Rizzo v DPP
[2009] VSC 101
•25 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 1578 of 2007
| IN THE MATTER OF BARTHOLOMEW RIZZO |
| and |
| IN THE MATTER OF AN APPLICATION by the Director of Public Prosecutions for Victoria |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2009 | |
DATE OF JUDGMENT: | 25 March 2009 | |
CASE MAY BE CITED AS: | Rizzo v DPP | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 101 | |
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Crimes – Confiscation exclusion applications – date of conviction – automatic forfeiture – choice of procedures
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APPEARANCES: | Counsel | Solicitors |
| For 24 Treng Ganu Pty Ltd and Vitina Rizzo | Mr A S Dickenson | Lobb & Kerr |
| For the Director of Public Prosecutions | Ms A Duran | Office of Public Prosecutions |
HIS HONOUR:
The applications
There are before me two applications for exclusion orders under the Confiscation Act 1997 (“the Act”). The first in time is brought by Twenty Fourth Trengganu Pty Ltd (“the company”) by notice of application filed on 31 October 2008. The second in time is that brought by Vitina Rizzo, by a notice of application filed 9 December 2008.
The first application concerns a truck registered to the company, which was seized by police from premises in which the offender, Bartholomew Rizzo, had an interest situated at 49 Linda Avenue, Box Hill North. The company alleges that it was the owner of the vehicle and seeks to have it excluded from the restraining order that was made. Vitina Rizzo claims an interest in the property at 49 Linda Avenue, Box Hill North.
The truck and property were made subject to a restraining order under the Act on 7 June 2007.
Critical issue – date of conviction
The matter came before me in the Practice Court. It became apparent that to facilitate the management of the applications it was necessary at the outset that a decision be made on a pivotal question, namely, the date when the offender Bartholomew Rizzo was convicted. The DPP takes the position that the conviction occurred on 1 August 2008. The applicants for exclusion orders take the position that it occurred on the day when Bartholomew Rizzo was sentenced, 9 February 2009. In the alternative they argue that it occurred on 3 November 2008, the day on which his plea was heard following upon the putting of the allocutus to him.
The issue as to the date of conviction is significant for several reasons. It is common ground that the convictions are Schedule 2 convictions and, therefore, the automatic forfeiture regime of s.35 of the Act is applicable. Section 35 of the Act has the effect in this case that the date 60 days after the conviction date is the date upon which an automatic forfeiture could occur of the assets in question.[1]
[1]Section 35 – unless an exclusion order has been made prior to the conviction (s.35(1)(c)), not the present case, or if an application has been made for an exclusion order under s.22 within 60 days of the conviction. (s 35(2)).
A restraining order having previously been made, a person seeking an exclusion order is required to follow different procedures depending upon whether that application is made prior to or after automatic forfeiture under s.35. The applicants’ primary position is that the applications for exclusion orders were made after the restraining order but prior to the conviction of the offender and, therefore, prior to the automatic forfeiture occurring. They can be made pursuant to s 20. Under s 35(2) such applications can proceed if brought prior to the expiration of 60 days from the date of conviction. The procedure and principles to be applied in that situation appear to be those set out in ss 20 and 22 of the Act. If, however, the applications for exclusion orders were not made before conviction, or within 60 days of conviction, the property would be forfeited and the applicants would have to apply under ss 51 and 52 of the Act in circumstances where the property would be treated as having been forfeited.
The DPP has taken the position that applications cannot be made under s 20 because the conviction occurred on 1 August 2008, and the applications for exclusion of the relevant property were not made before the conviction or within 60 days of the conviction – that is on or prior to 29 September 2008. The DPP argues that the application must be made under s 51 and leave must be sought under s 51(3) because the 60 day period has passed.
Basis of applications
Both applications when first filed were expressed to be applications for exclusion from restraining orders under s 20. They did not include as an alternative an application for an exclusion order under ss 51 and 52.
Other issues
Another issue raised by the DPP is whether a 30 day time limit applied in these cases to the making of exclusion order applications under s 20. The DPP takes the position that it does and that leave is required for the applications under s 20(1B). The applicants argue that notice of the restraining order was required under s 19 but was not given to the applicants and, therefore, s 20(1A)(a) (which sets out the relevant time limit) did not apply. As a result there was no 30 day limit either from the making of the order or giving of notice within which such applications had to be made.
As to the notice point, the DPP argues that the notice provisions (ss 19 and 20) are satisfied by constructive notice in the form of knowledge gained from other sources. I do not accept this analysis. The Act does not provide for constructive notice. It in fact requires written notice and specifies a form of substituted service.[2] These provisions are critical to the process that has the potential to deprive innocent people of their property. In taking this position the DPP may be said to be advocating a double standard – strict compliance by those affected by restraining orders but no strict compliance by the party giving notice and relying upon provisions directed to depriving people of their property. [3]
[2]Section 19.
[3]A possible question worthy of consideration is whether the position taken is consistent with the duties imposed by s 22(1)(ba) and s 24(a) of the Public Prosecution Act 1996. Those provisions are consistent with the Parliament expecting the DPP to exercise the powers under the Act in a manner consistent with the traditional role of the prosecutor as “Minister of Justice”. See discussion in Tahche v Abboud [2002] VSC 42 at [94] and cases there cited; also B.K. Grossman, “Disclosure by the Prosecution: Reconciling duty and discretion”(1987-1988) 30 Crim.L.Q. 346, 347-9.
Similar issues arise in relation to s 51(4) which requires an applicant, with notice of a restraining order application or the order itself, to seek leave. The applicants again argue that the sub-section did not apply; for they did not receive notice of the restraining order application or the order itself. Similar arguments arise. I do not accept the DPP’s construction.
Adjournment of original applications
These issues having been identified, the matter was adjourned to give the applicants the opportunity to consider their position and decide whether to seek leave to amend their applications.
Adjourned hearing
When the matter returned on the adjourned date, the applicants sought leave to amend their notices of application as follows:
(a)In the case of the company application, by adding references to ss 21, 22, 51 and 52 to the reference to s 20 of the Act.
(b)In the case of the application of Vitina Rizzo, by amending the references to the sections to delete the references to ss 49 and 50 and to add references to ss 21, 51 and 52 in addition to the reference to s 20.
They also sought leave to amend the content of the particulars of claims provided.
At the adjourned hearing, the parties then made submissions on the initial question to be determined – the date of conviction of Bartholomew Rizzo.
The date of conviction
In determining the date of his conviction, it is necessary to consider the events which are relied upon by the parties to support their positions.
As noted above, on 7 June 2007, the restraining order was made in relation to property in which Bartholomew Rizzo was alleged to have an interest including the abovementioned property.
On 1 August 2008 a hearing occurred before King J in respect of the presentment filed against seven individuals including Bartholomew Rizzo in respect of some substantial drug offences. In the course of this hearing, the defendants were arraigned. This process began with a Mr Benedetti who was followed by Mr Rizzo. They were both arraigned and pleaded guilty. In Mr Rizzo’s case he pleaded guilty to trafficking in a drug of dependence not less than a commercial quantity (Count 1), trafficking in a drug of dependence not less than a commercial quantity (two counts – Counts 2 and 4) and knowingly dealing with proceeds of crime (one count – Count 3). The drug trafficking counts concerned Schedule 2 offences which on conviction could automatically result in automatic forfeiture of assets subject to the restraining order. Prior to the arraignment and plea, her Honour said that if someone was going to plead, she preferred that they be arraigned. She then indicated that she was not going to set a plea date unless she had a “confirmed plea”. When the abovementioned defendants indicated a preparedness to do that, her Honour certified the two presentments as having been filed and they were then arraigned and pleaded.
Ms Duran submitted that her Honour’s requirement of a confirmed plea was an indication that she was seeking a situation in which the plea of guilty could be accepted and conviction found. I do not accept that analysis. Plainly what her Honour was doing at that time was managing the proceedings and, in the course of that, was seeking to formalise the pre‑sentencing process and ensuring that at that point the two defendants who had indicated they would plead had formerly pleaded to the charges made after arraignment
Her Honour said she would not hear the Crown opening. The allocutus was not put. Having received the pleas, her Honour went on to deal with the balance of those charged who had chosen to go to trial. The bulk of the proceeding appears to have focussed principally on that aspect and issues to be dealt with in the trial.
On the day when the two defendants formally pleaded guilty, they were in custody. Her Honour did not make any order remanding them for sentence. There was, however, a discussion about a date for the plea hearing for Mr Rizzo. After much discussion, 27 October appears to have been chosen.
The hearing of the plea did not, however, take place until 3 November 2008. In the hearing on that day, the allocutus was administered. His counsel, Mr Croucher, then formally announced his appearance on behalf of Mr Rizzo. The matter was opened by the prosecutor at some length and evidence called.
The Director of Public Prosecutions seeks to place some reliance on the discussion that occurred about Mr Rizzo’s application for an exclusion order made pursuant to s 20.
The prosecutor submitted that the application was made out of time. The prosecutor had taken the position that automatic forfeiture occurred 60 days from the time of the entry of the formal plea of guilty. Asked for his views, Mr Croucher said that this was a difficult area and referred to recent decisions[4] concerned with the question about when a conviction occurred. Mr Croucher noted that the issue had been taken to the Court of Appeal and referred to these matters that had come initially before Judge McInerney, and on review to me, in which the conclusion had been reached that the conviction did not occur until the plea was heard and the judge had remanded each of the accused in custody for sentence, even though they had pleaded guilty at earlier times. King J suggested that the circumstances would have been unusual. Mr Croucher responded saying that the circumstances were fairly common. He referred to the case of McCoid which he said might be relied upon for the view that conviction did not occur until the plea of guilty had been formally accepted by the administering the allocutus, something which had happened that day in the hearing before her Honour. Mr Croucher, however, maintained the position that it was unclear when the conviction had occurred. He also referred to the ability under amendments to the Confiscation Act to seek extensions of time. There was then discussion about the operation of the Act and the opportunity, where there was automatic forfeiture, to apply within 60 days of conviction for an exclusion order. There was then a discussion of the width of the exclusion application - it apparently applied to everything seized. Her Honour asked what Mr Rizzo really wanted out of the property. Mr Croucher said that there was a pendant that was given to him by his grandfather who had since died, first communion chains and a few items like that. Counsel said he could specify them more particularly if that was desired by her Honour. He then said:
“But in respect of the principal thing, the house, he is not saying anything against that.”
[4]DPP v Nguyen and R v Duncan [2008] VSC 292.
There was then discussion between counsel and her Honour about personal items and the like with her Honour expressing the view that it was desirable to have discussions between the Crown and the defence to see if things could be resolved. Mr Croucher then said, as to the house, that there was a gift of $180,000 to finance it together with $250,000 which was lent by Vitina Rizzo. It was her house and she transferred it to him. He said they came to that arrangement. In later discussion it was revealed that in essence there had been a gift of $180,000 by Vitina Rizzo – by way of forgiveness of that amount of the purchase money. It would appear that it was this that Mr Croucher was conceding was subject to forfeiture. He argued that this loss of $180,000 which would follow was something that should be borne in mind when sentencing Mr Rizzo because it was not an ill‑gotten gain and was a substantial amount. Mr Croucher pointed out that Mr Rizzo’s grandmother had an exclusion application on foot in relation to the $250,000 loan.
Ms Duran for the DPP sought to impose some form of legal consequence for the applicants in the present applications from Mr Croucher’s submissions for Mr Rizzo. It was in essence put that his approach to the relevance of the loss of the $180,000 gift in losing the house indicated that he had accepted that automatic forfeiture had occurred and that her Honour proceeded on that basis. I do not accept that analysis. What his counsel said was consistent with the position that forfeiture would occur when conviction occurred; for counsel and her Honour proceeded in the plea hearing on the assumption that Mr Rizzo no longer sought to have it excluded and that it should therefore be treated as property that would be forfeited on conviction. In any event, it does not assist the DPP in fixing the time of conviction at 1 August 2008; for Mr Croucher would have been conceding that automatic forfeiture could occur within 60 days of 3 November 2008, because the allocutus had been put. That does not assist the DPP. Further, whatever position was taken by counsel for Mr Rizzo, it did not bind the applicants and did not affect the determination of the question of when he was convicted for the purpose of the applications of the company and Vitina Rizzo.
The plea hearing did not conclude on 3 November 2008 and resumed on 19 December 2008. When the plea hearing was adjourned, no orders were made as to the disposition of Mr Rizzo by her Honour. In the course of the plea hearing on that first day, counsel had dealt with matters such as the role of Mr Rizzo in the offending and had started to address the issue of his drug use and personal circumstances and their connection with the offending. He continued with that aspect on 19 December 2008. The plea hearing concluded on 19 December 2008 and the proceedings were adjourned to a date to be fixed in the following year. No orders again were made relating to the disposition of Mr Rizzo who was already in custody and remained so.
King J delivered her reasons for sentence on 9 February 2009. The DPP relies upon a passage from her Honour’s reason for sentence on 9 February 2009 to argue that her Honour was indicating that the forfeiture had already occurred and, therefore, conviction must have occurred.
“94.Your counsel submitted that I should take into account that as a result of your activity in this matter you have been financially penalised in that your grandmother gifted to you her interest in her home, and you took out a loan in respect of the balance. The property is of course forfeit and as a result you have lost $180,000 gift that your grandmother provided to you upon her entering into a nursing home. I have read an affidavit prepared by your grandmother, and I accept that is the correct situation, and will consider that matter when imposing sentence.”
Her Honour did not in fact use language that evidenced a decision that the property had been actually forfeited. What she said was “The property is of course forfeit”. That is an expression apt to describe the situation that the property was something not yet forfeited but to be given up as a consequence of the crime because Mr Rizzo had indicated he was not contesting its forfeiture. Again, in any event, it does not assist the DPP in arguing for a conviction date prior to 3 November 2008 when the plea hearing began; for it is consistent, if the DPP’s construction is correct, with her Honour having, on and between 3 November 2009 and 9 February 2009, taken the view that she would accept the plea and proceed on the basis that the defendant was guilty and convicted.
In my view, however, prior to that point in the proceedings, the evidence was equivocal as to when it might be concluded that her Honour had accepted the plea of guilty and found the accused guilty. It is therefore, I suggest, significant that in formally imposing the sentences on each of the counts, her Honour formally stated the words “You are convicted and sentenced” and went on to indicate the period of the sentence. This was at a point in the reasons for sentence where critical pronouncements had to be made and accordingly the choice of language used, I suggest, is particularly significant. The express language used was inconsistent with her Honour having, at any earlier point, accepted the plea of guilty and found the accused guilty and so convicted him.
I have come to the conclusion therefore that it was not until those above words were pronounced that there was a clear and unequivocal indication that the learned sentencing judge had accepted the plea of guilty and had found the accused guilty. It was at that point that he was convicted. Thus conviction occurred on 9 February 2009. If that analysis is incorrect, the earliest date at which any possible arguable indication that the plea had been accepted by her Honour and the defendant had been found guilty by her was 3 November 2008 when the plea hearing began on the basis that he had pleaded guilty when arraigned and the next step was taken of having the allocutus put to him, a procedure that depending on the circumstances, can give rise to the necessary unequivocal inference. In my view, it did not do so in those circumstances, but that appears to me to be the earliest arguable date that the DPP can identify.
In analysing the evidence and reaching these conclusions I have attempted to apply the law as I understand it and endeavoured to elucidate in my reasons in the matters R v Nguyen and R v Duncan[5]. Those matters are on appeal to the Court of Appeal. In those cases, the DPP sought to rely upon the plea of guilty, the putting of the allocutus and the adjournment of the proceedings to a later date for sentencing purposes.[6] The DPP did not seek to argue that conviction occurred when a plea of guilty was made after arraignment. In the present case the DPP is trying to take the date back further to the point where a plea of guilty is recorded on arraignment. If the DPP succeeds in those cases in obtaining a decision that conviction occurred when the allocutus was put, and that is applied in this case, it does not assist the DPP because it would make the date of conviction 3 November 2008. That does not assist the DPP’s argument because if conviction occurred on 3 November 2008 the applications for exclusion orders under s 20 can proceed under s 35(2) of the Act.
[5]Above.
[6]Ibid, [24].
The future of the application
In both applications, the applicants have lodged amended particulars in which they have expanded the particulars of the application, refer to the other application options and give more details and make consequential additions to reflect the alternatives provided by the other sections.
At this stage, the conclusion reached as to the date of conviction, if correct, supports the original reliance on s 20. The applicants, however, may wish to ensure that there is on the record an application under the other possible sections.
It is necessary, therefore, that I give the parties the opportunity to consider these reasons and to give them the opportunity to resolve the issue of amendments to the application. There may also be relevant costs issues. I will hear further submissions on those matters.