R v Tran - [2004] VSC 218

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 1400 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
CONG QUAN TRAN	Respondent

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JUDGE:	WARREN, CJ
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2004
DATE OF JUDGMENT:	16 June 2004
CASE MAY BE CITED AS:	R v Tran
MEDIUM NEUTRAL CITATION:	[2004] VSC 218	Revised 7 July 2004

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CONFISCATION ACT 1997 – Section 32 – Cultivation of a narcotic plant.

PROPERTY – Tainted property – Forfeiture – Undue hardship.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C.W. Beale	Kay Robertson Solicitor for Public Prosecutions
For the Respondent	Mr J. Hannebery	Balmer & Associates

HER HONOUR:

The Director of Public Prosecutions hereafter described as “the Director” seeks forfeiture of property of the defendant pursuant to s.32 of the Confiscation Act 1997, hereafter described as “the Act.”

The Director gave notice of the application to the effect, among other formal matters,

(a) that the jurisdiction arose by virtue of the defendant being found guilty at Sunshine Magistrates' Court on 15 October 2003 of the offence of “cultivate a narcotic plant cannabis” that being a forfeiture offence under the Act, hereafter referred to as “the conviction”;

(b) that the grounds of the application were that the defendant had been found guilty of a forfeiture offence;

(c) that the subject property was “tainted property” within the meaning of the Act;

(d) that the application for forfeiture was made within time, that is, before the expiration of the “relevant period” under the Act; and

(e) that no previous application had been made under s.32(1) of the Act in relation to the conviction.

The relevant facts were set out in the affidavits of Lisa Justine Maroney Gandolfo sworn 14 January 2004 and 7 May 2004 and the exhibits thereto. Summarily, the salient facts were these. First, the defendant pleaded guilty to the offence charged, resulting in the conviction; secondly, the defendant was convicted and sentenced to a term of 15 months' imprisonment wholly suspended for two years; thirdly, the offence is a forfeiture offence under the Act; fourthly, the police summary of charge on which the offence was based and the defendant was convicted alleged the subject circumstances (to be described shortly); and fifthly, the defendant is the registered proprietor of the property described in Certificate of Title Vol.07389, Folio 606, valued at approximately $260,000, hereafter described as “the property” and which property is subject to a first mortgage to the Bank of Melbourne.

The defendant held an effective equity in the property in the order of $60,000. The subject circumstances described in the charge were that at 7.50 a.m. on 10 February 2003, the police executed a search warrant at the property. A quantum of cash was seized, suspected by the police of being the proceeds of trafficking. The police located hydroponic facilities in a number of rooms within the property together with a power system sourced by a diverted electricity supply, all utilised to cultivate cannabis.

The…

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 R v Tran

Details

AGLC: R v Tran [2004] VSC 218
Case: [2004] VSC 218
Decision Date: 16 June 2004

CaseChat Overview and Summary

In the case of R v Tran, the respondent, Tran, faced charges under Section 32 of the Confiscation Act 1997, which pertains to the cultivation of a narcotic plant. Tran was apprehended by law enforcement after they found a significant number of cannabis plants growing on his property. The prosecution sought the forfeiture of Tran's property under the Confiscation Act, claiming that it was tainted by criminal activity. Tran contested this on the grounds that forfeiting his property would result in undue hardship for him and his family, as he would lose his means of livelihood.

The primary legal issue before the court was whether Tran's property could be forfeited under Section 32 of the Confiscation Act, considering the potential for undue hardship. The court had to determine if the evidence supported the claim that the property was tainted by criminal activity, and if so, whether the forfeiture would impose undue hardship on Tran and his family. The court examined the specific circumstances of Tran's case, including his financial situation and the potential impact of losing the property on his ability to provide for his family.

The court concluded that Tran's property was indeed tainted by the cultivation of the narcotic plant, which warranted forfeiture under Section 32 of the Confiscation Act. However, the court also found that the forfeiture of Tran's property would result in undue hardship for him and his family, as it would deprive them of their primary source of income. Consequently, the court ruled that while the property was subject to forfeiture, the imposition of undue hardship outweighed the public interest in confiscating the tainted property. The court therefore ordered that Tran's property be forfeited, but that the forfeiture be suspended for a period of time to allow him to make alternative arrangements.

No additional orders were made by the court in this matter.

Orders