Director of Public Prosecutions (Vic) v Cini
[2013] VSCA 103
•9 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0107
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA |
| Appellant |
| V |
| GEORGE CINI |
| Respondent |
---
| JUDGES | WEINBERG and TATE JJA and VICKERY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 March 2013 |
| DATE OF JUDGMENT | 9 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 103 |
| JUDGMENT APPEALED FROM | Director of Public Prosecutions (Vic) v Cini (Unreported, County Court of Victoria, Judge Gucciardo, 23 May 2012) |
---
CONFISCATION — Appeal against dismissal of forfeiture application under s 32 of the Confiscation Act 1997 (‘the Act’) — Respondent convicted of trafficking in a drug of dependence simpliciter — Director of Public Prosecutions sought forfeiture of property at which respondent had grown cannabis — Respondent grew cannabis in underground bunker on the property — Property obtained lawfully and had been respondent’s home for 20 years — Respondent not dealt with for any offence attracting operation of ‘automatic forfeiture’ provisions of the Act — Director raised concern that underground bunker might be reactivated in the future for purpose of cultivating cannabis — Judge below adjourned forfeiture application on undertaking from respondent that the underground bunker would be filled in — Affidavit evidence subsequently received to effect that bunker had been filled in — Application subsequently dismissed — Whether judge below acted for improper purpose in failing to order forfeiture — Whether irrelevant considerations taken into account — Judge below appropriately addressed Director’s concerns regarding use of the property — Relevance of Director’s delay in bringing application — No error in exercise of discretion — Appeal dismissed — R v Winand (1994) 73 A Crim R 497 applied.
STATUTORY INTERPRETATION — Confiscation Act 1997 s 3A — Whether ‘objects’ clause inserted into the Act in 2010 limits range of matters court may take into account in exercise of discretion — Whether statutory list of matters to which court may have regard in s 33(5) of the Act to be interpreted in light of decided cases — Introduction of s 3A not intended to preclude regard to relevant case law.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Gyorffy SC Mr S K McGregor | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P J Morrissey SC | Koutsantoni & Associates |
WEINBERG JA:
The respondent, George Cini, pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, three counts of possession of a drug of dependence, one count of theft of electricity, and a summary charge of possession of the proceeds of crime in the amount of $14,180. The trafficking count related to cannabis.
Factual background
The respondent was the owner and occupier of a house in Harley Street, Sunshine North.
On 7 December 2009, police executed a search warrant on the premises. They located, beneath the garage, what the judge below described as an ‘underground bunker’. It consisted of two rooms, marked respectively ‘1’ and ‘2’. In the corridor, at the foot of the stairs in front of those rooms, were some 45[1] cannabis seedlings, 26 containers of fertiliser and an electrical power switchboard. There were also various items of hydroponic equipment.
[1]I note that the ruling dated 28 November 2011 (‘Forfeiture Ruling’) described there being ‘49’ seedlings: T4:15. Cf DPP v George Cini (Unreported, 18 January 2011, Judge Gucciardo) [3] (‘Sentencing Remarks’)
Within the two rooms, police located a number of cannabis plants, variously described as being either 28 or 29,[2] each about a metre tall, and about six weeks old. They also located a total of 24 lightshades with 600 watt globes, six charcoal filters, four electrical exhaust fans, 24 transformers and one power timer. Each room was found to contain a similar hydroponic setup, although room ‘1’ was not operating at the time.
[2]Sentencing Remarks [4] (28 plants). Cf Forfeiture Ruling T4:13 (29 plants).
Within a kitchen cupboard, police located a plastic bag containing green vegetable matter. In the respondent’s bedroom, they found three ecstasy tablets and seven vials of ‘GHB’,[3] which might be termed a ‘party drug’. They found in a brown zip case located in a drawer the sum of $14,180 in cash which was the subject of the summary charge. It seems that there was also, in the bedroom, an underground entrance to the garage bunker.
[3]Gamma-hydroxybutyric acid.
The cannabis located in the bunker, and the house, was weighed. The plants found in room ‘2’ of the bunker weighed 24.10 kilograms. A further 3.54 kilograms of cannabis was found within five plastic tubs within room ‘1’. The 45 seedlings located in the corridor of the bunker weighed 217.8 grams. The plastic bag found in the kitchen contained 51 grams of cannabis.
The respondent was interviewed by police. He was entirely cooperative. He told them that he had built the underground bunker some two years earlier. He said that the dried marijuana, located in room ‘1’, was from a previous crop which he had grown. The plants that were growing in room ‘2’ were self-watered by pump, but the seedlings were hand-watered. He acknowledged that he had installed an electrical bypass, acting upon advice that he had received. It was later established that the amount of electricity stolen came to just over $18,000.
The respondent told police that he was able to sell the cannabis that he cultivated for between $2,000 and $3,000 per pound. He said that, ordinarily, he would sell it at a shop, or in a park, but he did not have regular buyers. He said that he had learnt how to cultivate cannabis from the internet. He accepted that some, at least, of the cash found in his bedroom was the proceeds of the sale of cannabis.
The respondent said that he used GHB when he went to parties. The three ecstasy tablets were for his personal use. He told police that he smoked marijuana regularly. He either grew his own, or purchased it from others.
The respondent said that he had grown a total of six crops. The first four crops had been grown within the garage, before the bunker had been built. The last two had been grown in the bunker, using more sophisticated equipment.
The proceedings below
The trial judge heard the respondent’s plea in December 2010.
The total weight of cannabis seized at the premises was said, on the plea, to be approximately 28 kilograms. Whilst the cultivation or trafficking of that amount of cannabis would ordinarily invoke ‘automatic forfeiture’ of ‘tainted property’,[4] 25 kilograms being the commercial quantity pursuant to sch 11 pt 2 of the Drugs, Poisons and Controlled Substances Act 1981, the respondent ultimately pleaded to an offence of trafficking simpliciter.[5] Accordingly, although the respondent’s house was undoubtedly ‘tainted property’, the question whether it should be forfeited was a matter for the exercise of judicial discretion.
[4]Confiscation Act 1997 s 35. As to the operation of the automatic forfeiture provision, see generally DPP v Moloney (2011) 33 VR 23.
[5]The joint Summary of Proceedings and Issues recounts that the respondent was initially charged with several offences including trafficking in a commercial quantity of a drug of dependence, and that he was discharged at committal in respect of that charge.
There was a good deal of mitigatory evidence presented on the plea. On 18 January 2011, the sentencing judge, having considered that evidence, decided to impose a relatively modest sentence of two years’ imprisonment, all but six months of which was suspended. His Honour also made orders for compensation in favour of Origin Energy in respect of the electricity stolen, and ordered forfeiture of the $14,180 in cash seized by police.
Neither side appealed against the sentence imposed. The respondent was released from prison on 6 July 2011, having served his six month custodial term.[6]
[6]11 days pre-sentence detention having been declared at the date of sentence.
As would be expected in a case involving the trafficking of a significant quantity of cannabis, the Director of Public Prosecutions (‘the Director’) made application, soon after the respondent was arrested, for a restraining order over the whole of his property. That order was made on 22 December 2009. The following items of property were restrained:
·the Harley Street, Sunshine North property;
·the $14,180 in cash seized by police from the property (this was forfeited under s 32 of the Confiscation Act 1997 (‘the Act’) on 18 January 2011, when the respondent was sentenced);
·property at 134/173 City Road, Southbank (a flat belonging to the respondent which was removed from operation of the restraining order by an order made on 19 July 2011);
·property at Yendon No 2 Road, Yendon (a property belonging to the respondent which was removed from operation of the restraining order by an order made on 19 July 2011); and
·Victorian Taxi Licence No. MT 6330 held in the name of the respondent (removed from the operation of the restraining order by an order made on 19 July 2011).
Because the respondent was dealt with for trafficking simpliciter, rather than a more serious form of the offence, there was no basis upon which the Director could maintain the restraining order in respect of the entirety of the respondent’s property. Only ‘tainted’ property could be forfeited in respect of the trafficking simpliciter offence.[7] That meant that the Sunshine North property was potentially available to be forfeited, but none of the property, apart from the $14,180 in cash, which had been restrained. That explains why consent orders were made, as indicated above, varying the original restraining order to release the respondent’s other property from restraint. The equity in the released property was said to be valued at approximately $629,000.
[7]The offence of trafficking simpliciter being a schedule 1 offence under the Confiscation Act 1997.
For reasons that are not apparent, no notice was given of the Director’s application for forfeiture of the Sunshine North property until 18 May 2011, about seven weeks before the respondent was released from prison. The Director did not file his written submissions in support of forfeiture of the respondent’s house until 29 September 2011. The Crown filed further affidavit material in October 2011. The matter could not be heard until 4 November 2011, by which time the respondent had long since completed serving his term of imprisonment. I note that Judge Gucciardo, who heard the application for forfeiture, had previously been the judge who sentenced the respondent in January 2011.
On 28 November 2011, Judge Gucciardo adjourned the Director’s application to a date to be fixed. Before doing so, his Honour accepted an undertaking on behalf of the respondent to take steps to have the bunker permanently closed up.
On 23 May 2012, having been provided with evidence establishing that the bunker had been rendered permanently unusable (at a cost of nearly $12,000),[8] Judge Gucciardo ordered that the Director’s application for forfeiture be dismissed. His Honour made no order as to costs.
[8]Exhibits annexed to the respondent’s affidavit disclose that approximately $11,000 was paid for the supply and installation of 119 cubic metres of soil, and $678.20 was paid for the supply of concrete and concreting works.
The Director’s appeal to this Court
The Director now appeals, by notice filed on 6 June 2012, against his Honour’s dismissal of his application for forfeiture. The appeal is brought pursuant to s 74 of the County Court Act 1958, and is within the civil jurisdiction of this Court.
The sole ground of appeal is as follows:
1.The learned judge erred in law in not making a forfeiture order under section 33 of the Confiscation Act 1997 (‘the Act’) in the circumstances by:
(a) failing to order forfeiture of the entire property;
(b)in the alternative to subparagraph (a), failing to consider a forfeiture for an appropriate amount of the property;
(c)failing to give sufficient weight to the need to deter others from committing like crimes by ordering the forfeiture of the property;
(d)concluding that filling in the bunker on the property amounted to forfeiture of the property used in connection with an offence subject to the Act.
Put simply, the Director’s position may be summarised as follows. Although forfeiture was not automatic in this case, the amount of the cannabis grown in the bunker, and the centrality of the use of the premises in the commission of the offence, meant that no disposition, other than forfeiture of the property as a whole, had been properly open. Alternatively, and at the very least, nothing short of partial forfeiture would have been sufficient.
Relevant legislative background
The Director’s application for a forfeiture order had been made under s 32 of the Act. That section, which applies where an accused is convicted of a Schedule 1 offence,[9] permits the making of such an application, on written notice,[10] within the period specified.[11]
[9]Being an offence set out in schedule 1 of the Act.
[10]Confiscation Act 1997 s 32(4).
[11]Ibid s 32(2).
Section 33(1) of the Act makes it clear that an application under s 32 involves the exercise of judicial discretion. It provides as follows:
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.
The matters which may be taken into account in determining whether to order forfeiture under s 32 include those set out in s 33(5), which is in the following terms:
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)any 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).
The criteria set out in s 33(5) have remained the same since the Act came into force. Indeed, paragraphs (a) and (b) were initially included in s 7(2) of the Crimes (Confiscation of Profits) Act 1986, which was the precursor to the Act. The subsection, in its various forms, has been the subject of judicial consideration on a number of occasions.
The authorities
In R v Winand,[12] the facts were, in some respects, similar to those involving the present respondent. There, the appellant had been convicted of trafficking and possession of cannabis, and cultivating a narcotic plant.[13] He was sentenced to an effective term of nine months’ imprisonment, of which six months was suspended for 12 months. A forfeiture order was made at the time of sentencing regarding a number of chattels.
[12](1994) 73 A Crim R 497 (‘Winand’).
[13]He was hydroponically growing some 20 mature plants and 50 seedlings in the house that he owned. It is important to note that the house had no furniture in it, and was unoccupied. It was devoted entirely to the cultivation of cannabis: ibid 499.
At a later stage, the Director applied for forfeiture of the appellant’s house. That order was made. The appellant succeeded on appeal in having that order set aside.
The evidence showed that the property had been purchased out of money lawfully obtained, and that the appellant had resided there for a number of years before letting it out when he moved in with his girlfriend at other premises. Only when the tenant gave up the lease was it modified for the purpose of growing cannabis.
In a joint judgment (Phillips CJ, Crockett and Southwell JJ), the Court of Criminal Appeal dealt with the approach that should be taken to forfeiture applications in such cases. After referring to authorities dealing with similar legislation in other States, their Honours said:
[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?[14]
[14](1994) 73 A Crim R 497, 500-501.
Plainly, the statement of principle set out above goes much further than what was literally contained in s 7(2) of the Crimes (Confiscation of Profits) Act 1986, and is now contained within s 33(5) of the Act. It requires a balancing of many factors, only some of which are legislatively mandated. It suggests that the discretion vested in a judge faced with a forfeiture application of this kind is intended to be broad and multifaceted.
The statement of principle set out above from Winand has been considered, and applied, on a number of occasions.[15] So far as I can tell, it has never been doubted. To take but one example, in DPP v Tran (‘Tran’),[16] a case which also bore some similarity to the matter presently before this Court, Warren CJ dismissed a forfeiture application brought by the Director in relation to a property that had been used to grow cannabis.
[15]See, eg, DPP v Tran [2004] VSC 218; DPP v Gyurcsik (2007) 178 A Crim R 153; DPP v Nikolaou (2008) 183 A Crim R 133; Kinealy v DPP [2013] VSC 67.
[16][2004] VSC 218.
It is interesting to note that in Tran, the market value of the cannabis being cultivated was estimated to be between $69,000 and $103,500, a not insubstantial sum. On the other hand, the facts in Tran differed from the present case in that forfeiture of the property would have rendered the respondent in that case homeless. Accordingly, her Honour fixed upon ‘hardship’, as well as disproportionality, in rejecting the application for forfeiture. The Chief Justice, citing Winand as the leading authority dealing with the application of s 33(5), said:
I find … that the value of the equity held by the defendant in the property, regardless of any claim or asserted equitable interest, does not equate with the gravity of the consequences of forfeiture. This, too, deals with the nature of the defendant's interest in the property, although I observe that no formal evidence was put before the court as to any asserted equitable interest. The remaining matters may largely be considered on an “omnibus” basis, (that is, value and size of the crop and the like). Again, the forfeiture seems disproportionate to the consequences of forfeiture. [17]
[17]Ibid [14].
It is fair to say that Judge Gucciardo approached the application for forfeiture of the respondent’s home in accordance with the principles laid down in Winand, and subsequently adopted in other cases. He concluded that the balancing task that had to be undertaken in the course of exercising his judicial discretion favoured dismissing the forfeiture application (once the bunker had been filled in). He gave careful and detailed reasons for doing so. Put simply, he considered that it would be unfair, and a disproportionately harsh result, to forfeit the respondent’s house, given all of the factors relevant to the exercise of that discretion.
The Director’s submissions before this Court
Senior counsel who appeared on behalf of the Director recognised that this appeal required him to attack the manner in which Judge Gucciardo had exercised his discretion. It is fair to say that his submissions in support of that attack were somewhat diffuse.
Senior counsel first submitted that, as a matter of statutory interpretation, the task of construing s 33(5) should be carried out primarily by reference to the language and structure of the subsection, and without significant regard to what this Court, or its predecessor, might have said about that matter in the past. He developed that submission by pointing to some recent observations by the High Court to the effect that the task of statutory interpretation begins and ends with the text of the relevant provision.[18]
[18]R v Getachew (2012) 286 ALR 196, 198 (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See also Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd (2012) 296 ALR 156, 172 (Maxwell P, Weinberg JA and Ferguson AJA). In Baini v The Queen (2012) 293 ALR 472, 492, Gageler J commented upon the relevance of any ‘settled judicial meaning’ of statutory language when carrying out the interpretative task. That observation, which is obviously correct, flies directly in the face of the Director’s submission as to the role of precedent in statutory interpretation under modern High Court authority.
So much can be accepted. However, it is a far cry from according primacy to the text of the provision under consideration to the more far-reaching submission that senior counsel advanced to the effect that previous decisions regarding the meaning of the text can now largely be put to one side. The submission in that form is, in my view, without substance.
The second limb of senior counsel’s submission was that cases such as Winand were no longer to be regarded as good law because the Act has been materially amended. In particular, he drew attention to the enactment, in 2010, of s 3A of the Act, which is in the following terms:
3A Objects
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.
Section 3A was inserted into the Act by the Confiscation Amendment Act 2010. The Explanatory Memorandum to that Act states that the section was introduced:
to provide for the main objects of the Act, namely disrupting and deterring criminal activity and depriving persons of the proceeds of offences and tainted property.[19]
[19]Explanatory Memorandum, Confiscation Amendment Bill 2010 2.
In his second reading speech, the then Attorney-General (Mr Hulls) said:
At present, the Act's purposes are largely expressed in terms of technical aspects of the legislative scheme, without articulating the underlying policy aims and objectives. The Bill provides valuable focus by outlining those objectives, that is, to deprive persons of the proceeds and instruments of crime, to deter offending and to disrupt criminal activity by preventing the use of tainted property in further offending. This will assist in the interpretation and administration of the act.[20]
[20]Parliamentary Debates, Legislative Assembly, 12 August 2010, 3250.
It was submitted, on behalf of the Director, that the enactment of s 3A required a new interpretation to be accorded to s 33(5). The range of factors identified as relevant to the exercise of the discretion under that section were said to be constrained by the new provision, and primacy was now to be accorded to the factors set out in the second reading speech. This meant that, since 2010, applications for forfeiture had to be approached in a different way, with the scales heavily tilted in favour of the Director.
Senior counsel next submitted that even if his submissions as to statutory interpretation were rejected, Judge Gucciardo’s decision to dismiss the Director’s application for forfeiture should nonetheless be set aside. In other words, he submitted that even if Winand continued to be applicable, his Honour’s discretion had miscarried, and forfeiture was the only appropriate disposition.
That argument was put at two levels. First, it was submitted that no judge, acting reasonably, could have refused to order forfeiture in the circumstances of this case. This seemed to be a variant of what is generally described in public law as Wednesbury unreasonableness.[21] When it was indicated from the Bench that an argument pitched at such a high level might be difficult to sustain, senior counsel sensibly resiled from it. Whatever view might be taken of the merits of the decision below, this was not a case of Wednesbury unreasonableness.
[21]After Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Having abandoned Wednesbury unreasonableness, senior counsel retreated to safer ground. He argued that Judge Gucciardo’s discretion had miscarried because he took into account various irrelevant considerations. In particular, he pointed to Judge Gucciardo’s having taken into account the respondent’s having caused the bunker underneath the garage to be filled in, thereby ensuring that the area could never again be used for the cultivation of cannabis. It was submitted that s 33(5), on its proper construction, did not allow for any matter of that kind to be taken into account.
In his written submission, senior counsel also identified the following matters as irrelevant considerations: the background of ownership of the property; the fact the respondent had not been charged with cultivation; the fact that he had participated in a ‘niche’ market; the fact that the loss of the property would be a setback to the respondent’s rehabilitation; and that a forfeiture order affecting a third of the respondent’s asset pool would be ‘harsh’.
Alternatively, it was submitted that Judge Gucciardo’s discretion had miscarried because his Honour had declined to order forfeiture for an ‘improper purpose’.[22] Although that purpose was never clearly identified, I would infer that it was to have the property rendered incapable of being used again for cultivation of cannabis, and also to inflict some limited financial pain upon the respondent. In relation to that last matter, it was implicit in senior counsel’s submission that this measure of pain fell well short of what the Act required.
[22]The term ‘improper purpose’ was used in its administrative law sense, namely a purpose that fell outside the purview of the statute.
The respondent’s submissions on the appeal
Senior counsel for the respondent (who had also appeared on the forfeiture application below) submitted that there was no merit in any of the Director’s complaints.
In his written submissions, he dealt succinctly with points (b), (c) and (d) of the Director’s sole ground of appeal.
In so far as the Director argued, in point (b), that Judge Gucciardo had failed to consider ordering partial forfeiture, senior counsel’s response was blunt. He noted that his Honour had referred specifically, in the course of his ruling, to the possibility of partial forfeiture, but decided that even forfeiture of that limited kind would not be appropriate.[23]
[23]Forfeiture Ruling T11-12.
It is convenient to dispose of this particular point at this stage. The respondent’s contention is plainly correct. The complaint that is particularised in ground 1(b) was not pressed in oral argument. In my opinion, it should not have been advanced.
Ground 1(c) complains that Judge Gucciardo, in dismissing the application for forfeiture, gave insufficient weight to the principle of general deterrence. Senior counsel for the respondent submitted that there was no basis for that complaint. Both sides had addressed the issue of general deterrence during the course of their submissions below. Judge Gucciardo referred specifically to the importance of that factor in his ruling of 28 November 2011.[24] Indeed, his Honour emphasised its importance in the following passage:
The discretion as to whether or not to order forfeiture of property must be exercised consistently with the purposes of the legislation which vests the court with such power. In this context, I have considered s 3A(c) if the Act, which was inserted last year and which outlines the main object of the Act. This is augmented by a reading of the second reading of the bill in which the object and intention is articulated. These objectives are said to be: (1) to deprive persons of the proceeds and instruments of crime (2) to deter offending, and (3) to disrupt criminal activity by preventing the use of tainted property in further offending.
It is clear that by exposing offenders to the risk that any property used in connection with the commission of offences, that is that they may be liable to be forfeited, the law seeks to deter those minded to commit offences.[25]
[24]Ibid T7.
[25]Ibid.
I can deal with ground 1(c) at this stage as well. Having regard to the emphasis that his Honour placed upon general deterrence throughout his reasons, the only way in which it could be said that he failed to give sufficient weight to that factor would be if the Director’s application simply had to be granted. That would be tantamount to saying that the discretion could only be exercised one way, and equivalent to a finding of Wednesbury unreasonableness. I have already indicated that I consider any such contention to be untenable. The argument does not improve by being recast in this way.
Ground 1(d) argues that Judge Gucciardo erred by equating the cost of filling in the bunker with a forfeiture order. Senior counsel for the respondent submitted that the short answer to that complaint was that his Honour did no such thing.
It was submitted on behalf of the respondent that the only reason why the issue of the bunker being ‘filled in’ had assumed any significance below was that it was raised in direct response to a submission put forward on behalf of the Director. That submission was that forfeiture was the only way in which the Court could be satisfied that the respondent would not succumb to temptation and re-activate the bunker to grow cannabis. Indeed, it was submitted that forfeiture was required as a ‘targeted deterrent’.
It was only when that submission was advanced on behalf of the Director that the offer was made to have the bunker permanently filled in. However, because the property had been restrained, the leave of the Court was required in order to enable that course to be adopted. In effect, Judge Gucciardo did nothing more than defer judgment on the Director’s application until he could be satisfied that the specific concern regarding re-use of the bunker had been addressed.
Once again, ground 1(d) can be dealt with briefly. Judge Gucciardo’s decision to adjourn the matter in order to see whether the Director’s argument as to the danger of the bunker being re-activated had any real substance involved an entirely legitimate exercise of judicial discretion. It most certainly did not represent a finding, on his Honour’s part, that the cost of filling in the bunker was equivalent to a forfeiture order. I should emphasise that this particular complaint regarding his Honour’s decision was poorly drafted. It should not, in any event, have been pressed.
Senior counsel for the respondent then turned to the real issue in this appeal, as expressed in ground 1(a). Did Judge Gucciardo’s discretion miscarry when he ordered that the application for forfeiture should be dismissed?
It was submitted that the Director faced a significant hurdle in challenging the exercise of a discretionary judgment. The matter would have to be approached in the light of the usual limitations associated with an attack upon the exercise of judicial discretion.[26]
[26]House v The King (1936) 55 CLR 499.
The Director’s argument was that Judge Gucciardo had failed correctly to apply s 33(5), particularly in the light of the enactment, in 2010, of s 3A. It was submitted on behalf of the respondent that this was not so. His Honour, in his ruling of 28 November 2011, had referred specifically to s 3A, and, in particular, to s 3A(c). He considered the effect of that section upon the discretion in s 33(5). He concluded that, notwithstanding the enactment of s 3A, the factors to be taken into account in the exercise of his discretion remained the same as they always had been. It was submitted that, in that regard, his Honour was correct.
Senior counsel noted that the various factors set out in s 33(5) remained exactly as they always were, even after the introduction of s 3A. He noted also that s 33(4) permits the court ‘to take into account in determining the application any material that it thinks fit’. Plainly, he submitted, that is an indication of the width of the discretion conferred by the legislature under s 32. Indeed, if it were otherwise, the Court could not consider a number of the very matters upon which the Director himself relied. These included the gravity of the offending.
Contrary to the submissions advanced on behalf of the Director, senior counsel for the respondent argued that the meaning to be accorded to the various factors set out in s 33(5) should be ascertained, in part at least, by reference to what courts of high authority had said upon that subject. The fact that a particular statutory expression had been previously considered by an appellate court was not a matter to be ignored, but rather one which had to be taken into account.
It was submitted that s 3A had to be read in context. The Attorney-General’s second reading speech had sought to ‘articulate’ the policy underlying the Act, but there was nothing to suggest that it sought to change it. Nor was there anything in that speech to suggest that s 3A was enacted in order to narrow the scope of the discretion conferred by s 32. Contrary to the Director’s submission, s 3A did not create a presumption in favour of forfeiture. A wide range of factors, many of them considered in Winand, had been regarded as relevant in the past. They continued to be relevant to the exercise of the discretion under s 32.
Senior counsel further submitted that proportionality had to be regarded as a critical factor in the exercise of this discretion. The contrast between discretionary forfeiture under s 32, and automatic forfeiture under s 35, could not be more stark.
It was submitted that in considering whether to order forfeiture, Judge Gucciardo had been entitled to take into account not just the matters put before him on the forfeiture application, but also those matters that had been advanced on behalf of the respondent on his plea. These included the fact that the respondent had no relevant criminal history, and that he had been a diligent and hard-working employee throughout his entire adult life.
It was submitted that Judge Gucciardo was perfectly entitled to take into account the fact that the respondent had been appropriately punished for his offending. Importantly, when his Honour sentenced the respondent, he had taken no account of the possibility that the appellant might suffer forfeiture of his home. In oral argument, it was submitted that his Honour would have been in error to have done so, as that course would have involved taking into account the possibility of executive action.[27] As well, the respondent had already suffered significant financial pain. He had lost income whilst imprisoned. He had also incurred significant legal expenses. Moreover, he had been subjected to capital gains tax liability based upon the forced sale of his taxi plates. In addition, he had been obliged to meet continuing loan obligations in respect of the house, as well as paying for its upkeep and maintenance.
[27]Counsel likened the situation to cases involving the possibility that an offender’s parole will be cancelled. See, eg, R v Piacentino (2007) 15 VR 501. I note, however, that s 5(2AA) of the Sentencing Act 1991 simply provides that a court must not have regard to the possibility that ‘the length of time actually spent in custody’ will be ‘affected by executive action’. Counsel was correct, however, to say that the possibility of a forfeiture application being made (and the form of any orders that would be made on any such application) was speculative. See, eg, R v Tabone (2006) 167 A Crim R 18, 22 (Nettle JA): ‘in any event, there is no reason in principle to conclude that a sentencing judge commits a material error by failing to take into account in mitigation of penalty a possibility which the judge is unable on the evidence to quantify or estimate’. Cf R v Le [2005] VSCA 284, which, like Tabone, was an automatic forfeiture case, but where it was possible accurately to quantify the effect of forfeiture on the offender.
As Judge Gucciardo noted, the property had been purchased and paid for legitimately, and not out of any proceeds of crime. It was the respondent’s home. It was well cared for, and much loved. It had been his home for the best part of 20 years. In addition, there was evidence before his Honour that forfeiture would result in psychological harm to the respondent who was already suffering from various difficulties, including significant depression. Forfeiture would also harm the respondent’s prospects of rehabilitation.
It was submitted, most tellingly from the respondent’s perspective, that Judge Gucciardo had found that forfeiture of his home would be grossly disproportionate to the gravity of his offending. It would mean the loss of an asset in which he had equity of about $320,000 in response to an offence which, according to his Honour, had netted the respondent far less than $50,000. Plainly, Judge Gucciardo considered that the objective gravity of the offending did not warrant such an outcome.
Conclusion
In my opinion, the manner in which Judge Gucciardo dealt with this case was commendable. It was also in accordance with law.
His Honour was entitled to have regard to the fact that, had the Director not delayed in bringing his application for forfeiture until it was too late for that matter to be taken into account as a mitigating factor on sentence, the respondent might well have received a lesser term of imprisonment than he did.
I accept, of course, that, in cases of this kind, the Act confers upon the Director a right to bring forfeiture proceedings, ordinarily exercisable within six months of the date of conviction.[28] It does not follow that he should, as a matter of course, take up almost the whole of that period before making his intention clear. Given that forfeiture can properly be taken into account as a mitigating factor at the time an offender is sentenced, there is much to be said for the view that any such application should, if at all possible, be made prior to the hearing of any plea, and certainly before sentence.[29] Otherwise, an offender faced with the possibility of such forfeiture will potentially lose out twice. He receives no benefit by way of mitigation of sentence, and he may, ultimately, lose his property as well.
[28]See the definition of ‘relevant period’ in s 3 of the Act.
[29]See Confiscation Act 1997 s 33(3) which specifically contemplates the making of an application for forfeiture prior to the imposition of sentence, and also allows for the deferral of sentence until such application has been determined.
Senior counsel for the Director was unable to proffer any explanation as to why, in this case, the application for forfeiture was not filed until almost the expiration of the respondent’s sentence. I must say that I can see no justification for that delay.
The respondent’s offending was, of course, serious. Nonetheless, the objective gravity of this offence was not such as to make it just that he should be imprisoned, and lose his home as well. The fact that he had other assets meant that he would not suffer extreme hardship of the kind that was arguably demonstrated in cases such as Tran. Of course, that does not mean that the loss of his home would not, relevantly, amount to hardship, or that it would not be disproportionate to his offending.
Judge Gucciardo’s decision to defer ruling upon the Director’s application for forfeiture until the question of the possible re-use of the bunker had been resolved was a matter entirely within his discretion. That decision was prompted by the concerns expressed by senior counsel who appeared for the Director on the application. I see no error in what his Honour did. Indeed, as I have previously indicated, I regard his action in adjourning the hearing until the matter of the bunker had been clarified as perfectly sensible, and entirely appropriate. It would be quite wrong now, in my view, to allow the Director to rely upon Judge Gucciardo’s carefully weighed response to the concerns that the Director, through his counsel, had raised below, as the basis for a challenge to the exercise of his Honour’s judicial discretion.
I would dismiss this appeal. In my opinion, the Director should pay the respondent’s costs.
TATE JA:
I agree with Weinberg JA, for the reasons he gives, that the appeal should be dismissed. I also agree with the orders for costs that his Honour proposes.
VICKERY AJA:
I also agree with Weinberg JA, for the reasons he gives, that the appeal should be dismissed. I also agree with the order for costs that his Honour proposes.
- - - - -
2
12
0