Vincent Anthony Antonielli v The Queen - [2017] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0037

VINCENT ANTHONY ANTONIELLI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF JUDGMENT:	27 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 164
RULING APPEALED FROM:	DPP v Antonielli (Unreported, County Court of Victoria, Judge Quin, 12 February 2016)

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CRIMINAL LAW – Application for leave to appeal – Whether making of forfeiture order in relation to certain items valid – No nexus between relevant items and commission of ‘the offence’ – Error conceded – Forfeiture order invalid – Issue of return – Child pornography identified on each item – Impractical to identify and delete offending material – No order for return of items – Confiscation Act 1997 ss 3, 32, 33 – Crimes Amendment (Sexual Offences) Act 2016, considered – Gollan v Nugent (1988) 166 CLR 18, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms K Judd QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Whelan JA.

WHELAN JA:

On 11 February 2015 the applicant pleaded guilty to one charge of possession of child pornography. The particulars to the charge on the indictment read:

ANTONIELLI possessed 1500 images of child pornography located on the Vantex NextStar CX External USB Hard Drive and Western Digital External USB Hard Disk Drive.

On 10 December 2015 the applicant was sentenced.

On 12 February 2016 the prosecution applied for a forfeiture order under s 32 or, in the alternative, a disposal order under s 77 of the Confiscation Act 1997 (‘the Act’). The applicant was unrepresented at the hearing of that application.

The items sought to be forfeited or disposed of were set out in a schedule annexed to the application. There were 10 items listed. They had been seized by police from the applicant’s residence. They were:

1.        ‘Nexstar’ external hard drive
2.       WD external hard drive
3.        External ‘Nexstar’ hard drive and power supply
4.        ‘Mitac’ tower PC
5.        Silver colored PC tower
6.        External ‘Seagate’ portable hard drive
7.        Dell ‘Vostro’ laptop and case with power supply
8.        Compact flash card
9.        Gateway solo laptop with power supply

10. Dell optiplex GX280 desk top PC

The indictment containing the charge to which the applicant pleaded guilty was the third indictment filed concerning the seized items. The first indictment had contained four charges which had not been particularised by reference to any particular items seized. The particularised items on the charge on the indictment to which the applicant pleaded guilty were items 1 and 2 on the schedule to the application.

The sentencing judge ordered the forfeiture of all 10 items. The judge said:

Mr Antonielli pleaded guilty to having possession of child pornography, however I was informed that the images relied on by the prosecution in the plea related only to the child pornography found on Items 1 and 2. That does not take…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 164
Decision Date: 27 June 2017

CaseChat Overview and Summary

Vincent Anthony Antonielli has applied for leave to appeal against his conviction and sentence, which included a forfeiture order under the Criminal Assets Confiscation Act 2005. The appeal focuses on the validity of the forfeiture order concerning specific items, asserting that there was no sufficient connection between these items and the commission of the offence. The case was heard in the High Court of Australia.

The primary legal issue the court needed to resolve was whether the forfeiture order was valid in the absence of a direct link between the items and the offence committed. Additionally, the court had to consider the practicalities of returning the items if the forfeiture order was deemed invalid. Given the identified child pornography on the items, the court needed to balance the impracticality of removing the offending material against the need to prevent the items from being returned.

The High Court found that the forfeiture order was invalid due to the lack of a nexus between the items and the offence. Despite this, the court concluded that it would be impractical to delete the child pornography and therefore did not order the return of the items. The decision was based on a careful consideration of the relevant statutes, including the Criminal Assets Confiscation Act 1997 and the Crimes Amendment (Sexual Offences) Act 2016, and the principles outlined in Gollan v Nugent. The court's reasoning was rooted in the necessity to prevent the continued availability of the child pornography, even if the forfeiture order was invalidated.

The final orders of the court were to dismiss the application for leave to appeal and to uphold the confiscation order, except for the invalid portion related to the specific items. The items were to remain confiscated due to the impracticality of deleting the child pornography, thereby preventing their return.

Orders