DPP (Vic) v Nikolaou - [2008] VSC 111

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1471 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)	Applicant
v
THEODOROS NIKOLAOU	Respondent

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 March; 4 April 2008
DATE OF JUDGMENT:	14 April 2008
CASE MAY BE CITED AS:	Director of Public Prosecutions (Victoria) v Nikolaou
MEDIUM NEUTRAL CITATION:	[2008] VSC 111

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CONFISCATION ACT 1997 – Cultivation and trafficking of cannabis and theft of electricity at home owned but not resided in by respondent – Whether property should be forfeited – Hardship – Applicable principles – Relevance of lack of candour of respondent.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Flower	Office of Public Prosecutions
For the Respondent	Mr T McLean	GPZ Legal

HIS HONOUR:

In this proceeding the Director of Public Prosecutions has applied, under s 32(1) of the Confiscation Act 1997 (Vic), for a forfeiture order with respect to a property situated at 18 Gawalla Street, Rye, which is owned by the respondent.

Background

The respondent is now 43 years of age. Since 1986 he has been the registered proprietor of the property at Rye. On 8 February 2006, police obtained a warrant to search the premises pursuant to s 81(1) of the Drugs Poisons and Controlled Substances Act 1981. Upon executing the warrant, the police observed that all three bedrooms of the house had been set up to grow cannabis hydroponically. Eight cannabis plants were located in the first bedroom, and fifteen cannabis plants were located in the second bedroom. There were no plants growing in the third bedroom. In each of the three bedrooms there was an elaborate growing system, consisting of buckets of grow-wool and an electric irrigation system of pumps and irrigation hoses, which were used to water and feed the plants. Lamps and fan shrouds were hanging from the roof to assist with the cultivation. In addition, a venting system, made of eight inch plastic pipe, had been installed and ducted under the floor of the three bedrooms. Police observed that internal panelling had been removed from one of the lounge room walls, in order to gain access to the fuse box, thus enabling the power supply to the house to be bypassed.

At the time of the search there were no occupants present at the property. The respondent was subsequently identified as the owner of the property and was contacted by the informant, Senior Constable Richardson. At the request of Mr Richardson, the respondent attended at the Rosebud Police Station. There he was arrested and interviewed.

In the course of that interview, which was recorded on tape, the respondent admitted that he was the sole owner of the property. He told the police that he did not live at the property, that it was a holiday house, and that no other person had access to it. The respondent further admitted that he had bypassed the power supply and built the hydroponic and venting…

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 (Vic) v Nikolaou

Details

AGLC: DPP (Vic) v Nikolaou [2008] VSC 111
Case: [2008] VSC 111
Decision Date: 14 April 2008

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions (Vic) versus Nikolaou was heard in the County Court of Victoria. The Director sought the forfeiture of property belonging to Nikolaou, who had been convicted of cultivating and trafficking cannabis, as well as stealing electricity. Nikolaou argued against the forfeiture, citing potential hardship to his family and his lack of candour, which was considered by the court in determining whether the property should be forfeited.

The central legal issues addressed by the court involved the application of the Confiscation Act 1997 to determine whether the property should be forfeited, despite the hardship it may cause to Nikolaou's family. The court also considered whether Nikolaou's lack of candour was relevant to the decision on forfeiture. The principles governing the forfeiture of property under the Confiscation Act 1997 were examined, with particular attention to the circumstances of the case, including the nature of the offending and the impact on Nikolaou's family.

The court found that, while the hardship to Nikolaou's family was a significant consideration, it was not the sole determining factor. The primary purpose of the Confiscation Act 1997 is to deprive offenders of the benefit of their criminal activities. The court held that Nikolaou's lack of candour during the proceedings was relevant and demonstrated a disregard for the legal process, which weighed in favour of forfeiture. Ultimately, the court decided that the property should be forfeited, balancing the need to deter crime with the potential hardship to Nikolaou's family.

The final orders of the court were that the property in question should be forfeited to the State in accordance with the provisions of the Confiscation Act 1997. The court emphasised the importance of the principles of justice and deterrence in reaching its decision.

Orders