May v The State of Western Australia

[2012] WASC 316

MAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 316

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 316
Published:	03/09/2012
Case No:	CPCA:61/2011	Heard:	30 AUGUST 2012
Coram:	HALL J	Delivered:	30/08/2012
No of Pages:	5	Judgment Part:	1 of 1
Result:	Objection dismissed Declaration of confiscation made
Category:	B
Click here for Judgment in Adobe Acrobat Format

Parties:	CHRISTIAN DAVID MAY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal property confiscation Drug-trafficker declaration Objection dismissed Property confiscated
Legislation:	Criminal Property Confiscation Act 2000 (WA)
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

• Last Updated: 04/09/2012


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS


CITATION : MAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 316 CORAM : HALL J HEARD : 30 AUGUST 2012 DELIVERED : 30 AUGUST 2012 PUBLISHED : 3 SEPTEMBER 2012 FILE NO/S : CPCA 61 of 2011 BETWEEN : CHRISTIAN DAVID MAY

Objector

AND

THE STATE OF WESTERN AUSTRALIA
Respondent


Catchwords:

Criminal property confiscation - Drug-trafficker declaration - Objection dismissed - Property confiscated

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Objection dismissed
Declaration of confiscation made


(Page 2)

Category: B


Representation:

Counsel:


Objector : No appearance
Respondent : Ms F A Humphries


Solicitors:


Objector : No appearance
Respondent : 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




(Page 3)

1 HALL J: This matter involves an application under s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) brought by Christian David May, objecting to a freezing notice.

2 On 4 July 2012 the Director of Public Prosecutions (DPP) sought orders dismissing Mr May's objection and for a declaration that all the property owned or effectively controlled by him at the relevant time had been confiscated to the State of Western Australia pursuant to s 8(1) of the CPCA.

3 On 30 August 2012 I made the orders sought by the DPP. These are my reasons for doing so.

4 The application for the orders dismissing the objection is made on the basis that the objection cannot be successful because Mr May has not established the criteria in s 84(2) of the CPCA. The application for a declaration that the property of Mr May has been confiscated is made on the basis that he was declared to be a drug-trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 10 April 2012 as a result of being convicted of confiscation offences after the commencement of the CPCA.

5 On 29 July 2011 a freezing notice WAPFN 110104 was issued pursuant to s 34 of the CPCA. This was done because Mr May had been charged with an offence and could be declared to be a drug-trafficker pursuant to s 32A(1) of the Misuse of Drugs Act if convicted of the offence.

6 On 10 April 2012 Mr May appeared in the District Court and pleaded guilty to one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act. Pursuant to s 32A of the Misuse of Drugs Act a drug-trafficker declaration must be made if a person is convicted of a serious drug offence in respect of which the prohibited number of plants is not less than that set out in sch 8 of that Act. Schedule 8 provides that the number of prohibited cannabis plants for the purposes of a drug-trafficker declaration is 20. The number of plants involved in Mr May's offence was 55. Accordingly, a drug-trafficker declaration was made in the District Court.

7 Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the 28th day after the service cut off date for the property. Parties with an

(Page 4)


interest in the frozen property were personally served. An objection was filed by Mr May by way of an originating summons on 15 August 2011.

8 Pursuant to s 8 of the CPCA, 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 that was committed after the commencement of the CPCA, namely 1 January 2001, all of the property that the person owned or effectively controlled at the time he was declared to be a drug-trafficker and all the 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 CPCA, is confiscated to the State of Western Australia. Accordingly, all of Mr May's property was automatically confiscated pursuant to s 8 of the CPCA on 10 April 2012 as a consequence of him being declared to be a drug-trafficker.

9 If a court finds that property has been confiscated under s 8 of the CPCA, then it must, pursuant to s 30(2) of the CPCA, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 [15].

10 The DPP has filed affidavits establishing that Mr May is the registered proprietor of land at Lot 2 on strata plan 28816 in Certificate of Title Volume 2046 Folio 860, known as 19A Lonson Street, Hamilton Hill. He is also the registered owner of a 2006 Augusta 998 cc motorcycle registration number 1DH 178. The affidavits also establish that other potentially interested parties have been served with the relevant papers. No objections other than that of Mr May have been filed.

11 No evidence has been placed before the court on behalf of Mr May to establish that it is more likely than not that he does not own or effectively control the property that is proposed to be the subject of the declaration: s 79(1), s 81(1) and s 84(2) of the CPCA. Mr May did not appear at the hearing of this matter.

12 In these circumstances Mr May's objection to the confiscation of the frozen property must be dismissed. I am also satisfied that it is appropriate to declare that all the property owned or effectively controlled by Mr May at the time he was declared to be a drug-trafficker and all property that he gave away at any time before the drug-trafficker declaration was made has been confiscated to the State of Western Australia. This includes, without limiting the generality of the

(Page 5)


declaration, the property at 19A Lonson Street, Hamilton Hill and the 2006 Augusta 998 cc motorcycle referred to above.

13 The DPP sought an exclusion to the general confiscation declaration, being money standing to the credit of Mr May in a Bankwest Mortgage Shredder Home Loan account number 1450292811. An order was also made that Mr May deliver up or cause to be delivered up the motorcycle to such place as is nominated by the DPP or his agent. Given that that motorcycle has been declared to be confiscated to the State an order in those terms was appropriate.