Re Rizzo in the matter of an application by the Director of Public Prosecutions
[2014] VSC 225
•1 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1508 of 2007
IN THE MATTER of the Confiscation Act 1997
| - and - |
| IN THE MATTER of the conviction of BARTHOLOMEW RIZZO |
| - and - |
| IN THE MATTER of an application by the Director of Public Prosecutions for Victoria |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2011 | |
DATE OF JUDGMENT: | 1 May 2014 | |
CASE MAY BE CITED AS: | Re Rizzo in the matter of an application by the DPP | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 225 | |
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Application for Pecuniary Penalty Order - ss 58(1) and 68(2) of the Confiscation Act 1997 – property previously automatically forfeited – argument for use of part of automatic forfeiture proceeds in satisfaction of part of PPO – abuse of process – issue whether property subject of automatic forfeiture ‘tainted’ property – consideration s 20 Confiscation Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (the Applicant) | Mr S O’Bryan SC with Mr J Tomlinson | Office of Public Prosecutions |
| For the Respondent | Mr R Melasecca | Melasecca& Zayler Barristers & Solicitors |
HER HONOUR:
This is an application for a pecuniary penalty order (“PPO”) pursuant to ss 58(1) and 68(2) of the Confiscation Act 1997 (“the Act”). It is made by way of application dated 28 October 2008, supported by an affidavit sworn by Paul Byrden on 26 June 2009 and seeks a pecuniary penalty order in the sum of $266,748.00.
It is conceded by the respondent that the quantum of $266,748.00, sought by way of pecuniary penalty order, has been calculated in an appropriate manner by Paul Byrden, and he does not seek to dispute the contents of Byrden’s affidavit. Whilst the respondent does not dispute the quantum of the order, he seeks the Court to ameliorate the sum actually directed to be paid by the respondent by an amount of $180,000.00 which, the respondent submits, has already been forfeited by the respondent to the Crown. The respondent submits that sum of $180,000.00 ought be credited against the $266,748.00 that the Director of Public Prosecutions seeks in the pecuniary penalty order, resulting in a pecuniary penalty order of no more than $86,748.00.
By way of background the following should be noted:
1.The respondent was arrested in June 2007.
2.A restraining order was granted by the Honourable Justice Osborn on 7 June 2007.
3.The respondent was arraigned on 1 August 2008 with the plea heard on 3 November and 19 December 2008.
4.The respondent was sentenced on 9 February 2009, which sentence was the subject of appeal, and the respondent re‑sentenced on 17 May 2011.
5.The restraining order made by the Honourable Justice Osborn on 7 June 2007 restrained a number of items including, the property at 49 Linda Avenue, Box Hill North, four Westpac Bank accounts, and $188,560 in cash, a Holden utility motor vehicle, a jet-ski, jewellery and furniture items from the Box Hill North property.
6.His Honour declared that pursuant to s 15(3)(a) of the Confiscation Act 1997 that the property was restrained for the following purposes:
(a)to satisfy any forfeiture order that may occur under Division I of Part 3 of the Confiscation Act 1977, (which division relates to forfeiture upon application to the Court in which the defendant was convicted[1]);
(b)To satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act 1997, (which division relates to automatic forfeiture of restrained property on conviction of offences as listed in Schedule 2. The respondent was convicted of Schedule 2 offences[2]);
(c)to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act 1997 (which is self-explanatory[3]).
[1]My comments.
[2]My comments.
[3]My comments.
Exclusion orders were made in respect of certain property of the respondent which was claimed by others and the balance of the property was automatically forfeited. The respondent did not, within 60 days of the entering of his plea of guilty, make an application for exclusion, and the property was automatically forfeited at the end of September 2008. The respondent subsequently lodged an application for exclusion out of time. The affidavit in support of that application dated 29 October 2008 was made by Robert Mellasecca, solicitor, and stated as follows:
1.THAT I act in Mr Rizzo’s criminal mattes (sic);
2.THAT Mr Rizzo has a plea hearing listed on 3 November 2008 before Her Honour Justice King;
3.THAT in preparing this plea I have become aware that an application for exclusion pursuant to s 20 of the Confiscation Act 1997 was not lodged in this matter;
4.THAT it was my belief that the firm of Lobb and Kerr Solicitors had lodged the application and accordingly I did not so lodge an application as I predominantly act in criminal defence matters only;
5.THAT I have been advised by Lobb and Kerr Solicitors that they act for other interested parties and accordingly felt conflicted to act on behalf of Mr Rizzo;
6.THAT accordingly referring to items 1 to 5 above I have agreed to act on Mr Rizzo’s behalf in this application;
7.THAT the applicant Mr Rizzo has desired for this application under the Confiscation Act 1997 to be lodged at all points in time and the non‑lodging appears to have been through no fault of his own whatsoever.
It was submitted that the respondent had been informed by those acting on behalf of the applicant, that as a result of the failure to lodge the application for exclusion within 60 days of his conviction, there was no ability to seek to have the automatic forfeiture revoked. It would appear that the respondent, through his legal advisers, accepted that there was no basis on which a court could make an exclusion order due to the failure to lodge within the appropriate timeframe and the application was withdrawn.
Accordingly, there was no exclusion order sought in respect of the respondent’s interest in the property which had been gifted to him by his grandmother, that is the amount of $180,000.00, upon which the respondent relies to offset the pecuniary penalty order, sought by the Director of Public Prosecutions.
The respondent firstly submitted that the primary purpose of the restraining order made by Osborn J was still continuing, and the primary purpose was to enable the restrained property to be used for the satisfaction of a pecuniary penalty order. The submission was that if there had been an application for exclusion made by the respondent then the court would have to determine three things, being first, if the applicant had a lawful interest in the property, second, if the property was tainted property and, third, if the property would be required to satisfy a pecuniary penalty order or restitution order. The submission, as best I can understand it, is that the potential purpose of satisfying a pecuniary penalty order remains in existence, and pursuant to s 41 of the Act which states “the property vests in the Minister subject to every mortgage, charge or encumbrance to which it was subject immediately before automatic forfeiture occurred” that the “charge or encumbrance” is the third named purpose for which Osborn J restrained the property in question.
I am unable to accept this submission. There was no application for exclusion, all that has been put forward is entirely hypothetical about what a court may have had to do if the application had been made, and the unalterable fact is the application was not made. In this area the law is unequivocal, that upon the automatic forfeiture of the property in question, the restraining order ceases to have any application and is a spent order[4]. To hold that one of the purposes of the restraining order remains extant whilst the other purposes are extinguished, and somehow binds subsequent decision-makers would be a nonsensical decision, and is not a reasonable interpretation of the clear words used in the statute. It is also contrary to established law.
[4]DPP v Hai Minh Nguyen; DPP v Duncan (2009) 23 VR 66.
During the plea hearing conducted before me, counsel acting on behalf of the applicant submitted, correctly, that the property having been automatically forfeited, that property could not then be utilised in the calculation of any pecuniary penalty order. It was also submitted by the respondent that the automatic forfeiture of the $180,000.00 was a relevant factor in mitigation for the purposes of sentencing, that was accepted, and the matter of the $180,000.00 was taken into account for the purposes of sentence.
The respondent submitted in his outline of submissions at point 12 that “in accordance with s 68(3) of the Act, the property that has now been forfeited must not be included in any assessment of benefits and, accordingly the amount of $180,000.00 should be deducted from the Applicant’s claimed amount of $266,748.00 leaving a balance to be paid by the Respondent”. There are two anti-doubling up provisions, the first in s 67(1) which states that the value of benefits derived by a defendant must not include any property forfeited to the Minister under this Act and, secondly, s 68(3) which states that in an assessment of benefits derived by a person they “must not include any property which has been forfeited to the Minister under this Act”. The $180,000.00 that is the subject of this argument is part of the property that has been forfeited to the Minister as a result of automatic forfeiture.
There has been no inclusion of the forfeited property in the calculations, and that has now been conceded by counsel appearing for the respondent, and in reality the basis of the respondent’s submission falls within his alternative submission contained at paragraph 13 of the outline of submissions, which reads “alternatively the amount of $180,000.00 ought to be excluded from the pecuniary penalty Order as a matter of fairness in order to prevent an abuse of process. It is respectfully submitted that the Honourable Court possesses inherent jurisdiction and has the power to take appropriate action to prevent injustice. It is respectfully submitted that it would be unjust to include the $180,000.00 in the making of any Pecuniary Penalty Order”.
Counsel provided, in support of his submissions, a number of authorities related to the principles of abuse of process, and I have read those authorities. The principles applicable to abuse of process were comprehensively reviewed by Buddin J in R v Smith.[5]
[5] (No 1) [2011] NSWSC 725 paragraphs 6-13.
The relevant legal principles
6.It is convenient to make reference to the general principles which are to be applied when a court is requested to grant a permanent stay.
7.In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Mason CJ said:
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton , per Wilson J.[at 34]
8. Brennan J said:
The power which was acknowledged to exist in Barton is a power which has a dual purpose: "to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice". One purpose of the power is to ensure a fair trial, the other to prevent an abuse of process. A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party. ...
Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. ...
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. [at 46-47, 49]9. In Williams v Spautz[1992] HCA 34; (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ in a joint judgment, said:
It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. ...
The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair". This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.
However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.
If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. In the United States, great weight has been given to these factors.
These factors have considerable force. There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances. ...It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is "a heavy one "... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances . [at pp 518-19, 529] [footnotes omitted] [emphasis added]
10. In Walton v Gardiner(1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ in a joint judgment said:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. ...
In Jago v. District Court of New South Wales, at least three of the five members of the Court clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process". Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour:
"public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." ...
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice . [at pp 392-6] [footnotes omitted] [emphasis added]11. In Subramaniam v R[2004] HCA 51; (2004) 211 ALR 1, the High Court said:
In Jago v District Court (NSW) Brennan J cautioned against too ready a disposition to grant stays :
"The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence . The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind."
It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. ...
Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment" [at paras 25-27] [footnotes omitted] [emphasis added]12. In PNJ v R [2009] HCA 6; (2009) 252 ALR 612, the High Court said:
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a)the invoking of a court's processes for an illegitimate or collateral purpose;
(b)the use of the court's procedures would be unjustifiably oppressive to a party; or
(c)the use of the court's procedures would bring the administration of justice into disrepute. [at para 3]
13.In Dupas v The Queen[2010] HCA 20; (2010) 241 CLR 237 the High Court said:
In Glennon, in describing cases in which a permanent stay will be ordered as extreme, Mason CJ and Toohey J refer back to a passage in Jago v District Court (NSW) ) containing a reference to R v McLoughlin; Ex parte Director of Prosecutions. There, the Full Court of the Supreme Court of Queensland recognized that for a court to grant a permanent stay of criminal proceedings is a rare occurrence, a drastic remedy to be applied in exceptional cases which might arise if there had been some conduct on the part of a prosecuting authority shown to result in prejudice to an accused in obtaining a fair trial.
...
Characterising a case as extreme or singular is to recognize the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon , the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."
...
The cases reviewed by Buddin J arise from the criminal jurisdiction, as do the majority of the cases submitted and relied upon by the respondent in this matter. The matter of Herron v McGregor[6], is a decision relating to civil procedures in which McHugh J made clear the position in respect of decisions of civil courts and tribunals when he stated[7], “the right of a civil court to stay proceedings on the ground that they are an abuse of its process is beyond controversy” and then dealt with the issue of the criminal jurisdiction at a later point stating “however, the reasoning expressed in the decisions of the highest courts in England, Canada and New Zealand seems equally applicable to the administration of justice in New South Wales. In the absence of a contrary decision of the High Court on the point I think that this Court, as a superior court of justice, has inherent power to prevent an abuse of procedure in instituting or continuing proceedings in both civil and criminal cases.
[6](1986) 6 NSWLR 246.
[7]At page 250.
McHugh J’s judgment, when he states “nevertheless, in my opinion the courts have power to stay an action, though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff or prosecutor is oppressive to the defendant or accused person”, as do the cases reviewed by Buddin J, demonstrate that for the grant of a permanent stay there needs to be some demonstrable oppression, oppressive behaviour or conduct, that can be attributed to the applicants, plaintiffs or prosecutors. It may be a matter of failure to ensure that there is full disclosure of materials, or that the delay in instituting proceedings is of such length as to be oppressive, or an inability to properly contest or dispute factual matters due to delayed complaint. In all cases the basis of an application is either about the actions or inactions of the person seeking to place the person on trial, be it in either criminal or civil courts.
That is, as I have understood it, the basis of the application in this case, that the prosecution are being oppressive in seeking the full pecuniary penalty when through inaction on the part of the respondent’s solicitors, but no fault of his own, the applicant has lost $180,000.00 that would otherwise have been available and utilised to pay the potential PPO.
The other category of permanent stay is one of unfairness, in that there has been an occurrence that has rendered the trial unfair and is incapable of being cured by directions by a trial judge. That may relate to matters such as extensive pre-trial publicity, or notoriety of the accused or the circumstances of the offending, and in a trial without a jury may have little application. As I have followed the submission it seems to also include an argument of unfairness, in that it is argued that the applicant has already received $180,000.00 to which it was not really entitled and it would be unfair to not give the respondent the benefit of that $180,000.00.
The test invoked for an order for a permanent stay is a stringent one, it lies upon the respondent, it is referred to as “a heavy one” and the respondent must demonstrate that it is a “most exceptional” case, in which no other order can relieve against its unfair consequences.
Here the argument is a vague and tenuous argument that it “isn’t fair” that he will not receive a credit for the $180,000.00 already forfeited under automatic forfeiture to the crown. That, in my view, a submission based on the “unfairness” argument, is not a category of abuse of process that is open to the respondent on the material in this case. The respondent has had all necessary opportunities afforded to him to seek to have the $180,000.00 equity in his home excluded at the appropriate time and he has not taken advantage of those opportunities, for reasons I have already outlined. There has been no misbehaviour on the part of the applicants, no delay in the instituting of processes by them, no abuse or manipulation of the legislation and nothing that demonstrates any form of improper, illegitimate or collateral purpose to the application. Further, I take the view that the application for a PPO is not likely to bring the administration of justice into disrepute.
In respect to the argument that it would be oppressive to permit the application to proceed, it is my view that for the argument to succeed the respondent would have to demonstrate that he would have been successful in having the S180,000.00 excluded from the automatic forfeiture that occurs at the conclusion of 60 days, after a conviction for a schedule 2 offence, as was the case here.
I am concerned that the defence to this application for a PPO has become, by way of this argument, a de facto application for exclusion from automatic forfeiture. That is most unfortunate, as the legislature has determined that a failure to make application within 60 days of a conviction for a schedule 2 offence shall result in automatic forfeiture of the restrained property, if that is one of the purposes for the property has been restrained. Whilst the legislation is often referred to as draconian, it remains the law, and the consequences of such law should not be easily avoided by way of advancing an argument of “unfairness”. Despite the misgivings that I have in respect to this matter, I will consider whether the property would have been excluded if the application had been made within the prescribed time limits. Council for the respondent agrees that if he would have been unable to persuade a court that the amount of $180,000.00 should have been excluded from automatic forfeiture, that there can be no argument that it is either unfair or oppressive to make a PPO without granting any credit for the $180,000.00.
The respondent submitted that he was taken by surprise that the applicant would be arguing that the property was “tainted property” within the definition of the legislation, as there has been no mention of that matter in the outline of the applicant’s submissions. The respondent asked for time to consider the matter which was granted. Upon resumption, the respondent made no application to adjourn the proceedings to further consider the matter. The unfairness issue had only been raised in the respondent’s submissions in reply, and as there had been no further submissions provided to the Court it was unsurprising that there were no submissions relating to the property being “tainted property”.
In this Court, counsel for the applicant submitted, in my view correctly, that pursuant to s 22 of the Confiscation Act 1997 a person making an application for exclusion, in this case the respondent, would have had to successfully establish the matters set out in s 22 which state:
On an application made under s 20 where a restraining order has been made in relation to a schedule 2 offence for the purposes of automatic forfeiture –
(a)the Court may make an order excluding the applicant’s interest in a property from the operation of the restraining order if the Court is satisfied that –
(i)the property in which the applicant claims an interest was lawfully acquired by the applicant; and
(ii)the property is not tainted property; and
(ii)(a)the property is not derived property; and
(iii)the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act1991.
Counsel for the applicant further submitted that the property under consideration would have been classified as “tainted property”, within the meaning of the Act, if any application for exclusion had been made by the respondent. The respondent disputes that the property located at 49 Linda Avenue, Box Hill North was, or could be described as, tainted property.
Tainted property is defined in s 3 of the Act in the following terms:
Tainted property, in relation to an offence, means property that –
(a)was used, or was intended by the defendant to be used in, or in connection with, the commission of the offence; or
(b)was derived or realised or substantially derived or realised directly or indirectly from property referred to in paragraph (a) …
During the plea hearing, the Crown put before the Court an opening, which in relation to these aspects, was not disputed. The opening contained the following paragraphs:
32.Over the course of the drug trafficking operations, methylamphetamine, drug money, drug manufacturing precursors and drug related paraphernalia were stored at various locations.
33.Results of various police searches are as follows:
1.Rizzo’s residence at 49 Linda Avenue, Box Hill North - drugs, drug money and drug dealing paraphernalia (with references to paragraphs of Mansour’s statement, his co-offender) and particular items located by police on 5 June 2007, being the time of arrest, with reference to various police officers and their statements and including the following:
·a plastic bag containing beige coloured powder analysed to be 269.4 grams of dimethylamphetamine at 8% purity and methylamphetamine at 1.8% purity and MDMA at less than 1% purity (located in the master bedroom),
·a plastic wrap containing white powder analysed to be 8.7 grams of dimethylamphetamine at 50% purity and methylamphetamine at 0.4% purity (located in the study),
·$2,260 cash found on Rizzo at the time of arrest (of which $1,200 came from cash money paid by the covert police officer for the purchase of drugs on May 23rd, 25th and 31st 2007),
·$110,000 cash found in the master bedroom (of which $32,300 came from cash money paid by the covert police officer for the purchase of drugs on 25th and 29th May 2007),
·$70,700 cash secreted behind a cupboard in the laundry (of which $44,900 came from cash money paid by the covert police operative for the purchase of drugs on 25th, 30th and 31st May 2007),
·$5,600 cash secreted in a cardboard box in the cellar, a Tellermate cash counter found in the study,
·drug preparation items such as vacuum seal machine, cutting agents, scales and gloves found in various parts of the house,
·multiple mobile telephones,
·assorted documents including hand drawings of glassware, notes concerning “accounts” and the “Raymond Weil” hire car agreements and computers.
None of this material was disputed as being located in the disputed premises of the respondent, but the submission was that none of that demonstrates when considered either in isolation or together, that the property was used in connection with the crime or crimes of which he was convicted. The respondent pleaded guilty to two counts of trafficking a commercial quantity of drugs, one count relating to MDMA or ecstasy as it is more commonly known, the other being cocaine, a third count of trafficking a large commercial quantity of methylamphetamine, and money laundering relating to the sum of $4.2 million. The respondent had the responsibility of maintaining those financial records and accounts on behalf of Antonius Mokbel, whilst he was an escapee in Greece. Money was dispatched to him in Greece, and people were paid and drugs received over the period of the various charges.
As was indicated the disputed premises when raided by the police disgorged all the paraphernalia and materials you would expect to find in the premises of a large scale drug trafficker. Various amounts of cash hidden in different parts of the property, some of them quite large sums, together with the fact that quite significant portions of which cash can be directly traced to money provided by police to purchase drugs. There were also chemicals used for manufacture, smaller amounts of drugs, the financial records maintained by the respondent as well as records for hire cars used for the purposes of trafficking the drugs, mobile phone agreements relating to the false phones used in the business, and other material all indicative of, and essential to the business of the respondent as a drug trafficker. The premises of the respondent were used very significantly and for a lengthy period for the offence of trafficking in these different drugs. In my view it is unarguable that the property was not tainted property, in that it was obviously and demonstrably used in connection with the commission of the offences, for which the respondent has been sentenced.
At the conclusion of the hearing the matter was adjourned for determination, and as all parties were aware, a matter had been heard in the Court of Appeal relating to what constituted “tainted property”[8], a matter which had not previously been considered by the Court. I determined that I would await the delivery of the judgment in that matter before delivering my decision in the case to ensure that it was not in disconformity with that decision.
[8]Chalmers v The Queen 215 A Crim R 275.
The decision was delivered in December of 2011, and having read the judgement I am confirmed in the view I have taken as to the use of the premises, in that this is a case in which there is in my opinion overwhelming evidence of the use of the premises for the commission of the offence. In Chalmers, Maxwell P, Redlich J and Kyrou AJA, found that the determination of whether property is tainted is a matter of degree, and it is really a factual issue as to whether the use of a property falls into the category of use in the commission of an offence, or whether it is really just a coincidental use, such as a killing, having occurred at the premises, where both the deceased and the accused lived, as but one example. In Chalmers many other examples were given, and the Court referred with approval to the decision of the South Australian Court of Appeal in DPP v George[9] where Doyle CJ, held that the expression “Used…in connection with the commission of an offence”:
… involved practical considerations and matters of degree, such that each case would turn on its own facts. His Honour held that the composite expression did not require a causal connection between the property and the offence. Nor was it necessary that the property be something which was essential or necessary for, or made a unique contribution to, the commission of the offence.[10]
[9](2008)102 SASR246 at [57] and [63].
[10]Chalmers v The Queen at [87].
In this case the respondent used the premises to store and hide most of his illegally obtained goods, drugs, cash, drug making and trafficking paraphernalia, and in line with the authorities to which I have referred, I am satisfied that the property would have been found to be tainted property within the meaning of the Act.
The respondent currently has no assets and no employment, as he is currently serving a custodial sentence imposed by the Court of Appeal in May 2011 of 15 years and 9 months’ imprisonment with a minimum of 10 years and 6 months before being eligible for parole. The respondent was aged 27 to 28 at the time of the offending, 30 at the time of initial sentencing, approximately 32 at the time of resentencing and is now approximately 36 years of age. He has been in custody since August 2008 and has only approximately another five years to serve before he becomes eligible for parole. He would be approximately 41 at that time. It is unknown if he will be granted parole, but regardless, he will not be an old man upon his release from imprisonment. In light of all of the material presented, I am of the view that the Pecuniary Penalty Order sought by the applicant against the respondent should be granted in the sum of $266,748.00.
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