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:

1. 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.”

1. 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.

1. 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.

1. 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.

1. The defendant made full admissions to the police and, as already observed, pleaded guilty to the charge.  Subsequently, on 7 March 2003, an order was made in the County Court restraining the sale or encumbrance of the property.  The circumstances or basis upon which the order was made in the County Court was never properly explained.

1. It was submitted by the Director that the volume of cannabis, the subject of the offence, was relevant.  This was disputed by the defendant principally on the basis that there was no, or insufficient evidence, as to the quantum, whether it was wet or dry and the quality of the cannabis involved.  As a consequence, leave was granted to the Director to file additional evidence on affidavit as to these matters.  Ultimately, the Director filed an affidavit to the effect that a significant quantity of cannabis of a reasonable quality was found at the premises.  These matters were set out in the second affidavit of Ms Gandolfo and were unchallenged.  In particular, it was alleged by the Director that the subject cannabis had a market value in the range of approximately $69,000 to $103,500.  The variation in value largely turned on reigning market price and crop yield.

1. It transpired that the estranged wife of the defendant and his son asserted an interest in the property.  In particular, they asserted that the defendant purchased the property from joint funds and that there was an intention that the defendant held a beneficial interest in the property for the benefit of the son.  The former wife and the son of the defendant appeared on their own behalf and allowance needed to be made for language difficulties on the part of the wife, who seemed to rely heavily on the son for the purposes of translation.  However, I observed that both the son and the former wife of the defendant were content to have the matter proceed as it did.

1. For the Director, reliance was placed in support of the application upon the gravity of the offence, the quantity, quality and value of the subject cannabis and the legislative purposes of the Act.  It transpired that the property provided the sole place of residence of the defendant and if the order sought was made it was asserted he would be without a home. For the Director, it was submitted that if this proved to be the case the defendant could find rental accommodation.  Apparently the defendant is at present unemployed.  It is difficult to see how he could manage rental accommodation although it might be said he will have difficulty meeting mortgage payments to the mortgagee, the Bank of Melbourne, in all the circumstances; however this matter was not ventilated before me.  Essentially the position of the defendant is that an order for forfeiture will give rise to undue hardship and be disproportionate to the crime. 

1. The applicable principles are set out primarily in the matter of Lake:[1] 

“In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its object, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. … The provision for relief [under the Act] must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of that Act. Something more than ordinary hardship in the operation of the Act is therefore meant.”

[1](1989) 44 A Crim R 63 (per Kirby P as he then was) at 66 – 67.

1. The approach has been followed since in R v Galek[2] and also R v Wealand[3].  Yet the most convenient history, involving similar legislation, was considered and analysed by Debelle, J. as part of the Full Court of South Australia in Taylor v Attorney General of South Australia[4].  In particular, the heads of principle described by Debelle  in Taylor[5] are relevant:

   [2](1993) 70 A Crim R 252 at 258.

   [3](2002) 136 A Crim R 159.

   [4](1991) 53 A Crim R 166 at 175 – 179.

   [5]At 178.

·the value of the property;

·the nature of the offender’s interest in the property;

·the value of the drugs involved or the size of the crop;

·whether the property was acquired with the proceeds of the sale of drugs;

·the utility of the property of the offender;

·the length of ownership of the property;

·the extent to which the property is connected with the commission of the offence;

·the fact that the forfeiture is intended as a deterrent; and

·the interests of innocent third parties.

1. As observed by the Victorian Court of Criminal Appeal in the matter of Winand[6], these principles are applicable although not necessarily exhaustive:⁷ 

“…the value of the subject property, the nature and gravity of the offence, the use made of the property, the degree of the offender’s involvement, the offender’s antecedents, the value of any other property confiscated and the penalty imposed, the nature of the offender’s interest in the property, the value of the drugs involved or the size of the crop, whether the property was acquired with the proceeds of the sale of drugs, the utility of the property to the offender, the length of ownership of the property, the extent to which the property was connected with the commission of the offence, the fact that forfeiture is intended as a deterrent, the interest of innocent parties in the property and the extent (if any) to which the retention of the property might bear on the offender’s rehabilitation.”

[6]See 500 to 501.

1. Applying the principles as set out, therefore, in Winand, I make the following findings.

1. I find that the value of the property, that is, the value of the equity of the defendant in the property, may potentially on the evidence of the Director substantially exceed the value of the subject cannabis.  I find that the nature and gravity of the offence, although serious, is not necessarily such as to warrant, in the circumstances of this case, the gravity of the consequences of the forfeiture sought.  I further find that the degree of the defendant's involvement in the offence, for present purposes, is clear-cut; however there are others, in particular his son, who will be affected by the order.  I further find that the defendant's antecedents do not arise because he has none. 

1. In addition, I find, as already suggested, that the value of the equity held by the defendant in the property, regardless of any claim or asserted equitable interest, does not equate with the gravity of the consequences of forfeiture.  This, too, deals with the nature of the defendant's interest in the property, although I observe that no formal evidence was put before the court as to any asserted equitable interest.  The remaining matters may largely be considered on an “omnibus” basis, (that is, value and size of the crop and the like).  Again, the forfeiture seems disproportionate to the consequences of forfeiture. 

1. Weighing these and other matters up, as distilled in Winand, I cannot be satisfied that it is appropriate to make the orders sought.  However, the most significant factor in this case is the extent of hardship to the defendant.  He would be rendered, as it was put on his behalf, “homeless”.  I cannot be satisfied, in particular weighing up the factors of deterrence, impact on innocent parties and the defendant's rehabilitation, that the order should be made.  I consider that, in the circumstances of this matter, the making of the order would cause, in the words of the Court of Appeal in Winand “…unacceptable hardship and … be manifestly unfair.”

1. It follows from these observations that the application will be dismissed and I will order accordingly.