Lamonaca v The State of Western Australia
[2014] WASC 251
•16 JULY 2014
LAMONACA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 251 | |
| 16/07/2014 | |||
| Case No: | CPCA:39/2012 | 11 JUNE 2014 | |
| Coram: | EM HEENAN J | 11/06/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application to set aside freezing notice dismissed Declaration of confiscation of property made | ||
| B | |||
| PDF Version |
| Parties: | GIUSEPPE ANTONIO LAMONACA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Application to set aside freezing notice Declared drug trafficker Application dismissed Declaration of confiscation made |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 8, s 30 Misuse of Drugs Act 1981 (WA), s 32A |
Case References: | Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Application to set aside freezing notice - Declared drug trafficker - Application dismissed - Declaration of confiscation made
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30
Misuse of Drugs Act 1981 (WA), s 32A
Result:
Application to set aside freezing notice dismissed
Declaration of confiscation of property made
Category: B
Representation:
Counsel:
Plaintiff : Mr M T Rennie
Defendant : Mr T A Staples
Solicitors:
Plaintiff : HFM Legal
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157
1 EM HEENAN J: On 19 June 2012, the plaintiff objector, Giuseppe Antonio Lamonaca, issued an originating summons against the State of Western Australia seeking orders that a freezing notice, having a designated number, issued in respect of property alleged to have been owned by him, under the provisions of the Criminal Property Confiscation Act 2000 (WA) (the Act), should be set aside, and for other orders and directions.
2 Since then the proceedings have continued on foot and by summons dated 24 September 2013, the State of Western Australia, acting through the Director of Public Prosecutions for the State, sought an order that Mr Lamonaca's objection to the freezing notices be dismissed and also sought a declaration, pursuant to s 30 of the Act, that certain designated property had been confiscated pursuant to s 8(1) of the Act.
3 That summons is supported by an affidavit of Mr SM Wallace, sworn 9 September 2013, which describes in detail the property concerned, the various freezing notices, and other relevant matters. The affidavit explains how, in the time which elapsed from 2012 to 2013, an agreement had been reached to exclude certain items from the various freezing notices, leaving only three items or categories of property, the subject of contention, and in respect of which the State seeks declarations of confiscation. Those properties are:
(a) The land at Lot 7 on Plan 7571 in Certificate of Title vol 1275, folio 399, commonly known as 880 Chapman Road, Glenfield.
(b) The land at Lot 68 on Plan 1123 in Certificate of Title vol 1411, folio 145, commonly known as 4 Otley Place, Gosnells.
(c) Money standing to the credit of Lamonaca in Ray White's Maddington's rental trust account for the property at 4 Otley Place, Gosnells, as at 17 June 2013.
4 I take it to be the decision of the DPP that all proceeds from the rental of that property to date are to be included in the orders which the DPP seeks.
5 This specific designation of the property is without limitation of the generality of declaration being sought, that all the property of Giuseppe Antonio Lamonaca owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA), as at 17 June 2013, and all the property which he gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia.
6 No affidavit or other evidence has been filed by Mr Lamonaca in response to the application. The evidence before me is, therefore, uncontested as to his ownership of the property which I have just described, nor is there any contest over the evidence that he was declared to be a drug trafficker. Accordingly, it is appropriate that orders as sought by the DPP should be made.
7 The application for the declaration under s 30 of the Act was made on the basis that Mr Lamonaca's property has been confiscated pursuant to s 8 of the Act, upon him being declared to be a drug trafficker, pursuant to s 32A(1), a declaration made on 17 June 2013, as a result of him being convicted of confiscation offences committed after the commencement of the Act. The details of the conviction and the offences are in Mr Wallace's affidavit at par 22. The freezing notice first referred to was issued on 7 June 2012, on the basis that Mr Lamonaca had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) if convicted. The second freezing notice was issues on the same basis, again, on 7 June 2012 and a third freezing notice was issued on 28 June 2012, again on the same basis.
8 The evidence is that the freezing notices, or copies of them, were served, and no applications have been made on behalf of any interested persons to contest or to vary the effects of the freezing notices, apart from a notice of objection filed by Mr Lamonaca already mentioned. This came before the court in August of 2012, resulting in an originating summons issued by him in an associated action on 19 June 2012. Those two proceedings were later consolidated into the present proceedings.
9 Under s 8 of the Act:
(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.
11 There has been no evidence by Mr Lamonaca to establish that it is more likely than not that he does not own or actively control the property, or has not at any time given any away. Accordingly, it is appropriate to make the declaration.
12 So far as ownership of the property is concerned, Giuseppe Antonio Lamonaca and Jay Lamonaca are registered as joint proprietors of the land of Lot 7 on Plan 7571 in Certificate of Title vol 1275 folio 399, commonly known as 880 Chapman Road, Glenfield.
13 However, Jay Lamonaca's right, title, and interest in that land, were transferred to the applicant, pursuant to an order of the Family Court made on 10 April 2012. The applicant, Mr Lamonaca, is the sole registered proprietor of Lot 68 on Plan 11230 and Certificate of Title vol 1411 folio 145, commonly known as 4 Otley Place, Gosnells. Income from the Gosnells property arising from rent is held in a Ray White rental trust account to the credit of Mr Lamonaca. That rental income, pursuant to s 34(7) of the Act, is taken to be part of the property and, accordingly, confiscated.
14 For these reasons, orders will be made are proposed in the respondent's summons of 24 September 2013 at pars 1, 2 and 3.