Director of Public Prosecutions v Wesam Abdullah
[2002] NSWSC 938
•4 October 2002
CITATION: Director of Public Prosecutions v Wesam Abdullah [2002] NSWSC 938 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 11865/01 HEARING DATE(S): 3 October 2002 JUDGMENT DATE: 4 October 2002 PARTIES :
Director of Public Prosecutions - Plaintiff
Wesam Abdullah - Defendant
NRMA Insurance Ltd - Interested PartyJUDGMENT OF: Dunford J
COUNSEL : G Rees (solicitor) - Plaintiff
J Donnellan (solicitor) - Defendant
T Powell (solicitor) - Interested PartySOLICITORS: Solicitor for Public Prosecutions - Plaintiff
LM Williams & Associates - Defendant
Abbot Tout - Interested PartyCATCHWORDS: CRIMINAL LAW - proceeds of crime - confiscation - forfeiture - "tainted property" - motor vehicle partly comprising parts from a stolen vehicle - hardship - WORDS & PHRASES - tainted property - motor vehicle partly comprising parts from a stolen vehicle. LEGISLATION CITED: Confiscation of Proceeds of Crime Act 1989, ss 13, 18(1)
Crimes Act 1900, s 188CASES CITED: R v Hadad (1989) 16 NSWLR 476
Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727
Director of Public Prosecutions v Garner (1999 - County Court of Victoria - unreported)
R v Bolger (1989) 16 NSWLR 115DECISION: Forfeiture order made.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONDUNFORD J
Friday, 4 OCTOBER 2002
JUDGMENT011865/01 Director of Public Prosecutions v Wesam Abdullah
1 HIS HONOUR: This is an application for an order pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (“the Act”) that a Mazda MX5 motor vehicle registered number AHX 072, which consisted of parts of a number of vehicles, be forfeited to the State.
2 The defendant was on 19 December 2000 in the Local Court at Bankstown convicted of attempting to dispose of a front bumper, bonnet panel, front passenger seat, passenger door, convertible roof and a Mazda warranty book, the property of NRMA Insurance Limited, which had before then been stolen and which he at the time when he attempted to dispose of the said property knew the same to have been stolen, contrary to s 188 of the Crimes Act 1900.
3 On 13 September 1999 a 1990 Mazda MX coupe registration RWI 766 was stolen from Brook Street, Coogee. The vehicle was insured with NRMA Insurance Limited which paid out to the owner $22,915 for the loss of the vehicle together with $350 for personal effects, less the applicable excess of $375. It appears that that vehicle was acquired by the defendant shortly thereafter.
4 On 10 September 1999 the defendant purchased a damaged 1995 Mazda MX5 from Mazford Parts Plus of Revesby for $8,500. The rear end of this vehicle was damaged, but the front end was essentially intact. The defendant also purchased from Darren Corrigan, the manager of Just MX5 of Kirrawee, the rear section of a 1990 Mazda MX5 for $250.
5 With the front end of the 1995 Mazda, the rear end of the 1990 Mazda purchased from Mr Corrigan and parts taken from the stolen vehicle, the defendant then made up a composite vehicle in what has been described as a “cut and shut” operation. In effect, the rear end of one vehicle was welded to the front end of the other vehicle and the missing parts were added from the stolen vehicle. The composite vehicle was then registered with the RTA and given the registration number AHX 072 on 12 October 1999.
6 The defendant subsequently advertised the composite vehicle in the Trading Post specifying a price of $27,300 or near offer for the vehicle.
7 It appears that the moneys spent on the vehicle, apart from the $8,500 paid for the damaged 1995 vehicle totalled $8,800 making a total spent on the composite vehicle, including labour, of $17,300. It is agreed that the present value of this vehicle is $13,250 and the value of the parts from the stolen vehicle which have been included in the composite vehicle amount to $2,817.32, and this latter amount is claimed by NRMA Insurance Limited.
8 The dispute between the parties has arisen because the only parts of the composite vehicle identified as coming from the stolen vehicle are those in respect of which the defendant has been convicted, and he has not been convicted of attempting to dispose of a motor vehicle the whole of which was stolen.
9 The Court’s power under s 13 of the Act is to order forfeiture of “tainted property” which includes “property that was used in or in connection with the commission of a serious offence”. It is not disputed that the offence with which the defendant was convicted is a serious offence, being an offence that may be prosecuted on indictment, but it has been submitted on behalf of the defendant that the only items which are “tainted property” are those parts specified in the conviction and not the whole motor vehicle.
10 It was held in R v Hadad (1989) 16 NSWLR 476 that a wide scope should be given to the phrase “tainted property” and specific connection is not required between the commission of a crime and the alleged tainted property. On the other hand, in Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727, whilst not departing from what had been said in Hadad, O’Keefe J held a boat where a sexual assault had taken place was not tainted property as it was merely the place where the offence took place and it played no role in the commission of the offence, contrary to the situation which had prevailed in the Victorian case of Director of Public Prosecutions v Garner (1999 - County Court of Victoria – unreported) where the equipment on the boat had been used as “an efficient tool of seduction”. His Honour held that for property to be tainted property there must be some activity connected with the relevant crime which must have involved utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question.
11 In the present case the defendant did not attempt to dispose of the stolen parts of the vehicle by themselves, but attempted to dispose of them as part of the whole composite vehicle, including the 1995 front end and the 1990 rear end, or to adapt the words of O’Keefe J, the attempted disposal of the stolen parts involved the utilisation of the composite vehicle with the aim or purpose of committing or furthering the commission of the crime in question. The attempted disposal of the whole vehicle was integral and essential to the disposal of the stolen parts. They were only attempted to be disposed of as part of the whole composite vehicle, and accordingly the whole composite vehicle was used in the commission or in connection with the commission of the serious offence. Accordingly, I am satisfied that the whole of the composite vehicle is “tainted property”, and not only the stolen parts.
12 Section 18 requires that before making a forfeiture order the Court must take into account the use that is ordinarily, or had been intended to be, made of the property, and any hardship that may reasonably be likely to arise whether on the part of the person convicted or any other person following the making of the order: s 18(1)(b). Here there can be no doubt the use that had been made and was intended to be made of the property was to complete the composite vehicle so that the composite vehicle, which had cost a total of $17,300 could be sold for $27,300 or near offer, a substantial profit.
13 It has been submitted on behalf of the defendant that I should not order forfeiture because of the hardship he is likely to suffer if a forfeiture order is made, and the thrust of that submission is that it would be disproportionate for the defendant to be deprived of property worth approximately $13,250, its agreed present value, when the value of the only items in respect of which he has been convicted total $2,817.32.
14 Reference was made to R v Bolger (1989) 16 NSWLR 115 where hardship based on the disproportionate effect of the forfeiture order is discussed. It was submitted that the defendant would suffer a substantial loss and the Crown would be disproportionately enriched as he has not been convicted of stealing or receiving the whole of the motor vehicle sought to be forfeited.
15 On the other hand, the object of the legislation is to prevent offenders obtaining any benefit from the commission of their offences, or put another way, to deny them their ill-gotten gains; the philosophy being that to deny defendants the benefits of their offences will act as a disincentive to the commission of such offences. It has been said many times that thieves would not prosper without receivers and the defendant is essentially a receiver, either directly from the thief, or through an intermediary.
16 No doubt there will be cases such as those referred to in R v Bolger where the disproportion between the extent of the property used in the commission of the offence and the value of the tainted property will amount to a hardship. However, in the circumstances of this case to allow the defendant to keep the composite vehicle would enable the defendant to make a profit out of his offence and would, in my opinion, be contrary to the objects of, and the philosophy behind, the Act. I will therefore make the forfeiture order.
17 I make orders in accordance with the Short Minutes of Order signed by me and placed with the papers. I order the property may be disposed off after twenty-eight days if no appeal is instituted within the meantime.
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