Tran v The State of Western Australia

[2017] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TRAN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 200

CORAM:   MARTINO J

HEARD:   20 JULY 2017

DELIVERED          :   20 JULY 2017

FILE NO/S:   CPCA 75 of 2012

BETWEEN:   PHI VAN TRAN

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Plaintiff declared a drug trafficker - Application for declaration of confiscation

Legislation:

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

Result:

Confiscation declaration made

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr V J Pelligra

Solicitors:

Plaintiff:     In person

Defendant:     Director of Public Prosecutions (WA)

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

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324

Ly v The State of Western Australia [2015] WADC 132

1. MARTINO J:  On 5 October 2012 the plaintiff filed an originating summons objecting to a freezing notice issued on 12 September 2012.  On 9 November 2012 by consent this court ordered that the originating summons filed on 5 October 2012 also stand as an objection to a freezing notice issued on 15 October 2012.

2. The defendant applies by summons filed on 11 April 2014 for an order dismissing those objections and a declaration under s 30 of the Criminal Property Confiscation Act 2000 (WA) that property has been confiscated pursuant to s 8(1) of the Criminal Property Confiscation Act. The summons seeks an order that all of the property that the plaintiff owned or effectively controlled at the date he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) and all property that he had given away has been confiscated to the State of Western Australia. The property that the defendant seeks to be declared as having been confiscated includes the plaintiff's interest as joint tenant in land at Girrawheen, amounts of cash and amounts of money in bank accounts.

3. In three other actions parties have filed originating summons objecting to freezing notices.  In CPCA 70 of 2012 Westpac Banking Corporation filed an originating summons.  That summons was dismissed by consent on 25 February 2014. 

4. In CPCA 77 of 2012 Thi Thanh Tam Nguyen and Thi Quynh Giao Tran filed an originating summons.  Their objections were dismissed by consent on 7 September 2015. 

5. In CPCA 33 of 2013 Thi Thanh Ly filed an originating summons relating to the freezing notice issued on 15 October 2012.  That objection was dismissed on 21 November 2016.  Ms Ly was charged with three offences of possession of a prohibited drug with intent to sell or supply on the same indictment as the plaintiff.  Ms Ly was convicted after trial and she was declared to be a drug trafficker.  Ms Ly also commenced POC 10 of 2012 in the District Court of Western Australia in respect of freezing notices issued to her.  On 13 November 2015 in POC 10 of 2012 Derrick DCJ dismissed Ms Ly's objection, save as to $15,000 which was ordered to be paid to Huyen Tran: Ly v The State of Western Australia [2015] WADC 132.

6. On 11 November 2013 in the District Court the plaintiff was convicted of three offences of possession of a prohibited drug with intent to sell or supply. The offences were committed on 11 and 12 September 2012. On 20 December 2013 the plaintiff was sentenced for those offences and declared to be a drug trafficker. Pursuant to s 8 of the Criminal Property Confiscation Act all of the property that he owned or effectively controlled at the date of the declaration and all property that he had given away was automatically and immediately confiscated: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324.

7. On 11 June 2014 E M Heenan J ordered that the plaintiff file affidavits in opposition to the State's application by 11 August 2014.  No affidavits have been filed.

8. On 22 November 2016 Kenneth Martin J ordered that the plaintiff serve on the Office of the Director of Public Prosecutions a written response setting out the basis of his objection to the application for a declaration of confiscation by 15 December 2016.

9. On 15 December 2016 the Office of the Director of Public Prosecution received a document in Vietnamese which it had translated into English. Copies of that document and the translation are attached to the affidavit of Amanda Jackson made 6 July 2017 and the affidavit of the translator made on 12 July 2017.

10. It is a letter dated 7 December 2016 addressed to the judge hearing the application.  In the letter the plaintiff describes the difficulties in his life in Vietnam, his dangerous journey from Vietnam as a refugee, his time in a refugee camp in China and his arrival in Australia.

11. In 1999 the plaintiff sponsored his wife Nguyen Thi Thanh Tam and his daughter Tran Thi Quynh Giao to Australia.  In 2001 the family bought a house in Girrawheen.  In 2005 the plaintiff moved out of the family home to live with his girlfriend Ly Thi Thanh.  The plaintiff signed the paper to leave the house to his wife and children.  Until his arrest the plaintiff thought that he had transferred the house to his wife and children, but he was then told that all of the papers that he signed were invalid.

12. In 2012 the plaintiff sponsored another daughter, who had been born in China, to Australia.  Her life is very difficult. She does not have a place to eat or sleep and she is required both to work and to study.

13. In 2010 the plaintiff was involved in a work place accident.  He suffered a broken hand.  He was not able to work and did not have enough money to support himself.  At that time he met bad people who persuaded him to venture into crime.  He is now very regretful for his conduct which resulted in his 13 year sentence of imprisonment.

14. The plaintiff's father died in April 2016.  The plaintiff was heartbroken that he was not able to return to attend to his funeral.

15. The plaintiff asks me to pardon him for his errors, for me to be lenient and to help him and his family have a chance.  He asks that the property not be confiscated but that it be left for his wife and children to live in because their lives have been hard.  The plaintiff considers that when he is released from prison he will be so old that he will not be able to help his family or his elderly mother who still lives in Vietnam.

16. Also attached to the affidavit of Ms Jackson are copies of documents filed in CPCA 77 of 2012.  That action was commenced by the plaintiff's wife and daughter.  Those documents include an affidavit of the plaintiff made on 27 August 2015 in which he deposed that on 3 September 2012 he signed a statutory declaration agreeing to transfer the ownership of the Girrawheen property to his wife.  A copy of that statutory declaration was attached to his affidavit.

17. As I have noted earlier in these reasons the objections by the plaintiff's wife and daughter in CPCA 77 of 2012 were dismissed by consent on 7 September 2015.  The orders made on that day also vacated a trial that was listed to commence on 9 September 2015.

18. The consequence of the plaintiff having been declared a drug trafficker is that all of the property that he owned or effectively controlled at the date of the declaration and all property that he had given away was automatically and immediately confiscated.  The issue for me to determine at this hearing is whether the State has satisfied me, on the balance of probabilities, that the property which it seeks to have declared confiscated was owned or effectively controlled by the plaintiff at the time that he was declared to be a drug trafficker or had been given away by him:  Ly v The State of Western Australia [29] ‑ [38]. The materials that the State has filed do satisfy me on the balance of probabilities that the plaintiff was the owner of the property that the State seeks to have declared confiscated. Those materials are in the affidavit of Sherri Stacey made on 8 April 2014. They include a copy of the certificate of title of the Girrawheen land showing the plaintiff's interest in it as joint tenant.

19. I am satisfied as to that conclusion notwithstanding the matters raised in the plaintiff's letter and the affidavits filed in CPCA 77 of 2012. The statutory declaration he signed on 3 September 2012 was not effective to divest him of his interest as joint tenant in the Girrawheen land. He remained registered proprietor of his interest in the land at the date he was declared to be a drug trafficker. Even if it had been effective to operate as a gift of the interest in the land that interest would have been confiscated under s 8 of the Criminal Property Confiscation Act as property that he had given away.

20. I am therefore required by the provisions of the Criminal Property Confiscation Act to make a declaration that the property has been confiscated.

21. The Act does not give me a discretion to refuse to make the declaration by reason of difficulties in the life of the plaintiff and members of his family that are set out in the plaintiff's letter. I will therefore make the order and declaration applied for by the defendant.