DPP v Selcuk - [2008] VSC 37

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1447 of 2007

IN THE MATTER of the Confiscation Act 1997

THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ALTAMAN SELCUK	Respondent

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2007
DATE OF JUDGMENT:	27 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSC 37

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Confiscation of assets – Respondent convicted of intentionally causing serious injury – Application for forfeiture order in respect of motor vehicle – Whether tainted property – Whether vehicle used “in connection with” offence – Whether hardship – Forfeiture ordered – Confiscation Act1997 ss 3, 32 and 33

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich	Office of Public Prosecutions
The Respondent appeared in person

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HER HONOUR:

The application

On 4 October 2006, the respondent, Altaman Selcuk, pleaded guilty to one count of intentionally causing serious injury and one count of affray. On 29 November 2006, Mr Selcuk was sentenced to a total effective sentence of imprisonment of 6 years and 6 months, with a minimum non-parole period of 4 years.[1]
[1]R v Altaman Selcuk [2006] VSC 447. Having regard to pre-sentence detention, the earliest date at which Mr Selcuk may be released from custody is February 2009. His sentence expires in August 2011.

By notice dated 15 March 2007, the Director of Public Prosecutions (“the DPP”) applied for forfeiture of the car in which Mr Selcuk travelled to and from the scene of the crime (“the car”). The application is brought under s32 of the Confiscation Act 1997 (“the Act”), which empowers the DPP to apply for an order that property used in or in connection with certain serious criminal offences be forfeited to the Crown.

The DPP relies upon the fact that Mr Selcuk has been convicted of a Schedule 1 offence, namely intentionally causing serious injury (“the offence”).[2]
[2]Although the affray conviction is mentioned in one of the supporting affidavits, the application itself only relies on the conviction for intentionally causing serious injury. Accordingly, I will proceed on the basis that that is the only relevant offence.

The application is made before the expiry of the relevant period under s32(2)[3] and no previous application has been made under s32(1) in relation to the offence.
[3]Here, the application was made within 6 months after the conviction, and therefore falls within the definition of the “relevant period“ in s3 of the Act.

The key issues before me are whether the car has the relevant connection with the offending so as to be “tainted property” and, if so, whether I ought to exercise my discretion to order its forfeiture, particularly having regard to Mr Selcuk’s claim that loss of the car will cause hardship.

The DPP relies upon two affidavits of Rachel Marnie Fitzpatrick, sworn on 15 March 2007 and 26 April 2007, respectively. He also relies upon my sentencing remarks and the evidence before me at the plea hearing.[4]
[4]By virtue of s33(4) of the Act.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Selcuk

Details

AGLC: Director of Public Prosecutions v Selcuk [2008] VSC 37
Case: [2008] VSC 37
Decision Date: 27 February 2008

CaseChat Overview and Summary

In the case of DPP v Selcuk, the respondent was convicted of intentionally causing serious injury. The Director of Public Prosecutions applied for a forfeiture order in respect of the motor vehicle the respondent had used during the offence. The court was required to determine if the vehicle was tainted property, whether it had been used in connection with the offence, and if the forfeiture would cause undue hardship to any innocent party. The court examined the relevant sections of the Confiscation Act 1997, including sections 3, 32 and 33.

The primary legal issue before the court was whether the motor vehicle used by the respondent during the offence qualified as tainted property under the Confiscation Act 1997. The court had to consider if the vehicle was used in connection with the offence and if the forfeiture would cause undue hardship to any innocent party. The court also needed to assess if the forfeiture order was justified under the Act.

The court found that the motor vehicle used by the respondent during the offence was tainted property, as it had been used in connection with the offence. The court also concluded that the forfeiture would not cause undue hardship to any innocent party, as the respondent was the sole beneficiary of the vehicle and had derived a financial benefit from the offence. The court exercised its discretion under section 32 of the Confiscation Act 1997 and ordered the forfeiture of the vehicle. The court further found that the order was appropriate under section 33 of the Act, which allows for forfeiture if the court is satisfied that the property represents a benefit obtained from criminal conduct.

The court ordered the forfeiture of the motor vehicle under section 3 of the Confiscation Act 1997. The decision emphasised the importance of the court's discretion in deciding whether to order the forfeiture of tainted property, taking into account factors such as the connection between the property and the offence, and the potential hardship to innocent parties. The outcome of this case serves as a reminder of the potential consequences for those who engage in criminal conduct and use property to facilitate their activities.

Orders