Gough v The State of Western Australia - [2019] WASC 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GOUGH -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 374
CORAM:   SMITH J
HEARD:   15 OCTOBER 2019
DELIVERED          :   15 OCTOBER 2019
PUBLISHED           :   16 OCTOBER 2019
FILE NO/S:   CPCA 40 of 2016
BETWEEN:   MICHAEL KENNETH GOUGH
First Plaintiff
DIANNE GOUGH
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Interest in frozen property of declared drug trafficker - Application for orders dismissing objections - Declarations of confiscation

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 30, s 34, s 36, s 141(1)
Misuse of Drugs Act 1981 (WA), s 32A(1)

Result:

Orders dismissing objections
Declarations of confiscation made

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Defendant	:	Mr T A Staples

Solicitors:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Defendant	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Atkinson v The State of Western Australia [2018] WASC 218
Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; (2005) 31 WAR 212

SMITH J:

The application and the result

By summons filed on 24 July 2019, the Director of Public Prosecutions (DPP) seeks:
(1)an order that the objections by the first plaintiff, Michael Kenneth Gough, and the second plaintiff, Dianne Gough, to freezing notice WAPFN160096 be dismissed; and
(2)declarations that:
The following property that Michael Kenneth Gough ('GOUGH') owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 21 November 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:
(a)GOUGH's interest as registered proprietor in the land at Lot 145 on Deposited Plan 36797 in Certificate of Title Volume 2542, Folio 746, commonly known as 7 Semple Court, South Lake WA; and
(b)Cash in the sum of AUD $3,700.00, taken from GOUGH on 4 August 2016 at 7 Semple Court, South Lake WA, together with any interest thereon.
The application was heard on 15 October 2019. Following the hearing, I made the order and declarations sought by the DPP. These are my reasons for doing so.

Legal framework - declared drug trafficker - confiscation of property

Section 30 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) provides:
30. Declarations of confiscation, applying for and making
(1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
The property the subject of the declarations sought by the DPP is property said to be confiscated under s 8 of the Confiscation Act.

Section 8 provides:
8. Declared drug trafficker, certain property of confiscated
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
(2)When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated -
(a)all the property that the person owned or effectively controlled at the time that the person absconded;
(b)all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act.
(3)Nothing in subsection (1) or (2) prevents the confiscation of crime-derived property or crime-used property owned, effectively controlled or given away by a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act.
(4)Nothing in subsection (1) or (2) prevents a criminal benefits declaration from being made against a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act.
(5)Nothing in subsection (1) or (2) prevents an unexplained wealth declaration from being made against a declared drug trafficker or a person who has been charged with an offence that may lead to his or her being declared a drug trafficker.
Under s 9 of the Confiscation Act, registrable real property that is confiscated under s 8, vests absolutely in the State when the court declares, under s 30, that the property has been confiscated and the memorial of the making of the declaration is registered under s 113(1).
Before a declaration is made pursuant to s 8(1) of the Confiscation Act, the DPP must prove:[1]
(a)that the person who is said to have owned or effectively controlled the property has been declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act);
(b)the declaration was as a result of a 'confiscation offence', as defined in s 141(1) of the Confiscation Act. That term includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more;
(c)the offence was committed after the commencement of the Confiscation Act, that is, after 1 January 2001; and
(d)the subject property was owned, that is the person had a legal or equitable interest in the property, or was effectively controlled by the person declared to be a drug trafficker at the time the drug trafficker declaration was made.
[1] Atkinson v The State of Western Australia [2018] WASC 218 [21] ‑ [23] (Vaughan J).

Relevant factual circumstances

Mr Gough is the sole registered proprietor of the real property known as 7 Semple Court, South Lake.[2]
[2] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [13], MCP16, page 44.
On 4 August 2016, $4,700 was taken from Mr Gough at 7 Semple Court, South Lake. However, only $3,700 is sought to be the subject of a declaration.
On 10 August 2016, pursuant to s 34 of the Confiscation Act, a Justice of the Peace issued freezing notice WAPFN160096 (freezing notice) over $3,700 of the money and the real property known as 7 Semple Court, South Lake on grounds that:[3]
(a)there were reasonable grounds for suspecting the property is crime‑used;
(b)there were reasonable grounds for suspecting that the property is crime‑derived; and
(c)Mr Gough had been charged with an offence and could be declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act if convicted of the offence.
[3] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, MCP1, pages 5 ‑ 6, 8.
On 6 November 2018, the freezing notice was cancelled only as to crime‑used grounds.[4]
[4] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, MCP13, page 28.
Section 36(1) requires that, as soon as practicable after a freezing notice is issued, the notice must be served personally on:
(a)the person covered by the notice if the property was taken from a person; and
(b)an interested party if, at the time the freezing notice is issued, the applicant is aware of any other person who is, or may be, or claims to be, an interested party.
Pursuant to s 36(4), if, as a result of information in a statutory declaration given, in accordance with s 37, by a person who was served with a copy of the freezing notice, the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable.
Section 36(2) requires that, if the property (the subject of the freezing notice) is registrable real property, the applicant must lodge a memorial of the issue of the notice with the Registrar of Titles.
Section 36(6) requires that the applicant ensure that:
(a)the freezing notice is filed in the court specified in the notice; and
(b)an affidavit of service is endorsed on a copy of each copy of the freezing notice that is served on a person; and
(c)each endorsed copy is filed in the court.
The freezing notice specified the court in which an objection is to be filed as the Supreme Court of Western Australia.[5]
[5] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, MCP1, page 12.
On 10 August 2016, the freezing notice was filed in the Supreme Court.[6]
[6] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [3], MCP1, page 5.
The freezing notice was served on:
(a)Mr Gough on 11 August 2016;[7]
(b)the Australia and New Zealand Banking Group Ltd (ANZ) on 11 August 2016;[8] and
(c)Mrs Gough (Mr Gough's mother) on 18 August 2016.[9]
[7] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [4(a)], MCP2, page 15.
[8] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [4(b)], MCP3, page 16.
[9] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [4(c)], MCP4, page 17.
Statutory declarations were received from the following persons who claimed an interest in the property the subject of the freezing notice on their own behalf or on behalf of others:
(a)Mr Gough (dated 16 August 2016), stating that:
(i)the ANZ has an interest in the property at 7 Semple Court, South Lake to the approximate value of $233,000; and
(ii)Mrs Gough has a redeemable interest in the property to the value of $55,000.[10]
(b)Fiona Venuto, on behalf of the ANZ, (dated 23 August 2016) claiming an interest in the land at 7 Semple Court, South Lake pursuant to mortgage L400899, registered on 13 August 2010.[11]
(c)Mrs Gough (dated 23 August 2016) stating that she loaned Mr Gough $55,000 over the past three years to be used for living expenses and mortgage repayments to be repaid when he sold 7 Semple Court, South Lake.[12]
[10] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [5(d)], MCP8, page 21.
[11] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [5(g)], MCP11, page 25.
[12] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019 [5(h)], MCP12, page 26.
On 21 November 2017, Mr Gough was convicted in the District Court of the following three offences committed on 4 August 2016:
(a)one count of cultivating a prohibited drug, namely cannabis, with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act;
(b)one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act; and
(c)one count of possession of stolen or unlawfully obtained property, contrary to s 417(1) of the Criminal Code (WA), being $4,700 taken from Mr Gough at 7 Semple Court, South Lake.[13]
Each of these three offences is punishable by imprisonment of more than 2 years. Therefore, each is a 'confiscation offence'.[14]
[13] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, MCP14 and MCP15, pages 29 ‑ 43; only $3,700 of the cash the subject of the last count is the sum of cash frozen pursuant to the freezing order.
[14] See Misuse of Drugs Act 1981 (WA) s 34(2); Criminal Code (WA) s 417(1).
On the same day Mr Gough was convicted of the offences, he was declared to be a drug trafficker (on each of the three offences) pursuant to s 32A(1) of the Misuse of Drugs Act.[15]
[15] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, MCP14, page 39, MCP15, pages 42 ‑ 43.
On 10 August 2016, a memorial of freezing notice was lodged in relation to the freezing notice with the Registrar of Titles in respect of the land at 7 Semple Court, South Lake.[16]
[16] Affidavit of Morgan Charlotte Paling affirmed 26 June 2016 [3], MCP1, pages 3 ‑ 4.
On 1 August 2019, Mrs Gough informed the DPP that she did not oppose the declaration sought in respect of the confiscation of the property at 7 Semple Court, South Lake.[17]
[17] Affidavit of Kenneth Charles Adams sworn 24 September 2019 [3] ‑ [7], KCA1 and KCA2, pages 4 ‑ 5.
On 23 September 2019, Principal Registrar Strk made an order by consent in CPCA 39 of 2016, between the ANZ and the State of Western Australia, dismissing an application of the ANZ to set aside the freezing notice insofar as it relates to 7 Semple Court, South Lake.

Conclusion

In all the circumstances, I am satisfied that the DPP has established, on the balance of probabilities, the four matters identified in [7] of these reasons.
As the four matters have been proved I am satisfied that, by operation of s 8(1) of the Confiscation Act, the land known as 7 Semple Court, South Lake and the sum of $3,700 was confiscated, automatically, at the time the drug trafficker declaration was made. Given the mandatory terms of s 30, the court is compelled to make confiscation declarations as sought by the DPP in the summons. Where the requirements of s 30(2) of the Confiscation Act are met, the court has no discretion unless the court upholds an objection.[18]
[18] Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; (2005) 31 WAR 212 [49].
In circumstances where Mrs Gough does not seek to press her objection and Mr Gough has not appeared in these proceedings to press his objection, the court has no discretion but to make the order dismissing the objections and make the declaratory orders in respect of the property.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
16 OCTOBER 2019