DPP v Kelly
[2004] VSC 467
•13 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1472 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| V | |
| ALAN RAYMOND KELLY | Respondent |
---
JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2004 | |
DATE OF JUDGMENT: | 13 September 2004 | |
CASE MAY BE CITED AS: | DPP v Kelly | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 467 | |
---
Application for compensation under s.32 Confiscation Act 1997 –Opposition to forfeiture s.45 Confiscation Act 1997 – Whether Respondent able to demonstrate hardship.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. O’Doherty | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | In Person |
HIS HONOUR:
By application dated 10 August 2004 pursuant to s. 32 Confiscation Act 1997, the Director of Public Prosecutions seeks forfeiture of the sum of $16,792.59.
The respondent to the application, Alan Raymond Kelly, pleaded guilty on 19 February 2004 in the Magistrates’ Court at Melbourne to trafficking in a drug of dependence, namely cannabis; cultivation of a narcotic plant, namely cannabis; and theft of electricity. He was convicted and sentenced to an aggregate term of imprisonment of twelve months which was wholly suspended pursuant to s. 27 Sentencing Act 1991. He was also ordered to pay a pecuniary penalty of $6000.
The offences for which Mr Kelly was convicted are forfeiture offences within the meaning of the Confiscation Act 1997. According to an affidavit in support of the Director's application sworn by Lisa Gandolfo and dated 9 August 2004, the offences to which Mr Kelly pleaded guilty were substantiated following the discovery of a hydroponically grown cannabis farm which was being conducted at a property at 39 Roseland Crescent, Hoppers Crossing which was owned by Mr Kelly and his wife, Raelene Kelly.
On 1 May 2003 Judge Holt in the County Court at Melbourne granted the Director of Public Prosecutions a restraining order in relation to the premises at 39 Roseland Crescent, Hoppers Crossing. At that time the property owned by Mr Kelly and his wife was encumbered by mortgage to the Westpac Banking Corporation.
In making the restraining order Judge Holt directed that the respondents to that application, Alan and Raelene Kelly, be restrained from disposing of, or dealing with, the property at 39 Roseland Crescent, a property at 22 Colorado Court, Werribee (which Mr Kelly has said in evidence today is the matrimonial home in which he and his wife and three children reside) and properties at 37 Dona Drive, Hoppers Crossing and 9 Brook Court, Hoppers Crossing. No evidence has been placed before me as to the extent of Mr Kelly or his wife's ownership or interest in the latter two properties.
On 27 May 2004 an application was made to Judge Holt to vary the restraining order. The application was made by the Director of Public Prosecutions. Judge Holt ordered that the property at 39 Roseland Crescent, Hoppers Crossing be sold and that upon completion of the sale of the property the proceeds of sale be disbursed as follows:
(a)in payment of all reasonable costs, charges and expenses incurred in the sale of the property;
(b)in payment of all moneys owing to Westpac Banking Corporation pursuant to mortgage registered on 6 June 2002; and
(c)to pay the balance of the proceeds of the sale by bank cheque to the Department of Justice Asset Confiscation Office to be held on trust pending final determination.
On 9 July 2004 a further application was made to Judge Holt to vary the restraining order. This application was made by Raelene Kelly. The order made by Judge Holt on 9 July 2004 was that the previous orders be varied to provide that half of the balance of proceeds of sale, being the interests of Raelene Kelly in the property at 39 Roseland Crescent, be paid to her and that the remainder of the balance of proceeds continue to be held by the Department of Justice on trust pending final determination of the matter. The amount which is the subject of the present application for confiscation is those balance of proceeds.
The Director's present application has been before the Practice Court on two prior occasions. On the last of those occasions, 27 August 2004, I adjourned the matter to a date to be fixed and ordered that Mr Kelly file a notice of opposition to forfeiture and an affidavit in support of his opposition setting out the details of hardship which he claimed he would suffer were an order to be made in the Director's favour, and any amounts of money which he had expended on the property which had been sold. I ordered that the notice and affidavit be filed within seven days and served upon the Director. Mr Kelly appeared in person.
As the notice and affidavit, the subject of my order of 27 August 2004, were not served upon the Director in the time stipulated, the Director has brought this application on. Mr Kelly this day has produced an affidavit dated 8 September 2004 in which he has listed some of the expenses which he deposes he incurred in the maintenance and upkeep of the property between the date of his conviction and the date that the property was sold. That expenditure was for landscaping, painting, and mortgage payments. In the course of his submission this morning, Mr Kelly has also sought to include the commission paid to the selling agents. The total amount for those items of expenditure is the sum of $12,228.00.
On the previous occasion upon which the matter was before me, a letter written by Raelene Kelly to an officer of the Office of Public Prosecutions dealing with some of the items of expenditure which Mr Kelly now claims was tendered (Exhibit 1).
In that letter Ms Kelly said:
"In regards to our phone call the other day to 39 Roseland Crescent, Hoppers Crossing, in the preparation for the settlement on 9 July I was wondering if I would be able to claim (other than my half) the repayments that I have made to keep the property going and the costs I put into renovating the home to get it to the maximum potential for the sale. Mr Kelly did not contribute any payments to the property. When I started working full time he believed that if he was to get nothing why should he contribute? I also knew that the higher I got the sale price the more money that I might see, so I re-did the gardens, some flooring, external painting et cetera, which came to approximately $2720.92. I hope I am not being too greedy or cheeky, but it would be nice just to recoup what I have spent. I can produce all the dockets for you and the repayment book to show that my figures are truthful."
Ms Kelly set out the repayments she claimed to have made between 28 November 2003 and 28 May 2004, as being $3133.69 and the renovation costs of $2720.92. She indicated that she would provide receipts if the Office of Public Prosecutions wished to see them.
When Mr Kelly addressed me on the last occasion he stated that he had made all these payments. I drew to his attention that, what he was telling me, was inconsistent with the letter to which I have just referred. As a consequence of those inconsistencies and the fact that there was no evidence before the court as to the financial circumstances of Mr Kelly, I made the orders to which I have referred.
Mr O'Doherty, who appears on behalf of the Director, has submitted that the relief which Mr Kelly seeks requires him to establish under s.45 Confiscation Act 1997 that he will suffer hardship if relief against forfeiture is not granted. Section 45 reads:
"1.If a court is satisfied that hardship might reasonably be likely to be caused to any person by a forfeiture order or a civil forfeiture order made by that court, the court:
(a)may order that the person is entitled to be paid a specified amount out of the forfeit property, being an amount the court thinks it necessary to prevent hardship to the person; and
(b)may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.
2.an applicant or an order under sub-s.1 must give written notice of the application to the applicant for the forfeiture order or the civil forfeiture order."
In the affidavit which Mr Kelly has filed this day, Mr Kelly set out the expenditure on the property which he says he incurred. He states in paragraph 11 of that affidavit that he is in current financial difficulties and requires funds urgently to make payment of outstanding credit card debts. He states that if he does not make payment in full, further proceedings will be commenced against him.
I drew to Mr Kelly's attention that the affidavit which he had filed would not, on its face, satisfy the requirements of s. 45 Confiscation Act 1997. That is to say it would not demonstrate that he was suffering hardship such as should lead the court to provide the relief permitted under s. 45. He thus gave further evidence before me and in the course of doing so produced a statement of account from his supplier of timber. Mr Kelly’s evidence was that he was a fencing contractor who acquired all of the timber for his business from this supplier.
The timber merchant’s statement shows that as at 28 August 2004 Mr Kelly owed $32,214.37 to the supplier. Mr Kelly also produced a Westpac credit card statement for the period up to 28 June 2004 showing that he owed $21,068.04 to the Westpac Bank. Mr Kelly did not produce either the bank statements relating to his business as a fencing contractor, or any bank statements relating to the joint account that he and his wife have and into which he has told me his earnings from the business are paid.
All in all the evidence which Mr Kelly has placed before me is in an unsatisfactory state, particularly having regard to the fact that either his wife or he, or both of them, had sought to mislead the Director in providing the Director with the letter to which I have referred. I have reservations about a number of the matters that Mr Kelly has told me about. His claim based upon hardship is not made out.
Nevertheless, it seems clear to me from the evidence, that money has been expended upon the property which was not only the money of Mr Kelly, but should probably be viewed as joint funds of Mr and Mrs Kelly. Notwithstanding her attempts to mislead the Director in her letter I think the proper view to take of the various items of expenditure about which I have been told is that half of that expenditure should properly be treated as expenditure of Raelene Kelly rather than the applicant. As these are moneys for which Raelene Kelly should be credited, an amount of $6,114.00 being half of the expenses which Mr Kelly was claiming as his own, should be separated from the amount which the Director seeks to have permanently confiscated. The amount of $6,114.00 should therefore be deducted from the amount which the Director seeks to confiscate.
In making that order I am prepared to accept that the Kellys are experiencing some level of financial difficulty. It is difficult to know precisely how serious their financial plight is. If it were necessary for me to do so, I would have permitted a formal application be made by Ms Kelly seeking the release of those funds to her and I will make an order to that effect.
The orders therefore that I would pronounce are:
(a)I will grant the Director's application and I order that the sum of $10,678.59 be forfeited.
(b) I order that the amount of $6,114.00 be released to Raelene Kelly.
0
0
0