The State of Queensland v Vosmaer
[2004] QSC 32
•2 March 2004
SUPREME COURT OF QUEENSLAND
CITATION:
The State of Queensland v Vosmaer & Ors [2004] QSC 032
PARTIES:
THE DIRECTOR OF PUBLIC PROSECUTIONS
(applicant)
v.
MARIO JOHN VOSMAER
(first respondent)
and
SHARNI MICHELLE VOSMAER
(second respondent)
and
NOEL JOHN CHRISTIE
(third respondent)
and
CHERYL LYNN CHRISTIE
(fourth respondent)
and
PETER SQUIRE
(fifth respondent)
and
JENNIFER ISOBEL SQUIRE
(sixth respondent)FILE NO:
S3048/99
DIVISION:
Trial
ORIGINATING COURT:
Supreme Court, Brisbane
DELIVERED ON:
2 March 2004
DELIVERED AT:
Brisbane
HEARING DATES:
19 September, 5 November and 8 December 2003, and 1 March 2004
JUDGE:
Helman J.
CATCHWORDS:
CRIMINAL LAW – Confiscation of profits and property following conviction of drug offences.
Crimes (Confiscation) Act 1989
Criminal Proceeds Confiscation Act 2002, s. 108, s. 161,
s. 162, s. 163, s. 164.Patman v. Fletcher’s Fotographics Pty Ltd (1984) 6 I.R. 471
COUNSEL:
Mr M.K. Conrick for the applicant Mr J.P. Kimmins for the first and second respondents
SOLICITORS:
Director of Public Prosecutions for the applicant Ryan & Bosscher for the first and second respondents
This application, filed by leave on 19 September 2003, is by the first and second respondents in this proceeding, Mario Vosmaer and his wife Sharni Vosmaer, for a declaration that property the subject of a restraining order made by this court has not been automatically forfeited to the State of Queensland. The respondent to the application, the applicant in proceeding no. 3048 of 1999, is the Director of Public Prosecutions. Mr Conrick on behalf of the Director sought, without objection, the substitution of the State of Queensland for the Director as the relevant party. I shall make an order to that effect in due course.
On 1 April 1999 Derrington J made a restraining order against the Vosmaers on the application of the Director in relation to their property in two bank accounts: $162,000 in both names, and $20,000 in the name of Mario Vosmaer. The order was made pursuant to provisions of the Crimes (Confiscation) Act 1989 then in force. An affidavit before his Honour sworn on 1 April 1999 by Detective Sergeant Graham Walker of the State Drug Investigation Squad, State Crime Operations Branch, showed that on 22 February 1999 each of the Vosmaers had been arrested on a charge of carrying on the business of unlawfully trafficking in the dangerous drugs heroin and amphetamine between 1 January 1995 and 22 February 1999 at Brisbane, Queensland.
The Vosmaers were dealt with for drug offences in late 2002. I shall give the details of the charges and the penalties imposed later, but the fact I wish to mention now is that until they were dealt with the charges against them remained unaltered, although they were not in the end proceeded with. Further restraining orders were made in relation to the charge of trafficking: on 7 April 1999 by Mackenzie J., on 12 July 1999 by Shepherdson J., on 25 November 1999 by Douglas J., on
2 December 1999 by Shepherdson J., on 10 July 2000 by Holmes J., on
10 July 2001 by Atkinson J., on 10 July 2002 by Muir J., and on 7 August 2002 by Mullins J. Although Derrington J.’s order had been confined to the property in the two bank accounts, by the time the Vosmaers were dealt with the restraining order to which they were then subject prevented their dealing with any of their property. The great width of the restraint may be traced back to the order made by Douglas J.
Sharni Vosmaer was the first of the two to be dealt with. On 28 August 2002 she pleaded guilty to two charges of supplying dangerous drugs, on 4 October 1995 in one case and the other on 22 October 1995. On 6 September 2002 Douglas J. fined her $1,000. As the Crown prosecutor narrated the facts to Douglas J., on both occasions people had visited her home seeking heroin. She had not actually supplied the visitors on either occasion. Money ($500) was mentioned only on the first occasion. She accepted that account of the facts, pleading guilty, it appears, on the basis that she had offered to supply the visitors. On the first occasion, the heroin was not available. It is not clear why there had been no actual supply on
22 October.
On 30 September 2002 Mario Vosmaer pleaded guilty on three counts. Count 1 is the one that is relevant to this application. The certificate put before me (exhibit 2) records the charge on count 1 as ‘Trafficking in a Dangerous Drug/on the 31st day of December, 1994 and the 20th day of February 1996 at Brisbane’. There is no dispute that the charge was in fact one of trafficking in heroin between those dates. The other two counts were of corrupting a witness and perjury. On
11 November 2002 Mackenzie J. sentenced Mario Vosmaer on count 1 to imprisonment for eight years, and on each of the other two counts to concurrent terms of imprisonment of twelve months to be served cumulatively upon the
eight-year sentence.
The contention for the State of Queensland is that all of the property of the Vosmaers has been forfeited pursuant to Part 5 (Automatic Forfeiture) of Chapter 3 (Confiscation after Conviction) of the Criminal Proceeds Confiscation Act 2002, which commenced on 1 January 2003. It is not in issue that by operation of Chapter 12 of the 2002 Act (Transitional Provisions, Repeal and Amendments) Part 5 of Chapter 3, the relevant sections of which are 161 to 164 inclusive, applies to this case. Those sections are as follows:
161 Definitions for pt 5
In this part –
“forfeiture period”, for a prescribed respondent, means the later of –
(a)a period of 6 months starting on the day of the prescribed respondent’s conviction of a serious criminal offence; or
(b)the 6 months mentioned in paragraph (a) as extended under section 163; or
(c)if the prescribed respondent appeals against the conviction and the appeal is not decided within the 6 months after conviction, the period ending when the appeal is finally decided.
“prescribed respondent” means a person who is treated as if convicted of a serious criminal offence, other than because the person is unamenable to justice.
162Application of pt 5
This part applies if –
(a)a restraining order is, or was, granted for property, whether the property of a prescribed respondent or someone else, because of –
(i)the prescribed respondent’s conviction of the serious criminal offence; or
(ii)the charging, or proposed charging, of the prescribed respondent with the serious criminal offence or a related serious criminal offence; and
(b)the Supreme Court has not made an order declaring that the property is not subject to automatic forfeiture; and
(c)the restraining order is still in force when the forfeiture period ends.
163Automatic forfeiture of restrained property
(1) Property of the prescribed respondent that was acquired after the day that is 6 years before the commission of the serious criminal offence and is restrained under the relevant restraining order is forfeited to the State when the forfeiture period ends.
(2) Property of another person that is restrained under the relevant restraining order is forfeited to the State when the forfeiture period ends.
(3)The 6 years mentioned in subsection (1) includes periods before and after the commencement of this section.
(4) However, before the end of the first 6 months of the forfeiture period, the prescribed respondent may apply to the Supreme Court for an extension of the forfeiture period of up to 3 months.
(5) The Supreme Court may extend the forfeiture period by not more than 3 months if it is satisfied it is in the interests of the administration of justice to extend the period in the special circumstances of the case.
164Effect of automatic forfeiture
(1)Property automatically forfeited under this part vests absolutely in the State on its forfeiture to the State.
(2) On application, the Supreme Court may give any necessary or convenient directions for giving effect to the forfeiture.
It was not in issue that the Vosmaers were prescribed respondents, that they were originally charged with and later convicted of serious criminal offences, that no application had been made that this court make an order under s. 162(b), that a restraining order was still in force when the forfeiture period ended in each case, or that all of the property in question was acquired after the day that was six years before the commission of the serious criminal offences and was restrained under the order.
The argument advanced for the Vosmaers was that since they were not convicted of the serious criminal offence in relation to which the restraining order was made, and although they were convicted of other serious criminal offences, the property the subject of the restraining order was not automatically forfeited to the State.
That result would follow in the circumstances of this case from the construction of s. 163(1) contended for on behalf of the Vosmaers. It depends on reading that section in isolation. There being no reference in the section to a related serious criminal offence, it follows, so it was argued, that the serious criminal offence in relation to which the restraining order was granted must have been committed and a prescribed respondent convicted of it before there can be automatic forfeiture of restrained property.
I am not persuaded that that argument is correct. ‘The starting point to the understanding of any document is that it must be read in its entirety. A writer will not expect an audience to read only selected passages and will therefore make different passages dependent one upon another. The courts have frequently said that the same approach is applicable to the interpretation of an Act’: Pearce & Geddes, Statutory Interpretation in Australia (5th ed., 2001) para 4.2, p. 88. As Priestley J.A. remarked in Patman v. Fletcher’s Fotographics Pty Ltd (1984) 6 I.R. 471 at
p. 474, he saw no reason why the statute considered in that case ‘should not be read in the ordinary way in which a document is read, that is, from the beginning onwards’. Reading s. 163 in the context of the preceding provisions of part 5, one notices changes from the indefinite to the definite article in relation to ‘prescribed respondent’, ‘serious criminal offence’, and ‘restraining order’. Those changes mark the transition from a person or thing not particularized to a person or thing particularized. It can be seen then that the expression ‘the prescribed respondent’ used in s.163(1) is a reference to a prescribed respondent who has been convicted of a serious criminal offence referred to in s. 161. Similarly, the expression ‘the serious criminal offence’ used in s. 163(1) refers to a serious criminal offence first mentioned in s. 161, and the expression ‘the relevant restraining order’ refers to a restraining order of one of the kinds first mentioned in s. 162. Accordingly, on my construction of s. 163(1), forfeiture will follow provided each of conditions (a), (b), and (c) provided for in s. 162 is satisfied. Condition (a) will be satisfied if a restraining order was granted for property of a prescribed respondent in either of the instances referred to in (i) or (ii). If the restraining order was not granted because of the prescribed respondent’s conviction of the serious criminal offence, it will be sufficient if the restraining order was granted because of the charging of the prescribed respondent with a serious criminal offence related to the serious criminal offence of which the prescribed respondent was convicted. (Section 108 provides that an offence is ‘related’ to another offence if both offences consist substantially of the same acts or omissions or form part of the same series of acts or omissions.)
It was conceded on behalf of Mario Vosmaer, correctly in my view, that the condition provided for in s. 162(a), as I have construed it, was satisfied in his case. The alleged offence that resulted in the granting of the restraining order and the trafficking offence of which he was convicted, though not consisting of substantially the same acts (the former covering a longer period than the latter) did form part of the same series of acts. A series of acts constituting carrying on the business of unlawful drug trafficking over a lengthy period can, I think, properly be taken to include a series of acts constituted by unlawful drug trafficking over a substantial part of that period.
The criminal acts of which Sharni Vosmaer was convicted were not substantially the same acts as those with which she was originally charged: two cases of offering to supply in October 1995 on the one hand, and unlawful drug trafficking over a lengthy period on the other. But did the offences of which she was convicted and the offence with which she was originally charged form part of the same series of acts? Although of course one, or two, instances of offering to supply a dangerous drug for reward may be evidence of carrying on the business of unlawfully trafficking they will not necessarily be so. I am not persuaded therefore that two acts of supplying – deemed supplying in this case - in October 1995 can properly be said to form part of the same series of acts constituted by carrying on the business of unlawfully trafficking in dangerous drugs for over four years.
It follows that Mario Vosmaer fails in his application and Sharni Vosmaer succeeds in hers.
I should mention two further matters: first, there was an argument advanced on behalf of the State that the facts of the case against Sharni Vosmaer were not confined to those put before Douglas J. on 6 September 2002 and could be supplemented by those put before Mackenzie J. on 11 November 2002 when Mario Vosmaer was sentenced. I am unable to accept that argument. The case against Sharni Vosmaer was that presented on 6 September 2002 and that was the end of the matter. The case against Mario Vosmaer was a discrete matter concerned with his criminal behaviour, and his alone.
Secondly, an argument originally advanced on behalf of Mario Vosmaer concerning the $20,000 I have mentioned was later abandoned.
I shall invite further submissions on the form of the orders to be made.
The State of Queensland v Vosmaer [2004] QSC 32
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