Director of Public Prosecutions v Richardson
[2019] VCC 672
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-02338
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| V | |
| TIMOTHY RICHARDSON | Respondent |
---
JUDGE: | HIS HONOUR JUDGE HIGHAM | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 April 2019 | |
DATE OF RULING: | 12 April 2019 | |
CASE MAY BE CITED AS: | DPP v Richardson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 512 | |
REASONS FOR RULING
---
Subject: CRIMINAL LAW
Catchwords: Application by the Director for forfeiture of property – whether used in connection with the commission of the offence – whether tainted property – whether undue hardship will be suffered – whether partial forfeiture is open
Legislation Cited: Crimes Act 1958; Confiscation Act 1997
Cases Cited:Chalmers v The Queen [2011] VSCA 436; King (2000) 49 NSWLR 727, 735; DPP v Garner (unreported, County Court of Victoria, Judge Kelly, 26 April 1999); DPP (Vic) v Nikolaou [2008] VSC 111; Meskovski v DPP [2018] VSCA 293; Coleman v DPP [2018] VSCA 264
Ruling: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D Mandie | Solicitor for Public Prosecutions |
| For the Respondent | Mr C Juebner | Ruffin Lawyers |
HIS HONOUR:
1 On 14 December 2018, Timothy Richardson, the respondent in this application, was found guilty of nine charges of indecent assault upon a male person contrary to s.68(3) of the Crimes Act 1958 and two charges of buggery contrary to s.68(2) of the Crimes Act 1958. The sexual offences of which the respondent was convicted all occurred at the respondent’s farm in Harkaway.
2 By notice of application filed on 24 January 2019, the Director of Public Prosecutions seeks an order pursuant to s.32 of the Confiscation Act 1997 (“the Act”), for forfeiture of the respondent’s farm at Harkaway (Certificate of Title Volume 11681 Folio 191) (“the Harkaway farm”) of which he is the registered proprietor and sole beneficial owner. The respondent contested the application for forfeiture and the matter was heard before me on 1 and 2 April 2019.
3 The grounds of the Director’s application are:
(i) That the respondent has been found guilty of a qualifying Schedule 1 offence (it is not disputed that indecent assault and buggery, being indictable offences in Victoria, are Schedule 1 offences); and
(ii) That the subject property is tainted property within the meaning of the Act and consequently, pursuant to s.33 of the Act, the property ought to be forfeit to the state.
4 The Director asserts that the Harkaway farm was used in connection with the commission of the offence and it is upon that basis that forfeiture is sought.
5 The Act states, inter alia, the following in s.3:
Property means real or personal property of every description, whether situated within or outside Victoria and whether tangible or intangible, and includes any interest in any such real or personal property.
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.
6 The burden lies with the Director to satisfy the Court on the balance of probabilities that the property is tainted property.
7 The estimated value of the Harkaway farm has been agreed by the parties as $1 million. The respondent is the sole beneficial owner and the property is unencumbered. The forfeiture application is made against the entire property.
8 Pursuant to s.33(1) of the Act, if the Court is satisfied that the property is tainted property in relation to the offence, the Court has a discretion as to whether to order the property be forfeit.
9 By notice of contest of application dated 29 January 2019 and outline of submissions dated 21 March 2019, the respondent submitted in brief that:
(i) The Harkaway farm was not tainted property within the meaning of the Act; and
(ii) If the Court were to find the property to be tainted, the Court should nonetheless exercise its discretion and refuse the Director’s application. The respondent submitted that, having regard to all of the relevant facts, forfeiture would be disproportionate to the objective gravity of the offending and would cause undue hardship to the respondent.
10 I will now consider whether the property was used in connection with a Schedule 1 offence.
11 Section 33(4) of the Act enables the Court, when determining an application under s.32(1), to take into account 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. I have had regard to both the depositions in the trial of the respondent, and to the evidence given by the victims.
12 Further, counsel for the respondent conceded in the course of argument that the Director need only establish sufficient use of the property in connection with one offence.
13 I will consider firstly the offending and secondly the use, if any, to which the property was put in connection with that offending.
14 All of the sexual offending occurred at the Harkaway farm between 1 January 1963 and 30 June 1973. There were six victims of the respondent, whom I will refer to as A, B, C, D, E and F. All of the victims were underage boys at the time of the alleged offending, aged between 11 and 14 years old.
15 The respondent was a teacher at Dandenong High School during the charge period and as such was in a position of trust and authority at the school, and was able to exercise such authority over boys who were in his care and use the position of authority to gain the trust of parents. Each of the victims were at the farm because of the respondent’s use of his position of trust and authority. One victim, B, was not a student at Dandenong High School but was a friend of a pupil of the school. It was in the context of this abuse of authority that the eleven offences took place.
16 On occasions, the offending occurred whilst other boys were in the room. On other occasions, the particular victim was alone at the farm or other boys would stay in the shed.
17 Each of the victims were invited to the respondent’s farm and thus taken by the respondent to his farm away from their parents. In the case of all six victims, parental permission was given either because the respondent had befriended the parents, as in the case of A, C and F, or by reason of the respondent’s status as a teacher and former Scoutmaster.
18 In each case, the sexual activity was preceded by the accused at bedtime ordering or persuading the particular victim to share his bed overnight. The bed was described as a single bed. The bed was in the bedroom area of the bungalow at the Harkaway farm. A short distance away from the bungalow was a shed which contained bunk beds and had other items in it including a telescope.
19 In respect of the victims B, D and E, there was but one instance of offending. In respect of the victims A, C and F, the offending occurred over the course of continuing visits to the farm over a period of many months.
20 The pattern of the offending was that when it was time to go to bed, the respondent would get a particular boy to sleep with him in his single bed by various means of persuasion. The sexual offending then occurred fairly quickly thereafter, initiated by the respondent speaking to his victim about sexual education and the purpose of genitalia, or by other references to his or the victim’s penis getting hard and other explicitly sexualised conversation.
21 The indecent assaults including touching the victim’s penis, on occasion getting the victim to touch the respondent’s penis, masturbating the victim to climax or semi-climax, and ejaculating over the victim. In respect of C and F, the sexual activity proceeded to full penile/anal penetration (buggery, charges 10 and 17). The victim was the passive and the respondent the active participant. It included ejaculation inside the anus of the victim. The buggery charge in relation to C (charge 10) was a course of conduct charge; C estimated that the act occurred up to one hundred times.
22 No force or violence was ever used in the course of the sexual exploitation of the children. The ostensible consent of the victim’s was obtained, variously, by persuasion, cajoling, the victim being frozen by fear, or by a sense of being made to feel special at the attention they were being given by someone with the status of a respected teacher.
23 The offending was planned and premeditated.
24 I turn to the use, if any, to which the property was put in connection with that offending.
25 The phrase ‘used in connection with the commission of the offence’ was considered by the Victorian Court of Appeal, apparently for the first time, in the case of Chalmers.[1] I cite from that judgement the guidance that their Honours have given:
[1]Chalmers v The Queen [2011] VSCA 436.
76 This Court has not previously had occasion to consider the correct interpretation of the phrase ‘used in connection with the commission of the offence’, as used in the definition of ‘tainted property’. Over the past two decades, however, the intermediate appellate courts of several other states have given detailed consideration to the same phrase, or close equivalents of it, in cognate statutory contexts. The High Court, too, has recently expressed relevant views, although the Court did not need to decide this particular question of construction.
77 We have found the analyses by the respective courts illuminating, and they disclose a high degree of unanimity of approach. We would respectfully adopt the following propositions which emerge from those authorities: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 phrase 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.
78 Very often, the decisive issue will be whether the relevant property can be said to have been ‘used’, since ‘use’ is (by definition) employment for a purpose. Once it is concluded that the offender ‘used’ the property at or around the time of the commission of the offence, it will usually follow that there was the requisite connection between the use of the property and the commission of the offence. Put differently, if the offender (or some other person) ‘employed or made use of’ the property for a purpose associated with the offending, then it would follow that the property was ‘used in connection with the commission’ of the offence.
79 The importance of the ‘use’ question is illustrated by cases in which the requisite connection was found to exist between the use of the property and the commission of the offence, as follows:·the use of a yacht to monitor arrangements for the importation of drugs;
·the use of a car for storage, concealment and/or transportation of drugs in connection with drug trafficking;
·the use of a farm or a house to grow cannabis;
·the use of cash to facilitate drug trafficking deals;
·the use of (activities in) a boat or a house as a lure for intended victims of sexual assault; and
·the use of a fenced property to facilitate murder, and to store the body of the victim.
80 Express statutory provision apart, - the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition. That is because, as a matter of ordinary language, this could not be characterised as a ‘use’ of the property. In their joint judgment in White, French CJ and Crennan and Bell JJ said:
On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb ‘use’ is to [m]ake use of [a thing], esp. for a particular end or purpose; utilise, turn to account.
81 It is only when the property, or some feature or attribute of it, has been turned to advantage by the offender, or enlisted to the offender’s purpose, that it will be possible to say that the property has been ‘used’. In King, for example, the offending took place on board a boat but it was held that the boat was no more than the location of the offending. The boat had not been ‘employed’ for any purpose related to the offending. In Garner, by contrast, the Court held that the offender had used a houseboat to provide the intended victims with ‘a pleasurable environment and exciting activities’, such that the boat became ‘an efficient tool of seduction’.
26 Thus, from Chalmers and the authorities referred to therein, I derive the following:
(i) The mere doing of an act in or on property in connection with the commission of an offence would not be sufficient: the property must be more than the mere location of the offending.
(ii) For a finding of use, it is not necessary that the offences would not have been committed without the property.
(iii) The statutory phrase is of broad scope: there is no need for the property to have been adapted or modified for a finding of sufficient use and connection.
(iv) If property had been adapted for the purpose of the commission of the offence, that would be strong evidence of being used in connection with the commission of the offence.
(v) However, the section does not require adaption for purpose as a prerequisite for a finding of used in connection with. The section is broad enough to encompass a passive use of the property.
(vi) The focus of the Court’s enquiry must be upon the connection between the particular use of the property and the commission of the offence.
(vii) There does not need to be a substantial connection between the use of the property and the commission of the offence.
(viii) It is the sufficiency of the connection between the use of the property and the commission of the offence that will inform the finding of whether the property was used in connection (with the commission of the offence) and the exercise of discretion. The more tenuous the connection the less likely any finding of sufficiency.
(ix) Whether there is a sufficient connection between the use of the property in the commission of the offence will be a question of fact and degree. Their Honours stated in Chalmers:
91 There will of course be cases along the spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed in the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.
(x) The property must have been turned to advantage by the offender or enlisted to the offender’s purpose before it will be possible to say that the property has been used. This explains the apparent conflict between the decisions of King and Garner.[2]
[2] King (2000) 49 NSWLR 727, 735; DPP v Garner (unreported, County Court of Victoria, Judge Kelly, 26 April 1999).
27 I turn to my finding as to the use of the property.
28 I am astute to distinguish between the abuse of personal authority and any use of the property.
29 It is doubtful in the extreme whether the parents would have granted permission for boys to stay with you over the weekend if the respondent’s residence had been but a one bedroomed commission flat in Fitzroy or indeed a small worker’s cottage in Richmond.
30 I do not find that the Harkaway farm was specifically purchased with a view to the future commission of such offences, nor do I find the Harkaway farm was adapted in any meaningful way so as to develop or maintain particular features which would have a particular attraction for adolescent boys.
31 The features of the farm were themselves inducement enough to attract boys, as the evidence of A, C and F makes clear. The farm was actively promoted as an attractive and healthy venue where boys could be free to enjoy the bush. It was those attributes that the respondent promoted as part of a deliberate stratagem to persuade parents to, if necessary, grant permission and to lure the child victims to the property. It was of particular use when persuading children from unhappy domestic situations to come and stay.
32 In addition to providing a healthy rural destination that would not arouse parents’ suspicions, the farm provided for the respondent a location of complete privacy which was used systematically over a period of a decade to facilitate his offending.
33 Once at the farm, the victims were removed from any parental or adult oversight and were subject to the respondent’s whims and desires.
34 I find:
(i) The Harkaway farm was not merely the location whether the offending opportunistically took place.
(ii) The Harkaway farm was an important accessory for the predatory grooming of the victims.
(iii) The Harkaway farm was enlisted to the respondent’s purpose.
(iv) The Harkaway farm was used in connection with the commission of the offences on the Indictment.
(v) There is a sufficient connection between that use and the offending.
(vi) The Harkaway farm is tainted property within the meaning of the Act.
35 I turn now to the exercise of discretion.
36 The Director submitted that in the present case, no undue hardship will be suffered by the respondent if the Harkaway farm were to be forfeited.
The Director submitted that:
(i) The respondent will have access to the monies in the NAB bank account and can utilise those monies to secure an alternative principal place of residence; and
(ii) The forfeiture of the respondent’s interest in the property is completely proportionate to the severity of his offending.
37 The respondent submitted in reply that the Director’s application should be refused by the Court in the exercise of its discretion.
38 The respondent points to, inter alia:
(i) The value of the property;
(ii) The level of the respondent’s criminality;
(iii) The legitimate purchase of the property;
(iv) The period of time during which the respondent has owned the property;
(v) That the property is the sole place of residence of the respondent;
(vi) The extent of the connection between the property and the offending;
(vii) The extent of hardship on the respondent should forfeiture be ordered; and
(viii) The effects on innocent third parties.
39 As to innocent third parties, the respondent’s written submissions urged the Court to have regard to the putative interests of two adult foster children of the respondent. They are joint beneficiaries under the respondent’s will made, I note, after his conviction for these offences, and thus they have a contingent interest in the property subject to the will being admitted to probate. They have made no contribution to the property such as to establish a constructive trust in their favour, and have lived there on occasions over the preceding years. Currently, it seems both live at the property. At no stage of these proceedings have they sought to be heard. In the light of that analysis of their interest, I did not understand Mr Juebner, counsel for the respondent, to persist in that submission. I find their interest is not such as to impact upon my discretion.
40 Section 33(5) of the Act sets out the matters to which the Court may have regard in considering whether to make an order for forfeiture 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) Any undue hardship that may reasonably be likely to be caused to any person by the order; and
(c) The claim of any person (other than the offender) to an interest in the property.
41 This section has been considered by high courts in various decisions of the higher courts. In the case of Nikolaou,[3] Kaye J considered the exercise of the s.33 discretion to order forfeiture. His Honour observed:
[3]DPP (Vic) v Nikolaou [2008] VSC 111.
24 The principles, which are relevant to the exercise of the discretion to order forfeiture, under s 33, have been discussed in a number of authorities over the last 20 years. In particular, they have been clearly identified in decisions which include those of the Court of Appeal of New South Wales in R v Lake, the Court of Criminal Appeal of South Australia in Taylor v Attorney-General (South Australia), and the Court of Criminal Appeal of Victoria in Winand v R. Those authorities have been helpfully discussed in the recent decision of Kellam J (as his Honour then was) in Director of Public Prosecutions v Gyurcsik. In summary, the principles which are relevant to the present application are as follows:
1.In an application for forfeiture, where the “jurisdictional facts” have been established by the applicant, the question whether to order forfeiture is a matter for the exercise of a judicial discretion.
2.The starting point is to be found in the clear intention of the statute, namely, to deter those minded to commit offences of the type enumerated in Schedule 1, by exposing such persons to the risk that, not only will they be deprived of their ill-gotten gains upon conviction, but, also, that any property used in connection with the commission of such an offence may be liable to forfeiture.
3.Clearly, it is contemplated that the Act work in a way that inflicts a degree of hardship. Accordingly, in determining whether there has been “hardship” for the purposes of s 33(5)(b), and in particular for the purposes of successfully resisting an application for forfeiture, a respondent must be able to establish hardship other than what might be expected to arise from the ordinary operation of the Act. In Lake v R, Kirby P stated the relevant principle as follows:
“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 relief under s 5(1)(b)(ii). 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 effectiveness in every case.”
4.In determining whether to exercise the discretion in relation to an application for forfeiture, the Court takes into account a variety of circumstances, which predominantly relate to the gravity of the offending, the degree to which the property in question was used for the purposes of the offending (as distinct from being used for legitimate purposes), and the potential effect of forfeiture on the respondent and on innocent third parties. In Winand v R, the Court of Criminal Appeal, consisting of Phillips CJ, Crockett and Southwell JJ, having referred to a number of previous decisions, including Lake and Taylor, stated:
“Those cases, which his Honour accepted as having been correctly decided, established that matters which are to be regarded as relevant to a judicial determination of an application under section 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 degree 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.”
5.Ultimately, the question is whether forfeiture of the property would be unacceptably disproportionate to the nature and gravity of the offence, and the circumstances of the offender, which include the sentence imposed on the offender. Thus, in Winand, the Court of Criminal Appeal posed the final question for the judge, in determining such a case, as whether it would be “fair or cause unacceptable hardship” to order forfeiture. In similar terms, in Taylor v Attorney-General (South Australia), Debelle J (with whom King CJ and Millhouse J agreed) stated that the ultimate test for the judge was whether:
“ ... the order of forfeiture would be severely disproportionate to the circumstance of the offence and the nature and degree of the offending.”
42 I have considered the principles enunciated by his Honour and the cases to which his Honour therein referred.
43 The following facts are not in contention:
(i) The respondent is now aged 82, born on 27 October 1936 and is currently remanded in custody awaiting sentence.
(ii) The respondent has a range of medical conditions including glaucoma, coronary artery disease and arthritis and cataracts.
(iii) The respondent has yet to be sentenced for his offending as the defence requested that sentence be deferred until the ruling on the forfeiture application.
(iv) The property was purchased in 1962 for $1850 without a mortgage. The respondent has owned the property for 57 years.
(v) The respondent has lived at the property from 1962 to date with a 20 year period of absence from 1997 to 2016 when, after the death of his wife, he lived away from the property although maintained his ownership of it.
(vi) The property now has an agreed value of $1,000,000.
(vii) In addition to the property, the respondent has $270,132 in a NAB bank account.
(viii) The offending of which the respondent was convicted occurred between 1963 and 1973, so over a ten year period. The respondent has no prior or subsequent convictions.
(ix) The offending was committed upon children in the respondent’s trust and care and thus represents a gross breach of trust. It represents most serious offending and the moral culpability of the respondent for that offending is high.
44 I note that the majority of the cases cited concern ‘grow houses’, where residential or holiday homes in which the respondent has an interest have been used to grow crops of cannabis; thus the principles identified would not all translate to a case concerning the sexual abuse of children. It would not be possible to place a monetary figure upon the offending as with a cannabis crop. In a grow house case, there is unlikely to be an application as here for compensation pursuant to s.85B of the Sentencing Act 1991. On 3 October 2017, a restraining order was made in respect of the subject property and the NAB bank account pursuant to s.18 of the Act. That restraining order was made for the purpose of satisfying any compensation order that may be made under the Sentencing Act 1991. The NAB bank account is not subject of the forfeiture application. I do not have regard in this ruling to pending compensation applications.
45 Further, in 2014, s.33(5) was amended so as to require the Court to have regard to undue hardship rather than hardship.[4] The case of Meskovski[5] held that the insertion of the qualifying word ‘undue’ before hardship must be read as demonstrating that Parliament intended to change the meaning given to s.38(2), the comparable section relating to civil forfeiture, to establish a requirement of greater stringency than the requirement of ‘hardship’. The purpose of this legislative change was to underscore that the ordinary consequences of deprivation of property are not sufficient for the exercise of the discretion. The Court must also not have regard to the impact of any sentence imposed.[6] Thus the above authorities must now be read in that light.
[4]Confiscation Act 1997 s 33(5)(b).
[5]Meskovski v DPP [2018] VSCA 293.
[6]Confiscation Act 1997 s 33(5A).
46 As stated by Kaye J, the question is ultimately whether an order for forfeiture of the property would involve undue hardship to the respondent which would be unacceptably disproportionate, particularly in comparison to the respondent’s offending and his antecedents, and his use of the property.[7]
[7]DPP (Vic) v Nikolaou [2008] VSC 111 at [37].
47 I have had regard to:
(i) The intent of the legislation.
(ii) The gravity of the offending and its lasting impact upon its victims.
(iii) The historical nature of the offending; the offending finished 45 years ago.
(iv) The respondent’s antecedents, that is to say, his prior good character and the life he has lived since the offending ended.
(v) The property was not bought with tainted funds.
(vi) The property was not bought with the purpose of use in connection with the offences of which the respondent has been found guilty.
(vii) The value of the property.
(viii) The respondent’s advanced age.
(ix) The respondent’s undoubted multiple and complex medical conditions.
(x) The respondent’s manifest inability to gain employment.
(xi) The respondent’s inability to raise funds to purchase a future home.
(xii) The respondent’s reliance, if forfeiture were ordered, upon the funds in the NAB account from which he would have to pay for housing and for aged care.
(xiii) The significant prospect of homelessness should forfeiture be ordered.
48 In light of all of those matters, I cannot be satisfied that it is appropriate to make the order for forfeiture that is sought by the Director.
49 In the course of oral argument, counsel for the Director suggested that the Court may order that part of the respondent’s interest in the property be forfeited to the Minister. The question then arose of whether the Court has the power to make such an order under the Act. The import was clear: it would go directly to the exercise of discretion and proportionality. The Act clearly contemplates an order attaching to part of a property, for example, where other parties such as wife or de facto partner who has an interest under a constructive trust claims a beneficial interest in the subject property, or where part only of the property has been proven to be derived or realised from the commission of the offence.
50 Both parties made submissions on this point, to which I have had careful regard. Both parties concurred that partial forfeiture is not expressly provided for under the Act, and that this issue has not been judicially determined.
51 Counsel for the Director submitted that an order for partial forfeiture of an interest in the property is available. This is contemplated by the wording of s.33(1), which provides that the Court may order forfeiture of “such of the property as is specified in the order”. An order for partial forfeiture would ameliorate undue hardship caused by forfeiture of the respondent’s whole interest in the property, if I were to find that such hardship would occur. Partial forfeiture, the Director submitted, may also be available to achieve proportionality where forfeiture of the whole interest would be disproportionate to the gravity of the offending.
52 Counsel for the respondent submitted that s.33(1) of the Act does not confer a power to order the forfeiture of part of an interest. Where there are multiple legal or equitable interests in tainted property, the Court can order for the forfeiture of some or all of those interests. The Court cannot, however, divide or carve up a single indivisible legal or beneficial interest.[8] The respondent submitted that this ‘all or nothing’ approach is what was contemplated by s.33(1), having regard to the wording of the provision in its intrinsic context and the purposes of the Act.[9] In particular, the respondent contended, the definition of property in the Act to include ‘any interest in property’, read together with the requirement in s.33(2) that the order must specify the interests in property to which the order applies, evinces that the Court may forfeit some interests in property but cannot forfeit part of one interest.[10]
[8] Respondent’s Outline of Submissions – Statutory Construction Principles, 2 April 2019, p. 1.
[9] Respondent’s Outline of Submissions – Statutory Construction Principles, 2 April 2019, p. 2.
[10]Respondent’s Outline of Submissions – Statutory Construction Principles, 2 April 2019, p. 2.
53 After carefully considering the parties’ submissions, I am not persuaded that the Court is empowered to make an order for partial forfeiture in the manner for which the Director contended. Moreover, I am persuaded by the respondent’s contentions that the Act intends to provide for situations where there are multiple legal or equitable interests in a property. In such circumstances, the Court is empowered to order the forfeiture of one or more interests in the property, and is required under s.33(2) to specify which interests in the property are to be forfeited to the Minister.
54 Where there is no express provision for forfeiture of part of an interest in property, the issue becomes a matter of statutory construction, having regard to the wording, objects and nature of the Act. I am cognisant that these provisions of the Act, in providing for forfeiture of property without compensation, are penal and curtail individual property rights. Such provisions are to be construed strictly in favour of the property owner; any intention to derogate from property rights requires clear expression in the statute.[11] In this case, to construe the Act as allowing the Court to forfeit part of an interest in property, in the absence of clear words to that effect, would amount to giving more scope to make forfeiture orders than the wording of the Act permits. Doing so would serve as a mechanism for circumventing the requirements of proportionality and undue hardship elsewhere in the Act. It would also invite speculation on the part of the Court as to how much of an individual interest may be forfeited.
[11] Coleman v DPP [2018] VSCA 264, [176]-[177] per Weinberg JA, extracting Jeffrey v Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514.
55 Indeed, in the cases to which counsel referred where the Court declined or overturned orders due to disproportionality or undue hardship, none of those cases ordered partial forfeiture of an interest in answer to disproportionality or undue hardship. I regard this as further indication that I do not have the power to do so in this instance.
56 Accordingly, the Director’s application for forfeiture is dismissed.
- - -
0
6
0