle. It is clear that the scheme of the Act is to provide an additional and strong deterrent, in particular one which affects monetary profits from crime, but it would not be appropriate to order forfeiture where the effect of forfeiture would be disproportionate to the gravity of the offence".

13           In the passage quoted from Winand above, one factor listed as relevant is the "penalty imposed". If that is a reference to the sentence imposed for the offence, then, in this State, it is a factor which, by operation of s 17(3), the Court must not take into account. In addition, the Court in Winand referred to "unacceptable hardship". Some care is required because the legislation in this State refers only to "hardship", not "unacceptable hardship", although in the second reading speech made on the introduction of the Bill in 1993 the Minister stated that the purpose of the provision was to ensure that "no unnecessary hardships are caused to the offender." As to hardship, the comments of Kirby P, as a

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member of the New South Wales Court of Criminal Appeal, in Lake v The Queen (1989) 44 A Crim R
63 at 66-67 are also to be considered:

"In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore, that can give rise to the relief … The provision for relief on that ground must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant. Otherwise the Act would have, within it, the seeds of its own [ineffectiveness] in every case".

14           There are some differences in the statutory schemes which have been considered in these cases, but, in my view and subject to the qualifications I have referred to, the matters listed in Winand, and the principles stated in Bowman and Lake are relevant to, and ought to be applied in, the exercise of the discretion in this State.

15           There are some factors which support the making of a forfeiture order in this case. As has been explained, one of the purposes of the legislation is to, by the risk of the forfeiture of property which is an instrument of crime over and above an already proportionate sentence, provide a strong deterrent to offenders and potential offenders. The quantity and value of the cannabis which the respondent possessed was considerable. The respondent did not adduce any evidence about the value of any equity he may have in his home which will be realised once it is sold and the mortgage is discharged and his former wife's interest paid out. I am left to draw whatever inference may be available from his overall financial position about whether he may suffer any hardship in his living arrangements if he were deprived of the value of the caravan.

16           However I have concluded that a forfeiture order should not be made. The caravan is not proceeds of the offence or a commercial benefit in relation to the offence. It was owned by the respondent and used for its normal purpose for some years before the offence was committed. That does not mean that it is not tainted property. However had it been the case that the caravan was a benefit which resulted from the crime the case for forfeiture of the property would, in this case at least, have been more compelling. This is not a case in which the property sought to be forfeited was used to produce the cannabis. Nor was the caravan used to prepare the cannabis for sale or as a premises from which it was sold. Its connection to the offence was only that it was used, for about three or four months, as a place to hide the cannabis pursuant to an unformed and vague plan to sell the cannabis at some future time, which the respondent did not pursue and ultimately decided against. No sales were made or attempted before the respondent volunteered the existence and location of the cannabis to the police. The respondent received no benefit at all, financial or otherwise, from the crime. Despite the lack of some detail, I am satisfied that his financial position is poor and that loss of the caravan would compound his hardship. In all of the circumstances I have concluded that forfeiture of an asset worth more than $60,000 is a disproportionate response to the nature and gravity of his offence.

17   For those reasons, the application is refused.