The Director of Public Prosecutions for Western Australia v Sokmas - [2018] WASC 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- SOKMAS [2018] WASC 269
CORAM:   VAUGHAN J
HEARD:   ON THE PAPERS
DELIVERED          :   31 AUGUST 2018
FILE NO/S:   CPCA 13 of 2011
BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
EFTO STEVE SOKMAS
First Objector
KAYLENE ANNE DROPULIC
Second Objector
SETH EFTO SOKMAS-DROPULIC by next friend KAYLENE ANNE DROPULIC
Third Objector
SAGE LAURENCE SOKMAS by next friend KAYLENE ANNE DROPULIC
Fourth Objector
SUNCORP-METWAY LTD
Fifth Objector
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objection

Catchwords:

Criminal property confiscation - Whether certain objections to the confiscation of property should be dismissed - Whether property 'crime-used' - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Objections to confiscation of property dismissed

Category: B

Representation:

Counsel:

Applicant	:	T Staples
First Objector	:	P Kelly
Second Objector	:	No appearance
Third Objector	:	No appearance
Fourth Objector	:	No appearance
Fifth Objector	:	No appearance
Respondent to the Objection	:	T Staples

Solicitors:

Applicant	:	The Director of Public Prosecutions for the State of Western Australia
First Objector	:	Go To Court Lawyers
Second Objector	:	No appearance
Third Objector	:	No appearance
Fourth Objector	:	No appearance
Fifth Objector	:	Mills Oakley
Respondent to the Objection	:	The Director of Public Prosecutions for the State of Western Australia

Case(s) referred to in decision(s):

BJF v The State of Western Australia [2011] WASC 163; (2011) 210 A Crim R 262
Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249
McLeod v The State of Western Australia [2015] WASC 48
Powell v The State of Western Australia [2014] WASC 435
Ranford v The State of Western Australia [2015] WASC 45
Sokmas v Howard [2013] WASC 399
Sokmas v Howard [2014] WASCA 181
Stribrny v The State of Western Australia [2015] WASC 396

VAUGHAN J:

Overview

This is a matter arising under the Criminal Property Confiscation Act 2000 (WA) (Act). It followed the making of a freezing order under s 43(8) of the Act on the basis that there were reasonable grounds for suspecting that particular property was 'crime-used'.
An application has been made by chamber summons dated 23 March 2018 to dismiss certain objections to the confiscation of frozen property - the frozen property being land at 151 Swan Street, Yokine (Swan Street property) of which the first objector, Efto Sokmas, is the registered proprietor. Consequential on the dismissal of the objections, a confiscation declaration is sought under s 30 of the Act as well as orders under s 82(5) of the Act providing for payment to the fifth objector, Suncorp-Metway Ltd, in respect of its monetary entitlements pursuant to a mortgage registered against the land.
On 20 July 2018 orders were made by consent which provided for the subsisting objections to be determined on the papers.
For the reasons that follow the remaining objections to the confiscation of the Swan Street property will be dismissed.

Factual and procedural background

The application was made by the Director of Public Prosecutions (DPP), described as the 'applicant' in these proceedings, and the State of Western Australia. The State is described as the 'respondent to the objectors'.
This is a civil proceeding.[1] I am required to make findings on the balance of probabilities.[2] For reasons I will come to the findings I now make are based on affidavit evidence relied on by the applicants and Mr Sokmas. That evidence included transcript as to which, for reasons I will come to, I may have regard to the sentencing transcript, but I will not have regard to it more generally.[3]
[1] Criminal Property Confiscation Act 2000 (WA) s 102(1).
[2] Criminal Property Confiscation Act 2000 (WA) s 102(2)(d).
[3] Criminal Property Confiscation Act 2000 (WA) s 107(b).
Mr Sokmas is the registered proprietor of land at 151 Swan Street, Yokine (legally described as Lot 18 on Diagram 24576, being the whole of the land contained in Certificate of Title Volume 1256 Folio 43).[4]
[4] Affidavit of Bruce Robert Maxwelll Wimbridge sworn 21 March 2018 (Wimbridge Affidavit) attachment 'MRMW-25'; Affidavit of Efto Steve Sokmas sworn 15 June 2016 (Sokmas Affidavit) par 9, attachment 'A'.
The Certificate of Title to the Swan Street property records that Suncorp-Metway Ltd holds a registered mortgage, Mortgage J019123, which encumbers the property.[5] Mr Sokmas' affidavit makes passing reference to the mortgage.[6] The applicants' written submissions acknowledge Suncorp-Metway Ltd's status as holder of the registered mortgage over the property.[7]
[5] Wimbridge Affidavit attachment 'BRMW-25'.
[6] Sokmas Affidavit pars 28, 44, 52, 53.
[7] Applicants' Submissions dated 23 March 2018 (Applicants' Submissions) pars 1(b), 48.
In his affidavit Mr Sokmas gave some details as to the Swan Street property. Mr Sokmas has lived at the property since he was born in 1969.[8] He became registered proprietor of the property in 1986 when it was transferred into Mr Sokmas' name by his father.[9] Mr Sokmas redeveloped the property during 1996 and 1997 by building three individual units on it.[10] As part of the redevelopment Mr Sokmas included a cellar in Unit 3 so as to have access to a well and bore.[11]
[8] Sokmas Affidavit par 11.
[9] Sokmas Affidavit par 12.
[10] Sokmas Affidavit pars 27 - 31.
[11] Sokmas Affidavit par 32.
While there are three individual units on the Swan Street property, the property was not subdivided.[12] The three units are on the one Certificate of Title.
[12] Sokmas Affidavit par 31.
Mr Sokmas lives in Unit 3 and has done so since the redevelopment.[13]
[13] Sokmas Affidavit par 33. (This is also the address Mr Sokmas gives as his address in the Sokmas Affidavit.)
Unit 1 has been rented since the redevelopment of the property.[14] Initially Mr Sokmas' mother lived in Unit 2, but following her death it too was rented.[15] Mr Sokmas gives uncontradicted evidence that at the 'time of the offence [as to which see below] my tenants had exclusive control over Units 1 and 2 of the Swan St Property'.[16]
[14] Sokmas Affidavit pars 34 - 35, 38 - 40, 60.
[15] Sokmas Affidavit pars 33, 36, 41 - 42, 60.
[16] Sokmas Affidavit par 60.
Mr Sokmas also gives evidence as to his de facto spouse and two minor children dependants.[17] At the time of the offending the children were aged approximately seven years and six months.[18] Mr Sokmas gives unchallenged evidence that neither his de facto spouse nor his children were aware of the circumstances of his offending.[19]
[17] Sokmas Affidavit pars 45 - 59.
[18] Sokmas Affidavit par 59.
[19] Sokmas Affidavit pars 58 - 59, 62.
On 31 March 2011 Mr Sokmas was charged with an offence said to be committed on 8 March 2011, namely, cultivating a prohibited plant, cannabis, with intent to sell or supply to another contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA).[20] The prosecution notice described the offence as having been committed at 'Yokine'.[21]
[20] Wimbridge Affidavit par 13, attachment 'BRMW-18'.
[21] Wimbridge Affidavit attachment 'BRMW-18'.
Mr Wimbridge's affidavit records that Mr Sokmas was convicted of that offence by Magistrate Bayly of the Magistrates Court of Western Australia at Perth on 26 September 2012.[22] That much is confirmed by the notation entered and certified on the prosecution notice; Mr Sokmas pleaded not guilty, was nevertheless convicted, and was fined $5,000 together with orders for costs and destruction of equipment and cannabis.[23] Accordingly, the fact of the conviction is proved satisfactorily.[24]
[22] Wimbridge Affidavit par 14.
[23] Wimbridge Affidavit attachment 'BRMW-18'.
[24] See Evidence Act 1906 (WA) s 47(1).
Mr Wimbridge's affidavit also attaches the transcript of the learned magistrate's reasons for decision.[25] The applicants sought to rely on the whole of that transcript as sentencing transcript.[26] I consider that only that part of the transcript which deals with sentencing is 'sentencing transcript' to which I may have regard under s 107(b) of the Act. That part of the transcript provides very little information as to the circumstances of the offence. Reading the permissible portion of the transcript I am able to identify only that the magistrate considered that it was a 'sophisticated arrangement' and that Mr Sokmas had a 'hidden cellar'.[27]
[25] Wimbridge Affidavit par 31, attachment 'BRMW-19'.
[26] Applicants' Submissions par 33.
[27] Wimbridge Affidavit page 62.
After disregarding the non-permissible portions of the transcript evidence, the non-hearsay materials as adduced by the applicants do not identify the precise place at which the offence was committed.
The applicants' omission is overcome by Mr Sokmas' affidavit. Mr Sokmas deposes that he was charged with cultivating a prohibited plant, namely cannabis, with intent to sell or supply in March 2011.[28] He then gives evidence that:
[28] Sokmas Affidavit par 3.
4.I was found guilty of the offence on 26 September 2012 after trial at Perth Magistrates Court.
5.I was found guilty as the Magistrate was not persuaded on the balance of probabilities that I did not intend to sell or supply the cannabis to another.
6.I appealed this conviction to the Supreme Court of Western Australia, the Court of Appeal and to the High Court of Australia.
7.The circumstances of the offence were that a hydroponic set up was found at the cellar of Unit 3/151 Swan St in Yokine, where there were 13 cannabis plants.
8.There were no cannabis plants or other hydroponic equipment found at either Unit 1 or Unit 2 of 151 Swan St in Yokine.
Accordingly, I accept that the offence under s 7(1)(a) of the Misuse of Drugs Act 1981 WA), as committed on 8 March 2011 and of which Mr Sokmas was convicted on 26 September 2012, occurred at Unit 3 of the Swan Street property - the property I have described more fully in par 7 above.
As Mr Sokmas recounted, various appeals against the conviction were prosecuted. All failed. Mr Sokmas first sought leave to appeal. An extension of time in which to do so was refused by Allanson J on 5 November 2013.[29] An appeal against that decision was dismissed by the Court of Appeal on 8 October 2014.[30] An order dismissing an application for special leave to appeal was made on 15 October 2015 by Kiefel and Keane JJ in the High Court of Australia.[31]
[29] Sokmas v Howard [2013] WASC 399.
[30] Sokmas v Howard [2014] WASCA 181.
[31] Wimbridge Affidavit par 31, attachment 'BRMW-24'.
The process under the Act commenced with the issue of a freezing notice, described as Freezing Notice WAPFN110024, on 9 March 2011.[32] The freezing notice was issued under s 34(2) of the Act as the basis for its issue was said to be that there were reasonable grounds for suspecting that the Swan Street property - which was identified in the notice - was 'crime-used' or 'crime-derived'.
[32] Wimbridge Affidavit attachment 'BRMW-1'.
The freezing notice was served on Mr Sokmas on 9 March 2011.[33] Others, including Suncorp-Metway Ltd, were later served with the freezing notice.[34] The freezing notice was filed in the Supreme Court of Western Australia on 21 March 2011.[35] Mr Sokmas filed an objection, by originating motion dated 17 March 2011 in these proceedings, to the confiscation of the property referred to in the freezing notice. No grounds were provided for his objection.
[33] Wimbridge Affidavit par 4.
[34] Wimbridge Affidavit par 4.
[35] Wimbridge Affidavit par 3.
On 7 December 2011, in these proceedings, a freezing order under s 43(8) of the Act was made in relation to the Swan Street property. The freezing order was made on the basis that there were reasonable grounds for suspecting that the property was crime-used. It was ordered that Mr Sokmas' originating motion would stand as his objection to the freezing order.
Mr Wimbridge's affidavit identifies the persons who were served with the freezing order; service was effected over the period February 2012 to December 2012.[36] There is nothing to suggest that there are interested parties who were not served.[37] A memorial as to the making of the order was lodged with the Registrar of Titles, and noted on the Certificate of Title to the property, on 7 February 2012.[38]
[36] Wimbridge Affidavit par 8.
[37] Cf Criminal Property Confiscation Act 2000 (WA) s 46(1), (4).
[38] Wimbridge Affidavit attachment 'BRMW-25'.
The freezing notice was cancelled on 15 January 2015.[39] No doubt that was because it had effectively been replaced by the freezing order of 7 December 2011.
[39] Wimbridge Affidavit attachment 'BRMW-6'.
Following a number of adjournments Mr Sokmas' affidavit was filed with the court on 16 June 2016.
On 19 August 2016 Mr Sokmas' de facto partner was added as a party to the action. So too, by their mother as their next friends, were his children. They were respectively designated as the second, third and fourth objectors. Given the expiration of the time for lodging an objection under s 79(2)(a) of the Act, an order was made extending the time for them to file an objection pursuant to s 79(2)(b). The court file does not reveal a specific document of objection. It appears that the parties proceeded on the basis that the order would stand as the objection.
It is not necessary to say more about the position of Mr Sokmas' de facto partner and his children as objectors. On 25 May 2018, by consent, the objection of the second objector was dismissed with no order as to costs. On 20 July 2018, again by consent, the objections of the third and fourth objectors were also dismissed with no order as to costs.
By notice of motion dated 28 July 2017 Suncorp-Metway Ltd sought leave under s 79(2)(b) of the Act to file an objection. Affidavits were filed in support of that application. Suncorp-Metway Ltd relied on its status as registered mortgagee in relation to the Swan Street property. The loan documentation and mortgage were adduced in evidence.[40] As at 17 July 2017 the amount secured by the mortgage was $406,007.82.[41] Attachments to the affidavits relied on by Suncorp‑Metway Ltd reveal that the application was prompted by correspondence on the part of the office of the DPP.
Suncorp-Metway Ltd was granted leave to object, and was designated as the fifth objector, by orders of the court made on 16 October 2017. It was ordered that the notice of motion and the supporting affidavits stand as the objection.

Determination on the papers
[40] Affidavit of John Kenneth Pascoe sworn 17 July 2017 (Pascoe Affidavit) attachments 'JP-02', 'JP-03'.
[41] Pascoe Affidavit par 19.

The application was made by a chamber summons dated 23 March 2018. It was supported by an affidavit of Bruce Wimbridge sworn 21 March 2018 and submissions dated 23 March 2018. Those materials were served on, among others, Mr Sokmas (by his solicitors Go To Court Lawyers) and Suncorp-Metway Ltd (by its solicitors Mills Oakley) on 28 March 2018.[42]
[42] See Affidavits of Service of Bruce Robert Maxwell Wimbridge sworn 5 April 2018.
In broad terms, the application sought orders, among others, that:
(1)the objections of Mr Sokmas and Suncorp-Metway Ltd to the confiscation of the frozen property be dismissed;
(2)pursuant to s 82(4) and s 84(5) of the Act, when the Swan Street property is sold, Suncorp-Metway Ltd be paid the amount due and owing to it under its registered mortgage; and
(3)pursuant to s 30(2) of the Act, the court declare that on the dismissal of the objections the Swan Street property has been confiscated to the State of Western Australia.
By letter dated 21 May 2018, a copy of which was provided to the court, the solicitors for Suncorp-Metway Ltd informed the DPP that Suncorp-Metway Ltd did not oppose the orders sought provided that they did not vary from those set out in the chamber summons.
On the first return date, 25 May 2018, there was an appearance for Mr Sokmas though counsel. Orders were made that any affidavits to be relied on were to be filed and served by 13 July 2018. The matter was otherwise adjourned to 20 July 2018.
On 20 July 2018 Mr Sokmas again appeared by counsel. Counsel for Mr Sokmas informed the court that he had not been in contact with Mr Sokmas for some time. However, counsel for Mr Sokmas did not oppose orders that provided for:
(1)specification of the affidavits to be relied on for determination of the application - these to include the affidavit of Mr Sokmas sworn 15 June 2016 and the affidavit of Mr Wimbridge sworn 21 March 2018;
(2)Mr Sokmas to file and serve an outline of submissions by 3 August 2018; and
(3)the objections to be dealt with on the papers unless the court otherwise ordered.
As counsel for Mr Sokmas had not heard from his client an order was made giving Mr Sokmas liberty to apply on 48 hours' notice. The intention of that order was that Mr Sokmas' legal representative could make contact with him and arrange for the matter to be re-listed if, having taken instructions, it was thought necessary or desirable to adduce further evidence or to proceed with an oral hearing.
Mr Sokmas did not seek that the matter be re-listed.
Submissions were not filed for Mr Sokmas by 3 August 2018 or at all. My associate made contact with counsel for Mr Sokmas by email on 6, 9 and 14 August 2018 seeking Mr Sokmas’ submissions. The 14 August 2018 email informed Mr Sokmas' counsel that if submissions were not received by 4.00 pm on 15 August 2018 I would proceed to prepare reasons for determination. Mr Sokmas' counsel contacted my associate by telephone on 15 August 2018. My associate was informed that counsel had been in contact with Mr Sokmas, would be meeting with him in the next two days, and, depending on the outcome of the meeting, it may be necessary to seek liberty to apply.
However, despite what was said in that telephone conversation, there was no request on the part of Mr Sokmas that the matter be relisted for further directions. Nor were submissions filed on behalf of Mr Sokmas.
My associate then sent further email correspondence to counsel for

Mr Sokmas. On 21 August 2018 my associate sought that counsel inform the court whether Mr Sokmas intended on filing responsive submissions, and, if so, when. No response having been received, a further email was sent on 24 August 2018.
The 24 August 2018 email stated:
I refer to the above matter and my previous email dated Tuesday, 21 August 2018.
As discussed in our telephone conversation on Wednesday, 15 August 2018, you were intending to meet with the first objector to obtain instructions last week. I have not received a response from you to date as to whether the first objector will be filing submissions in response to the application, nor whether the first objector seeks liberty to apply.
Please advise me by no later than 12 noon on Monday, 27 August 2018 as to whether the first objector will be filing submissions and when the Court can expect to receive such submissions. I note his Honour made orders on 20 July 2018 that the first objector’s submissions were to be filed and served by 3 August 2018, three weeks ago today.
In the event no response is received, his Honour is minded to consider the matters for determination on the papers (as contemplated by the orders made 20 July 2018), and deliver his reasons for decision next week.
No response has been received to the 24 August 2018 email. It also remains the case that Mr Sokmas' responsive submissions have not been received.
In the circumstances I have proceeded to determine the objections on the papers. However, the orders sought and obtained by the DPP and the State were limited to a determination of the subsisting objections on the papers. It would be inappropriate to proceed to determine the balance of the application. Accordingly, I do not intend to do so. However, for completeness I will touch upon the effect of the Act so far as s 30 and s 82(4) and (5) are concerned.

Legal framework

The Criminal Property Confiscation Act 2000 (WA) provides for the confiscation in certain circumstances of property used for criminal activity. Property of various kinds - sometimes referred to as being 'confiscable' for the purposes of the Act[43] - is confiscable to the extent provided by the Act.[44] This includes property used in or in connection with the commission of a confiscation offence - referred to as 'crime‑used property'.[45]
[43] Criminal Property Confiscation Act 2000 (WA) s 142.
[44] Criminal Property Confiscation Act 2000 (WA) s 4.
[45] Criminal Property Confiscation Act 2000 (WA) s 4(c).
The scheme for the confiscation of crime-used property under the Act was described by McLure P in Director of Public Prosecutions (WA) v White:
Crime-used property can be the subject of a freezing notice (s 34(2)) or a freezing order (s 43(8)) or be seized under s 33. The grounds for setting aside a freezing notice or freezing order are set out in s 82. Frozen crime-used property is automatically confiscated under s 7 if no objection to confiscation is filed or if an objection is unsuccessful.[46]
[46] Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 [50].
The term 'crime-used' in relation to property is defined in expansive terms in s 146 of the Act. Before referring to the text of s 146 mention should be made of the definition of the term 'property' in the Glossary to the Act. 'Property' includes real property of any description wherever situated and a legal or equitable interest in such property. Accordingly, the Swan Street property is 'property' for the purpose of the Act, as is Mr Sokmas' estate in that land as its registered proprietor.
Section 146(1)(a) of the Act provides that property is 'crime-used' if:
the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence.
The property is crime-used whether or not the property is also used, or intended or able to be used, for another purpose.[47]
[47] Criminal Property Confiscation Act 2000 (WA) s 146(2)(a).
Whether property has been 'used' within the meaning and for the purpose of the Act and its predecessors has sometimes been productive of difficulties and differences of opinion. 'Use' of property requires a deliberate act or omission,[48] although deliberate access over or presence on land in order to commit a confiscation offence may not be sufficient by itself.[49] The offender must exercise the control he or she has over the land and the involvement of the land must be more than merely incidental to the unlawful activity.[50] There must be a sufficiently proximate link between the act or omission on the property and the commission or facilitation of the commission of the confiscation offence - it is not enough if the relationship is tenuous and remote.[51]
[48] Director of Public Prosecutions (WA) v White [39].
[49] Director of Public Prosecutions (WA) v White [29].
[50] Director of Public Prosecutions (WA) v White [30].
[51] Director of Public Prosecutions (WA) v White [31], [33].
In Director of Public Prosecutions (WA) v White McLure P, with whom the other members of the Court of Appeal agreed, gave as an example of relevant 'use' the circumstance that:
a person in factual possession or control of land organises, facilitates or permits the sale (or supply, storage or preparation) of prohibited drugs on his or her land.[52]
[52] Director of Public Prosecutions (WA) v White [30].
The term 'confiscation offence' is defined in s 141 of the Act. The definition includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.[53] The offence of which Mr Sokmas was convicted was the cultivation of a prohibited plant, cannabis, with intent to sell or supply to another contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). That offence is punishable by imprisonment for more than two years.[54] Accordingly, the offence committed by Mr Sokmas, and for which he was convicted, was a confiscation offence. It does not matter that Mr Sokmas was merely fined and no sentence of imprisonment was entered.
[53] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a). Moreover, the offence is a confiscation offence even if the charge is dealt with by a court whose jurisdiction is limited to the imposition of sentences of imprisonment of less than two years: s 141(2).
[54] Misuse of Drugs Act 1981 (WA) s 34(2).
The court may make a freezing order in relation to property if there are reasonable grounds for suspecting that the property is crime used.[55] Following the making of a freezing order the Act provides for service of the order and a notice as to the effect of the order on interested parties.[56] Statutory declarations are required to identify any additional interested parties.[57] Where, as here, the freezing order concerns registrable real property it comes into force when a memorial of the making of the order is registered.[58] A person may file an objection to the confiscation of frozen property.[59] Where the person is served with the freezing order, any objection must ordinarily occur within 28 days after the day of service; however, the court may allow further time.[60] The State automatically becomes a party to the objection proceedings.[61]
[55] Criminal Property Confiscation Act 2000 (WA) s 43(8). See also s 44 (court's duties) and s 45 (court's powers).
[56] Criminal Property Confiscation Act 2000 (WA) s 46. The term 'interested party' is defined in the Glossary to the Act.
[57] Criminal Property Confiscation Act 2000 (WA) s 47.
[58] Criminal Property Confiscation Act 2000 (WA) s 48(1).
[59] Criminal Property Confiscation Act 2000 (WA) s 79(1).
[60] Criminal Property Confiscation Act 2000 (WA) s 79(2), (3).
[61] Criminal Property Confiscation Act 2000 (WA) s 80.
On hearing the objection to the confiscation of the frozen property, the court may set aside the freezing order to the extent permitted under s 82, s 83 or s 84 of the Act.[62] Section 82 is the applicable statutory provision where the property was frozen on the ground that it was crime-used. It provides in part:
[62] Criminal Property Confiscation Act 2000 (WA) s 81(1).
82.Crime-used property, release of
(1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime-used if the objector establishes that it is more likely than not that the property is not crime-used.
(2)If the court finds that the property is crime-used, or is not required to decide whether the property is crime-used, the court may make an order under subsection (3) or (4).
(3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that:
(a)the objector is the spouse, a de facto partner or a dependant of an owner of the property; and
(b)the objector is an innocent party, or is less than 18 years old; and
(c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed; and
(d)the objector was usually resident on the property at the time the objection was filed; and
(e)the objector has no other residence at the time of hearing the objection; and
(f)the objector would suffer undue hardship if the property is confiscated; and
(g)it is not practicable to make adequate provision for the objector by some other means.
(4)The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that:
(a)the objector is the owner of the property, or is one of 2 or more owners of the property; and
(b)the property is not effectively controlled by a person who made criminal use of the property; and
(c)the objector is an innocent party in relation to the property; and
(d)each other owner (if there are more than one) is an innocent party in relation to the property.
(5)If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector’s share of the property bears to the whole property.
There are a number of defined terms in s 82. The term 'innocent party' is defined in s 153 of the Act. It is not necessary to set the definition out in full. A person will not be an innocent party if he or she was in any way involved in the commission of the relevant confiscation offence[63] or if he or she knew or had reasonable grounds for suspecting that the confiscation offence was being committed, that the property was being used in connection with the commission of the offence or that the property was crime-used.[64]
[63] Criminal Property Confiscation Act 2000 (WA) s 153(1)(a).
[64] Criminal Property Confiscation Act 2000 (WA) s 153(1)(b), (2)(a), (3)(b).
The term 'owner' is defined in the Glossary to the Act. It means, in relation to property, a person who has a legal or equitable interest in the property. The definition of 'effective control' appears in s 156 of the Act. A person has effective control if he or she does not have the legal estate in the property but the property is directly or indirectly subject to the control of the person or is held for the ultimate benefit of the person.
As mentioned in the passage I have reproduced from Director of Public Prosecutions (WA) v White, the Act provides for the automatic confiscation of frozen crime-used property where there is no objection or where all objections are unsuccessful. Section 7 relevantly provides:
7.When frozen property is confiscated automatically
(1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.
(2)If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if:
(a)the objection, or each objection if there are more than one, is finally determined; and
(b)where the property is subject to a freezing notice ‑ the freezing notice is not cancelled or set aside; and
(c)where the property is subject to a freezing order ‑ the freezing order is not set aside.
The 'service cut off date' in relation to property frozen under a freezing order is the last day on which a copy of the freezing order was served on anyone.[65] In the present case that was 27 December 2012.[66] An objection was made before 28 days after the service cut off date. As such, confiscation can only occur under s 7(2) of the Act. This requires that the objections be finally determined (s 7(2)(a)) and there be an outcome that the freezing order not be set aside (s 7(2)(c)).
[65] Criminal Property Confiscation Act 2000 (WA) s 150.
[66] Wimbridge Affidavit par 8.
Registrable real property, such as the Swan Street property, confiscated under s 7 of the Act only vests absolutely in the State where: (1) the court declares under s 30 that the property has been confiscated; and (2) a memorial of the making of the declaration is registered.[67] The property vests free from all interests, including mortgages, and title in the property passes to the State.[68]
[67] Criminal Property Confiscation Act 2000 (WA) s 9(1).
[68] Criminal Property Confiscation Act 2000 (WA) s 9(2).
Section 30 of the Act is in mandatory terms. It provides:
30.Declarations of confiscation, applying for and making
(1)The DPP may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
Accordingly, the court is required to make a declaration that the property has been confiscated if the legislative requirements have been met. The only requirement before a declaration is made is that the court is satisfied that the statutory requirements have been met.[69]
[69] Ranford v The State of Western Australia [2015] WASC 45 [9], [19].

Disposition

There are two subsisting objections: the objection to confiscation by Mr Sokmas and the objection to confiscation by Suncorp-Metway Ltd. It is necessary to deal with them separately.

Mr Sokmas' objection to the confiscation of the Swan Street property

The only basis on which Mr Sokmas' objection may result in the court setting aside the freezing order is if the ground under s 82(1) of the Act is upheld, namely, if it is established that it is more likely than not that the Swan Street property is not crime-used.
There are a number of earlier decisions in this court where it has been accepted that, a person having been convicted of cultivating a prohibited plant (cannabis) on particular property with intent to sell or supply it to another, the relevant property is 'crime-used' property within the meaning and for the purpose of s 146 of the Act.[70]
[70] McLeod v The State of Western Australia [2015] WASC 48 [3]; Stribrny v The State of Western Australia [2015] WASC 396 [14].
Those prior decisions are not determinative. The question must be determined based on the facts in this case. However, when regard is had to the definition of 'crime-used' property in s 146(1)(a) of the Act, it is apparent that where the relevant confiscation offence is one of cultivation of a prohibited plant contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) there are likely to be substantial difficulties in contending that the place at which the offence was committed is not 'crime-used' property. That is the position in the present case.
Section 146(1)(a) renders property 'crime-used' if the property is or was used in the commission of the confiscation offence (it is not necessary for present purposes to consider the broader aspects of the definition). In the circumstances of the present case the relevant offence was not merely committed on the property, as might occur in the circumstance of some sales or supplies contrary to s 7(1)(b) of the Misuse of Drugs Act 1981 (WA). As the offence was one of cultivation - involving a hydroponic set up in a hidden cellar designed so as to have access to a well and bore - the Swan Street property itself facilitated and contributed to the commission of the offence.
In those circumstances I am satisfied that the Swan Street property was 'used', in the sense I discuss at pars 46 - 50 above, in the commission of Mr Sokmas' offence contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) of cultivating a prohibited plant (cannabis) with intent to sell or supply to another as committed on 8 March 2011. It follows that, subject to a specific argument advanced in Mr Sokmas' affidavit that I will now turn to, the Swan Street property is 'crime-used' within the definition of s 146(1)(a) of the Act and the ground under s 82(1) is not available to set aside the freezing order.
The tenor of Mr Sokmas' affidavit was to emphasise that the place at which the confiscation offence occurred was not the whole of the Swan Street property. To the contrary, it was said that the cultivation of the cannabis was restricted to the cellar of Unit 3. Units 1 and 2 were outside Mr Sokmas' control; tenants were in possession of those parts of the Swan Street property. And even as concerns Unit 3, the offending only occurred within the cellar, which was locked at all times.[71] Otherwise Unit 3 was used as normal residential premises for Mr Sokmas and his family.
[71] Sokmas Affidavit par 57.
The affidavit seems to suggest that it is contended that the only 'property' that is crime-used is the cellar to Unit 3, rather than the whole of the Swan Street property. Ought that contention be accepted?
A similar argument was advanced in BJF v The State of Western Australia.[72] Within a shed at residential premises in Lesmurdie one of the joint tenant owners of the property had an operational hydroponic cannabis cultivation system. Murray J addressed the question of whether the property was crime-used given that the offending behaviour (that of only one of the owners) was substantially restricted to, and secretively carried on in, the shed. His Honour concluded that the requirements of s 146(1)(a) were met. The property was used directly in the commission of the offence of cultivation of cannabis with intent to sell or supply. By reference to s 146(2)(a) it was said to matter not that the property was also used as the home of the family.[73]
[72] BJF v The State of Western Australia [2011] WASC 163; (2011) 210 A Crim R 262.
[73] BJF v The State of Western Australia [22].
Murray J observed:
… I think the term 'property' means that defined item of property, the real estate identified by reference to a Lot described in the certificate of title, all of it and every part of it, as well as the bundle of property rights of the objectors as the joint registered proprietors of the land. As defined and as the word 'property' is used in the Act, it refers to legal or equitable rights and to the thing which is the subject of those rights.
The word is not capable of referring to that part of the land which was the space occupied by the shed because that thing has no separate existence except as part of the Lot the subject of the particular certificate of title, and there is no capacity to exercise legal or equitable rights in respect of the shed separately from those which attach to the property as a whole, identified in the certificate of title and the subject of the freezing notice.[74]
[74] BJF v The State of Western Australia [19] - [20].
BJF v The State of Western Australia was followed by Mitchell J (as his Honour then was) in Powell v The State of Western Australia.[75] The facts were very similar to BJF v The State of Western Australia. Within a residential property police officers located three cannabis growing rooms in a large shed. Mitchell J observed that it was not open to dispute that the property had the status of crime-used property by reason of the use of the property to cultivate the cannabis plants hydroponically grown in the shed.[76] It was said that '[t]he whole of the Property, and not merely the areas used for cannabis cultivation and storage, is to be regarded as crime-used'.[77]
[75] Powell v The State of Western Australia [2014] WASC 435.
[76] Powell v The State of Western Australia [22].
[77] Powell v The State of Western Australia [22].
I agree with, and adopt, the approach and conclusions in BJF v The State of Western Australia and Powell v The State of Western Australia. I consider it is necessary, as was stated by Murray J, to give due recognition to the use of the term 'property' in s 82(1). In context, the reference there is to the property as described in the freezing order; it is that property which is the subject of the freezing order and to which objection is taken as to confiscation. It is for the objector to establish on the balance of probabilities that the property the subject of the freezing order - here the Swan Street property - is not crime-used.
Mr Sokmas has not satisfied his onus in this regard. Mr Sokmas cannot do so given his acceptance that the offence under s 7(1)(a) of the Misuse of Drugs Act 1981 (WA), for which he was convicted, took place within the cellar at Unit 3 of the Swan Street property. It cannot be said that it is more likely than not that the Swan Street property is not crime-used when the cellar to Unit 3 is crime-used. Accordingly, I consider that the Swan Street property is 'crime-used' within the definition of s 146(a) of the Act and the ground under s 82(1) is not available to set aside the freezing order.

I have said that the only available basis for Mr Sokmas' objection is that under s 82(1) of the Act. It is necessary to explain why s 82(3) and (4) are unavailable.
Section 82(3) cannot apply. Mr Sokmas is not an 'innocent party' (one of the requirements under s 82(3)(b)). He was the person convicted of the relevant confiscation offence and was thus self‑evidently involved in its commission. Necessarily he also knew that the offence was being committed and that the property was being used in or in connection with the commission of the offence. As to the third part of the definition of innocent party, Mr Sokmas acquired the property, and it was in his effective control, before the time of the offence.
Section 82(4) is also inapplicable as Mr Sokmas cannot meet the statutory criteria of an 'innocent person' in relation to the property - that being only one of the requirements under s 82(4)(c).
Accordingly, I will order that Mr Sokmas' objection to the confiscation of the Swan Street property is dismissed.

Suncorp-Metway Ltd's objection to the confiscation of the Swan Street property

Suncorp-Metway Ltd has stated, through its solicitor, that it does not oppose the orders sought in the application. These include the dismissal of its objection. But it is nevertheless necessary that the fate of the objection be finally determined. I propose to do so in relatively brief terms given Suncorp-Metway Ltd's non-opposition.
Within s 82 of the Act the only possible basis on which Suncorp‑Metway Ltd could succeed in setting aside the freezing order is the ground under s 82(4). Section 82(1) is not available for the reasons given as to Mr Sokmas' objection. And, in relation to s 82(3), Suncorp-Metway Ltd cannot meet the integer under s 82(3)(a); it is not a spouse, de facto partner or dependant of Mr Sokmas.
As to s 82(4), the applicants concede that Suncorp-Metway Ltd satisfies the criteria in subsections (a), (b) and (c).[78] That concession is properly made. Nevertheless, to conclude, as I do, that s 82(4) is unavailable to Suncorp-Metway Ltd, it is enough that Suncorp-Metway Ltd cannot meet the statutory criteria under s 82(4)(d) of the Act. For the reasons already given, Mr Sokmas (being another owner of the Swan Street property) is not an innocent party in relation to the property.
[78] Applicants' Submissions par 47.
Accordingly, I will order that Suncorp-Metway Ltd's objection to the confiscation of the Swan Street property is dismissed.
I note, however, that despite seeking the dismissal of Suncorp‑Metway Ltd's objection to the confiscation of the Swan Street property, the applicants have suggested that orders be made under s 82(5) of the Act providing for Suncorp-Metway Ltd to be paid its secured debt on the settlement of the sale of the Swan Street property. Whether or not to make such orders stands outside the orders made on 20 July 2018 that the subsisting objections be determined on the papers. That aspect of the application should be finally determined at a later date.
It is unclear to me whether immediate dismissal of Suncorp‑Metway Ltd's objection might have any implications for the further orders sought under s 82(5) of the Act. The applicants' written submissions proceeded on the basis that all parts of the application were to be determined. In that respect there was a disconnect between the submissions and the order sought on behalf of the applicants, on 20 July 2018, that the subsisting objections be determined on the papers.
To avoid any unforeseen consequences for Suncorp-Metway Ltd's ability to seek on order under s 82(5) of the Act I will order that the coming into operation of the order dismissing Suncorp-Metway Ltd's objection is deferred.

Orders

Subject to hearing from counsel as to the precise terms of the orders, I will make orders that:
(1)The first objector's objection to the confiscation of the property being 151 Swan Street, Yokine (legally described as Lot 18 on Diagram 24576 the whole of the land contained in Certificate of Title Volume 1256 Folio 43) (Property) is dismissed.
(2)The fifth objector's objection to the confiscation of the Property is dismissed.
(3)The coming in to operation of par 2 of these orders is suspended until final determination of the applicant's and respondent to the objection's application by chamber summons dated 23 March 2018 or further order.
(4)The applicant, the respondent to the objection and the fifth objector have liberty to apply on three business days' notice to vary or discharge par 3 of these orders.
I will hear from the parties as to costs. I will also hear from them as to the orders for the finalisation of the application by chamber summons dated 23 March 2018.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CC
ASSOCIATE TO THE HONOURABLE JUSTICE VAUGHAN
31 AUGUST 2018