Jendrzejak v The State of Western Australia

[2012] WASC 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JENDRZEJAK -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 122

CORAM:   EM HEENAN J

HEARD:   16 FEBRUARY 2012

DELIVERED          :   16 FEBRUARY 2012

PUBLISHED           :  5 APRIL 2012

FILE NO/S:   CPCA 86 of 2010

MATTER                :Section 79 of the Criminal Property Confiscation Act 2000

and

Freezing Notice WPFN100138

BETWEEN:   STEVEN DAVID JENDRZEJAK

AMELIA JENDRZEJAK
Plaintiffs

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal Property Confiscation - Objections dismissed - Declaration that all first plaintiff's property has been confiscated - Second plaintiff's half  interest in certain real property excluded

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Objections dismissed
Declaration of confiscation except for second plaintiff's interest in real property

Category:    B

Representation:

Counsel:

Plaintiffs:     In person

Defendant:     Ms F A Humphries

Solicitors:

Plaintiffs:     In person

Defendant:     Director of Public Prosecutions (WA)

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

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) (2010) 201 A Crim R 324; [2010] WASCA 133

Hendricks v State of Western Australia [2002] WASC 86

Re Smith; ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157

1. EM HEENAN J: This is an application under s 79 of the Criminal Property Confiscation Act 2000 (WA), brought by Mr Steven David Jendrzejak, and his wife, Amelia Jendrzejak, against the State of Western Australia, objecting to a freezing notice and subsequent application for a declaration of confiscation of property sought under s 30 of the Criminal Property Confiscation Act 2000.

2. The Director of Public Prosecutions is seeking an order that all the property of Mr Steven David Jendrzejak has been confiscated to the State of Western Australia under s 79(8) of the Act by reason of the fact that he has been declared to be a drug trafficker, by an order of the court made on 2 August 2010.

3. Earlier in these proceedings the present application had been brought by Mr and Mrs Jendrzejak, objecting to the proposed confiscation order, but in the light of further developments the Director is now seeking an order dismissing those objections on the basis that they cannot be successful because the plaintiffs cannot bring themselves within any part of s 84(2) of the Act, except to the small extent which I will mention soon.

4. The application for the declaration under s 30 is made on the basis that Mr Jendrzejak's property has been confiscated pursuant to s 8 of the Act upon him being declared a drug trafficker within s 34A(1) of the Misuse of Drugs Act 1981 (WA) on 2 August 2010, as I have already mentioned. That declaration followed as a result of him being convicted of confiscation offences committed after the commencement of the Act, the details of which are set out in an affidavit of Ms Narmoyle of 11 October 2010.

5. On 5 July 2010, under s 34 of the Act, a freezing notice, WAPN100138, was issued on the basis that Mr Jendrzejak had been charged with an offence and could be declared to be a drug trafficker under s  32A(1) of the Act, if convicted.  The freezing notice was later served personally upon Mr Jendrzejak and also upon Mrs Jendrzejak.  Under the Act each had an opportunity to lodge objections in relation to the proposed freezing order or to any ensuing confiscation of property.  Under the legislation details of any objections were to be set out.

6. Mrs Jendrzejak is an interested person within the meaning of s 3 of the Act, because she has an interest in part of the property the subject of the freezing notice.

7. Under the legislation by s 7(1) certain frozen property is confiscated to the State if there is no objection to confiscation filed on or before the 28th day after the service cut-off date. These proceedings were commenced within the time limit and hence there was no possibility of an automatic confiscation. In any event, automatic confiscation pursuant to s 7(1) of the Criminal Property Confiscation Act 2000 does not apply to drug trafficker property unless the freezing order results from the property being crime‑used or crime‑derived:  see Centurion Trust Company Ltd v Director of Public Prosecutions (WA) (2010) 201 A Crim R 324; [2010] WASCA 133 (Buss & Owen JJA)

8. Under s 8 of the Act, when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence committed after the commencement of this legislation, that is on 1 January 2001, all the property that that person owned or effectively controlled at the time that he was declared to be a drug trafficker, and all property that he gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the legislation, becomes confiscated to the State of Western Australia.  Accordingly, Mr Jendrzejak's property became automatically confiscated under s 8 on 2 August 2010, when he was declared to be a drug trafficker, as I have already described.

9. Once it is established the property has been confiscated under s 8, in the circumstances which I have described or otherwise, this court is obliged, without having any discretion in the matter, to make a declaration to that effect, that is the effect of s 30(2) of the Act. This has been confirmed by the decisions of his court in Hendricks v State of Western Australia [2002] WASC 86 [19] and in Re Smith; ex parte Director of Public Prosecutions for Western Australia (No )] [2004] WASC 157 [15].

10. The evidence establishes that Mr Jendrzejak is registered as one of two tenants in the land situated and known as lot 15 on plan 2400 in certificate of title vol 2114 folio 681, known as 3 York Road, Collie.  The Director of Public Prosecutions accepts and acknowledges that only the joint interest in the property as owned by Mr Jendrzejak is confiscated.  This confiscation order will, thereupon, sever the joint tenancy and convert it into a tenancy in common in equal shares, and it will be that one undivided equal half‑share of Mr Jendrzejak as tenant in common which is confiscated to the state.

11. In addition, there is a Holden Rodeo utility, registration number 1CT‑1132, with a chassis number and an engine number which are set out in the affidavits, which I do not mention.  As a result of evidence put before the court and to the DPP by Mrs Jendrzejak, the DPP acknowledges that she has an 80% interest as a tenant in common in that vehicle, leaving a 20% interest as a tenant in common in Mr Jendrzejak.  It is that 20% interest of the first plaintiff which becomes confiscate, and the 80% interest is retained by Mrs Amelia Jendrzejak.