DIRECTOR OF PUBLIC PROSECUTIONS v ROBERT JOHN HELPS DIRECTOR OF PUBLIC PROSECUTIONS v DEAN LYNTON OTTENS Nos. 122 of 1993, 159 of 1993 Number of pages - 14 Criminal law - forfeiture of property

[Previous Article][Next Article]

DIRECTOR OF PUBLIC PROSECUTIONS v ROBERT JOHN HELPS      
DIRECTOR OF PUBLIC PROSECUTIONS v DEAN LYNTON OTTENS
Nos. 122 of 1993, 159 of 1993
Number of pages - 14
Criminal law - forfeiture of property
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MARTIN CJ

CWDS
  Criminal law - forfeiture of property

HRNG
DARWIN
#DATE 18:4:1994
Appearances not available

ORDER
  Orders made.

JUDGE1
MARTIN CJ  These are applications by the Director of Public Prosecutions,
pursuant to the Crimes (Forfeiture of Proceeds) Act, for forfeiture orders in
respect of certain property which he claims is "tainted property", being
property used in connection with the commission of an offence against a law of
the Territory that may be prosecuted on indictment (s3 definitions). The
offence was that of cultivation of a commercial quantity of a dangerous drug,
namely 10,553 cannabis plants at Hidden Valley Station contrary to the Misuse
of Drugs Act.  The maximum penalty for the offence is 25 years imprisonment.

2.  Each of the above named offenders, along with others, pleaded guilty to
the charge and were formally convicted.  (Formal conviction by the Court is
not, however, a precondition to the exercise of jurisdiction to make a
forfeiture order; s3(2)(b)).

3.  Where a person has been convicted of such an offence the Director may,
within prescribed time limits, apply to the Court for an order pursuant to s5
in relation to specified property and if the Court -
    (a) is satisfied that the property is tainted property in
    relation to the offence, that is, used in or in connection
    with or derived or realised, directly or indirectly, by a
    person as a result of the commission of the offence, and
    (b) has taken into consideration (having regard to the
    information before it) -
      (i) the use that is ordinarily or had been intended to be
      made of the property; and
      (ii) any hardship that may reasonably be likely to arise
      (whether on the part of that person or any other person)
      following the making of the order
    it may order that the property is forfeited to the Territory
    (s5 and definition).

HELPS - APPLICATION AND FACTS
4.  As to Helps, the application is made in respect of a Ford motor vehicle,
registered in his name in South Australia number UHS 026, valued by agreement
at, $11,000.  It was admittedly driven by him from Adelaide to Hidden Valley
with two co-offenders as passengers, namely Bruno Musitano and Vincenzo Rocca.
Those three people were largely responsible for setting up the plantation,
Helps primarily being engaged in seeing to the reticulation of water from a
nearby bore, and the others planting the cannabis seeds and watering and
otherwise tending to the growing plants.  They were present when some of the
plants were harvested and sold and others harvested and prepared for sale.
Helps' vehicle was also used for transporting the co-offenders from Hidden
Valley Station to Dunmarra Roadhouse, but it is not clear that the purpose for
those trips had much to do with the illegal conduct.  He worked at the site
from early June 1993, until the police raid during which he was arrested, on
22 August of that year.  A sum of $7,000 in cash was handed to him by a
co-offender which was to be delivered to Ottens.  It was placed in the boot of
the car.

5.  Helps' sworn evidence was that the vehicle had been purchased by him from
the joint savings of himself and his mentally incapacitated adult daughter,
she being in receipt of a social security benefit arising from her disability.
It was not suggested upon the hearing that the arrangements between Mr Helps
and his daughter in relation to the purchase of the car was such that there
was reason to believe she had an interest in it, and the Director was not
required to give notice to her (s5(2)(a)). Given those facts, s7 would appear
to provide her with the opportunity to claim and seek to protect any such
interests if a forfeiture order is made in respect of the vehicle.  Mr Helps
also said that he and his wife had separated some time ago, that his daughter
and his wife did not get along well together, and that he had cared for his
daughter in a house in Adelaide.  The vehicle was acquired and used by him in
Adelaide for normal purposes, including the provision of transport of his
daughter on outings, including for her rehabilitation.  He is presently in
prison and she is cared for by her mother and her grandparents who also live
in Adelaide.  According to Mr Helps, the mother is unable to provide transport
for the daughter as often as needed, and the grandparents have no motor
vehicle.  If the subject vehicle was not forfeited it could go to the
grandparents who could then use it for the benefit of his daughter.  Her
mental condition is such that she is unable to use public transport. The use
of the car in connection with the commission of the offence was remote.  It
simply provided transport for labourers to travel from Adelaide to the site,
and as a piece of property had nothing more to do with the cultivation of
cannabis.

6.  I am satisfied that the motor vehicle was purchased and ordinarily used
for innocent domestic purposes in Adelaide. Apart from any hardships that Mr
Helps may suffer as a result of the forfeiture of the vehicle itself, hardship
may reasonably be likely to arise on the part of his daughter following the
making of any forfeiture order in respect of the motor vehicle, because
arrangements could not be made for it to be made available in Adelaide to
provide for her transport, for which there is no reasonably available
alternative for her.  There is nothing to suggest that the daughter had any
knowledge of the purpose for which her father took the car from Adelaide.

7.  Helps was sentenced to four years imprisonment for his part in the crime
and it was ordered that he not be eligible for release on parole for 18
months, both periods to commence on 22 August 1993.

OTTENS - APPLICATION
8.  In respect of Ottens, the application for forfeiture, as originally
framed, was for the following:
    "(a) pastoral lease No 936, in respect of which Scobie and
    Son Pty Limited is the lessee and the Northern Territory
    of Australia is the lessor in respect of the property known
    as Hidden Valley Station, Daly Waters in the Northern
    Territory being all that piece of parcel of land containing
    an area two thousand eight hundred and eleven square
    kilometres or thereabouts and being Northern Territory
    Portion 2724 and being the land more particularly described
    in Registry Book Volume 197 Folio 90
    (b) all of the right title and interest of Dean Lynton
    Ottens in shares, stock or scrip in the said company
    Scobie and Son Pty Limited
    (c) A John Deere Tractor Model No. 8430 Serial No. 6466 AR
    12032354 RG.
    (d) A Clark Front End Loader Model No. 75A Serial No. 58028.
    (e) A quantity of fertiliser as described:
      (i) 65 x 20 kg bags of "Nurseryman's Choice" brand potting
      mix;
      (ii) 31 x 50 kg bags of "Pivot" brand Ammonium Nitrate;
      (iii)7 x 50 kg bags of "Top" brand Superphosphate; and
      (iv) 16 x 50 kg bags of "Pivot" brand complete D.N.P.K.
    (f) $7,000.00."

9.  During the course of the proceedings, the application was withdrawn in
respect of the shares, stock or scrip in Scobie and Son Pty Ltd, when it was
recognised that no such property could be shown to fall within either part of
the definition of "tainted property" in the Act.

FACTS RE THE PASTORAL LEASE AND INTERESTS IN IT
10.  The pastoral lease was held by Scobie and Son Pty Ltd from the Crown in
right of the Northern Territory.  Mr Ottens occupied the land the subject of
it.  It was upon part of that land (measuring approximately one hundred metres
by sixty metres out of the total area of the land the subject of the lease of
two thousand eight hundred and eleven square kilometres) that the illicit crop
was cultivated, and it was from it that water was drawn to nourish the plants.
But what is sought to be forfeited is not the land but the leasehold interest
in it (see definition of property s3). For jurisdiction to be founded for a
forfeiture application it must be shown that the property sought to be
forfeited is tainted property, that is, in this case, that the lessee's
interest in the pastoral lease was so tainted.  In these circumstances it
could only be so found if that interest was used in or in connection with the
commission of the offence.  It was not an issue in the proceedings, but I have
paused to consider how it is that that interest could be so used.  The land in
respect of which it is granted can be easily seen to be used in that way, but
the land can not be forfeited to the Crown as it already owns it.  All that
can be forfeited is the interest in it granted by the Crown.  A connection
between the interest and its use in or in connection with the commission of
the offence must lie in the circumstance that it is the interest which gives
the lessee, and those permitted by it to enter upon the land, the opportunity
to be upon the land and thus to commit the offence.  The use of the land is
dependent upon the existence of the lease and some of the rights granted to
the lessee thereunder.  It was the opportunity given to Mr Ottens as occupier
of the land with the consent of the lessee that enabled the commission of the
offence.  In that way, and there may be others, the connection is made.

11.  The lease was held by Scobie and Son Pty Ltd in which Mr Ottens and his
former wife have been the sole and equal shareholders and directors since
1985.  The only other interest in the lease known to the Court comprises that
of the ANZ Bank as mortgagee.  The Bank had notice of the application and
appeared simply to request that its interest be noted.  Its position, if a
forfeiture order is made, would appear to be protected under s6(1)(b), but the
Court would hear further from the Bank before making the order.

12.  As to the Territory, it is bound by the Act (s4), and the functions of
the Director are performed on its behalf, though in the name of his Office,
Director of Public Prosecutions Act s11(1).  It might be reasonably expected,
therefore, that such interests as the Territory may have in the proceedings as
owner of the land, and lessor of the lease sought to be forfeited, would be
taken into account by the Director.  As lessor the Territory has rights,
powers and privileges over, or in connection with the lease (see definition of
"interest").  The question whether hardship may reasonably be likely to arise
on the part of the Territory, if the forfeiture order is made, s5(1)(b)(ii)
also arises.  For example, the Court can but assume, since the Director acts
on behalf of the Territory, that consideration was given to the effect, if
any, which forfeiture may have upon the status of the land with reference to
the provisions of the Aboriginal Land Rights (Northern Territory) Act
(Commonwealth).  Since it was represented it was not required that notice of
the application be given to the Territory in its capacity as owner of the land
and landlord.

13.  As lessee, Scobie and Son Pty Ltd has an obvious legal interest in the
lease.  It appeared upon the hearing by the same counsel as was instructed by
Mr Ottens.  As shareholders and directors of that company, Mr and Mrs Ottens
have no legal or equitable interests in relation to the company's property and
I doubt that they have any right, power or privilege over, or in connection
with it within the meaning of the Act.  They have, however, every right to
represent the company to protect its interests, and, if desired, to give
evidence of personal hardship (s5(1)(b)(ii)). Mr Ottens did so, but Mrs Ottens
did not.  There is no other person who the Court has reason to believe has an
interest in the property or part of it.

14.  The infinitesimal proportion of land used in or in connection with the
commission of the offence has already been noted, as has the size of the crop.
The latter consideration bears more heavily in favour of the application than
does the former against it.  It is not suggested that the company was involved
in the offence in any other way.

15.  A search of the title to the pastoral lease shows that it was granted by
the Minister to the Company on 2 September 1985, but there is evidence to
strongly suggest that the company was in fact the holder of a former pastoral
lease in respect of the same land prior to that time.  According to Mr Ottens,
he and another person purchased the shares in Scobie and Son Pty Ltd in August
1983 and the company was at that time the lessee of the land.  In 1985, Mrs
Ottens purchased that other person's shares in the company, and Mr Ottens and
his wife have remained as the equal shareholders and directors since that
time, notwithstanding that a decree nisi for the dissolution of their marriage
was pronounced on 4 December 1992.  The Articles of Association of the company
are not before the Court and I will therefore proceed upon the basis that both
Mr and Mrs Ottens are entitled by reason of their respective shareholdings, to
have their paid up capital returned upon a liquidation, so far as the assets
of the company are available for that purpose, and that their respective
shareholdings entitle each of them to a one half share upon a distribution of
excess assets, if any.  Although there is no clear evidence as to what the net
asset value of the company is (for example, there is no up to date balance
sheet showing all assets and all liabilities) the parties appear to have
proceeded upon the basis that its only asset is its interest in the pastoral
lease and that it has no liabilities.  It has, however, granted the mortgage
to the ANZ Bank which is to secure loans to it or on account of Nectar Pty
Ltd.  No effort has been made to provide details of the assets and liabilities
of Nectar Pty Ltd so that the position as between the two companies can be
examined.  In the estimate of Mr Bremner, not a licensed valuer, but
nevertheless a real estate agent with long experience in a rural area, the
fair value of the pastoral lease and improvements is between $400,000 and
$500,000, all depending upon a number of factors.  It was assumed that there
were of the order of a thousand head of mixed cattle on the property, not
owned by the company, but by Nectar Pty Ltd, which Mr Bremner would estimate
to be worth somewhere between $250 and $300 a head, depending on their Brahman
content, a matter about which there was no evidence.  Mr Ottens gave evidence
after Mr Bremner and did not seek to put any other number upon the cattle on
the property, or advance any views as to their value.  There is some other
evidence that in late 1993, steers and other cattle were sold from Hidden
Valley for a price of approximately $300 each.

16.  There was no separate valuation of plant and equipment, nor was there any
evidence on which I could rely as to the value the interests of the companies
in the land and improvements, plant, equipment and stock upon a sale of the
enterprise on a walk-in walk-out basis.  The only liabilities of which there
is any evidence are those of Nectar Pty Ltd to the Bank, amounting to
approximately $557,000, and to Elders Limited, secured livestock mortgage,
$196,000.

17.  The forfeiture of the pastoral lease would result in a reduction in the
net asset value of the company of the order of, say, $450,000 and the bank,
exercising its power of sale as mortgagee, would still be owed a considerable
sum.  The likely outcome of the disposal of the stock and plant, whether sold
with the pastoral lease or not, and the ultimate disposition of the net
proceeds of the sale of those items, is entirely conjectural. Mr Ottens
deposes that he and his former wife are guarantors of the loan to the ANZ Bank
and thus would be personally liable for any shortfall.  All in all I am
satisfied that it is more than likely that if the pastoral lease is ordered to
be forfeited, and thus proceeds to sale under mortgagee's powers, (whether or
not Elders Limited joins in with a view to a sale of the property and
associated assets on a walk-in walk-out basis) the price to be realised will
be less than that which might be realised if the assets were sold in a more
orderly fashion.  It goes without saying, and there is evidence to suggest,
that a forced sale, which in my opinion would necessarily flow from a
forfeiture order in respect of the pastoral lease, would produce a sum
substantially less than fair market value.  That is a loss which Scobie and
Son Pty Ltd would bear initially.  Mr Ottens does not disclose how much was
paid for the transfer of the shares in Scobie and Son Pty Ltd nor what capital
has been invested on further improvement to the land.  He provides details of
the improvements which have been made, and they are undoubtedly substantial.

18.  I find that the lessee's interest in the pastoral lease is ordinarily
used for the conduct of a cattle station and that that has been the case since
at least the time when Mr and Mrs Ottens took transfer of the shares in the
company.  Income to assist in the running of the property has come, not only
from the proceeds of the sale of cattle, but through Mr Ottens' personal
labour in various contracting jobs undertaken by him in the district. There
have been a number of factors which have contributed to what appears to be the
present parlous financial position.  I need not go into them in detail since I
have not heard from those whom it is suggested by Mr Ottens contributed to the
losses. Until 1990 the property provided the place of residence for Mr Ottens
and his family.  At that time his wife left and until early 1993 Mr Ottens was
assisted by his eldest son, then aged 11, in the running of the station.
According to Mr Ottens, there is an expectation that that son would be able to
return to assist in the running of the property and eventually take over its
management.  Mr Ottens' parents, who were farmers themselves, have assisted
financially in the management of the station and have contributed over $40,000
to the ongoing costs. Acknowledging the financial difficulty, Mr Ottens
nevertheless remains optimistic that the debts can be reduced so that the
business may be conducted as a viable concern or, upon sale of all of the
property involved in the business, there would be sufficient funds left after
payment of debts for him to be able to take up an interest in another
property.

19.  Throughout the proceedings Mr Ottens spoke as if he were the proprietor
of the pastoral lease and the owner of all of the other assets and the debtor
to the bank, stock agent and other creditors.  No doubt he feels that way
because of the many years of hard work he has put into the business.  The
Court knows nothing of any arrangements between Mr and Mrs Ottens nor as to
whether she is likely to make any application under the Family Law Act for a
property settlement, although noting the time for doing so has expired.  It
must be remembered that they each have an interest in the outcome of these
proceedings, and for the reasons already indicated, hardship may reasonably be
likely to arise on their part following the making of a forfeiture order in
respect of the pastoral lease.  It would appear that they are likely to suffer
financial hardship through the diminution in the value of the net asset
backing of their shares in the companies. Of a less tangible nature, but
nevertheless real, it is also reasonably likely that Mr and Mrs Ottens and
Bradley will suffer hardship in having their son's expectations of returning
to the property to assist his father in the running of it, lost.  As to Mr
Ottens, it is reasonably likely that he will suffer further hardship if an
order is made forfeiting the pastoral lease, not only arising from the factors
already mentioned, but also through loss, in such circumstances, of the
business and assets which he has worked to acquire and build up over many
years.  In addition, and importantly if the forfeiture order is made, he would
certainly be unable to return to the property upon his discharge from prison,
losing what has been his place of residence and his vocation as a pastoralist.
The hardship of imprisonment will be increased if the order sought is made.

20.  I do not think it is appropriate to take into account the possibility
that even if a forfeiture order is not made, the hopes and expectations of Mr
Ottens and other members of his family will be dashed because of the actions
of secured creditors.  That will be something arising from contractual
commitments made in the ordinary course of business.

21.  The evidence is that Mr Ottens engaged in the cultivation of the cannabis
for the sole purpose of raising funds, one eighth of undefined proceeds of
sale, which he thought would amount to between $100,000 and $200,000, to be
applied for the purpose of saving the business and the business assets.
Although it is an agreed fact that the proceeds of sale of the cannabis, if
all harvested and sold illegally in small lots, would approximate $20m, there
was no evidence to suggest that Mr Ottens expected to receive or would have
received one eighth of that sum.

22.  There is nothing to suggest that Mrs Ottens or Bradley had any knowledge
or involvement of Mr Ottens criminal conduct.

OTHER PROPERTY - INTERESTS
23.  The position as to the ownership or the holding of any other interest in
the tractor, front end loader and fertiliser is unclear.  As to the plant, Mr
Ottens' evidence does not touch upon title, but I am safe in assuming, from
the general tenor of the evidence, that it is owned either by Nectar Pty Ltd
or himself and his former wife.  There was no reason to believe that any other
person had an interest in any of that property or any part of it.  Mr and Mrs
Ottens were the sole shareholders and directors of Nectar Pty Ltd, which it
seems was the management or operating company for the pastoral business
conducted on the land contained in the pastoral lease.

JOHN DEERE TRACTOR
24.  As to the John Deere tractor, the evidence of Mr Ottens is that it was
never used in relation to the cultivation of the cannabis, but was used to
cultivate a substantially larger area of ground than that upon which the
cannabis was later grown, and for the purpose of growing watermelons,
rockmelons and other varieties of melons.  The area cultivated with the
tractor had previously been sown to millet and other stock fodder which can be
useful as a ground cover for mulch in relation to the cultivation of melons.
The agreed facts in relation to Mr Ottens culpability in the offence simply
state that the tractor was used to cultivate the area, and not that it was
used to cultivate the area for the purposes of growing cannabis.  The evidence
does not show that it is tainted property.  The statement by Mr Helps to the
police as to his observation regarding the use of that tractor is not
admissible.

FRONT END LOADER
25.  As to the front-end loader, it was an agreed fact that it was used by Mr
Ottens for the purpose of carrying fertiliser to the area upon which the
cannabis was cultivated and leaving it at different points around that area.
In addition, Mr Ottens' evidence was that it was used by him to lift heavy
materials when he constructed a stock trough some 250 metres from the area
upon which the cannabis was planted in about October or November 1992, and
that it was left at that site after that work was finished. It was left at
that site with a view to its being used to build a tank stand annexed to the
stock trough and that work was in fact carried out in February 1994.  It was
used in connection with the commission of the offence in a minor way.  It was
ordinarily used for other innocent purposes.  There is no evidence directed to
hardship in relation to this particular item.

FERTILISER
26.  As to the fertiliser, it was claimed on behalf of Mr Ottens that he was
the owner of the 7 x 50 kilogram bags of "Top" brand superphosphate, it having
been purchased for an innocent purpose, being the provision of feed
supplements to the stock depastured on the land comprised in the pastoral
lease.  It was worth about $245.  It seems from other material before the
Court on an earlier application made to restrain the disposal of the property
the subject of the application, that the remaining fertiliser was part of a
larger quantity taken to the property by co-offenders and some of which was
used to fertilise the cannabis crop.  There are 3.65 tons of fertiliser
remaining valued at approximately $4,420.  There is nothing to cause me to
have reason to believe that any particular person has any interest in that
fertiliser. If a forfeiture order is made, any person who claims an interest
in it has the opportunity to apply for an order under s7.  The difficulty in
the way of the making of a forfeiture, however, is that it does not seem that
it falls within the definition of "tainted property".  It may have been
brought to the site with a view to being used in or in connection with the
cultivation of the cannabis, but it was not.  It was not put into service or
turned to account or expended or consumed in use (see definition of "use" in
Concise Macquarie Dictionary).  There is no evidence to show that it was
derived or realised directly or indirectly by a person as a result of the
commission of the offence.  The application for forfeiture of it is refused.

27.  The same considerations apply to the fertiliser claimed by Mr Ottens to
be his.  But if I am wrong about the question of use, I am not satisfied that
that fertiliser is tainted property in any event.  There was clear evidence
from Mr Ottens, which I accept, that it was purchased by him and that it was
not tainted property within the meaning of the definition.

$7,000 - CASH
28.  As to the sum of $7,000 in cash, it was found in Mr Helps' vehicle when
the police searched it at the site of the cannabis plantation.  Mr Helps
claims no interest in it.  The agreed facts as between the Crown and Mr Ottens
are that a co-offender gave the $7,000 to Mr Helps to pass on to Mr Ottens, it
being a one eight share of the proceeds of sale of some cannabis which had
been previously harvested.  Mr Ottens entered into the enterprise with a view
to obtaining a one eight share of the proceeds of sale of the cannabis
harvested from the site.  The application for the forfeiture of that sum of
money is not opposed by anyone appearing before the Court on this application.
Although the information about it is brief, it nevertheless satisfies me that
that property was derived or realised, directly or indirectly, by Mr Helps as
a result of the cultivation of cannabis, the subject of the indictment in this
case.  There is no reason to believe that any particular person not
represented before the Court has an interest in that cash, but, if it is
forfeited, anyone who claims such an interest may make an application under
s7.

LEGAL ISSUES
29.  I now turn to consider other matters of law particularly in relation to
discretion.  The Act confers upon the Court, and any other exercising
jurisdiction under it, a discretion as to whether an order for forfeiture is
be made in respect of the property, the subject of the application (s5).
Before proceeding to consider forfeiture, the Court must first be satisfied
that the property, the subject of the application, is "tainted property"
within the meaning of the Act and that it is tainted in relation to the
serious offence for which a person has been convicted (or deemed to have been
convicted).  The Director bears the onus of satisfying the Court in respect of
those matters.  It is unclear as to whether the proceedings for forfeiture are
criminal or civil in nature.  The Act is silent on the point.  In some cases
the answer to that question may be important, for example, in relation to the
standard of proof.  It was not an issue in this case, presumably because the
facts which had to be ultimately found were not much in dispute on the
material before the Court reduced to that which is normally admissible as
evidence in a Court of law.  There is no suggestion that those rules are in
any way abrogated by the Act in relation to forfeiture except, perhaps, by s64
(as to other remedies see s11(6) in Part III and numerous provisions in Part
IV - "Restraining Orders").  Whatever may be the case, I have no reasonable
doubt as to the findings in respect of which the Director bears the onus, but
that may not be the standard which needs to be applied.

30.  Whatever may be the nature of proceedings seeking a forfeiture order, and
the consequences flowing therefrom, there is no doubt that such an order is
penal in character (per Lord Diplock in Cuthbertson (1981) AC 470 at 484; and,
for example in Ward, Miles and Graham (1987) 33 A Crim R 60 at p66 and
Cheatley v R (1972-1973) ALR 907), and thus the Act is to be strictly
construed.

31.  In the case of Helps, he was sentenced at the same time as a number of
co-offenders.  It was mooted during the proceedings on sentence that the
forfeiture application would be made, but his counsel applied for an
adjournment of that application so as to seek further instructions.  There was
no application for adjournment of the sentencing proceedings until the
application had been heard.

32.  As to Ottens, the plea on sentence and application for forfeiture were
heard together and both adjourned for consideration.  It is not part of the
scheme of the Act that an application be heard by the sentencing Judge
(s55(2)).  The deferral of the hearing of the application until after
sentencing is clearly envisaged and sanctioned by s5(1), in that the relevant
period is 6 months after conviction or the like.

33.  During the course of the hearing of the application concerning Ottens, he
placed in evidence an affidavit going to the ordinary use to which the various
items of property were put, hardship and other matters considered to be
relevant to those proceedings. Counsel for the Director obtained leave to
cross-examine on the affidavit, during the course of which he unsuccessfully
sought to have Ottens answer questions directed to his culpability for the
offence.  It was put on behalf of the Director that the Court could weigh in
the balance, in the exercise of its discretion in the forfeiture application,
not just hardship, but also the degree of culpability of the offender.  That
is correct, but it did not seem right to me that in circumstances where the
offender and the Director had agreed on the facts as to culpability for the
purpose of sentence, and such facts had been put to the Court, that the
Director should be permitted to endeavour to adduce admissions from the
offender going beyond those agreed to on sentence, in proceedings having to do
with forfeiture.  I can see no warrant for that course of conduct.  It is
unfair.  Apart from anything else, privilege against self-incrimination may
arise.  Offenders resisting a forfeiture application, potentially exposed to
cross-examination with that objective, may be deterred from giving evidence
relevant to forfeiture, and thus are effectively denied the opportunity, given
by the statute, of endeavouring to protect their property interests and
putting forward hardship.  No relevant authority was cited on behalf of the
Director and I have been unable to find any.  Once my tentative views were
made known, in the course of argument, counsel for the Director desisted from
pursuing the matter, quite properly in my view.  The Court may well be
embarrassed by proceeding to sentence on one view of culpability, but being
presented with another in relation to forfeiture.  That can not be right.

34.  The relationship between sentence and forfeiture, if any, which may be
taken into account by the Court is not an easy matter. One thing is abundantly
clear, and that is that a sentence must not be increased so as to allow room
for the refusal or mitigation of a forfeiture order, nor do I think that the
sentence should be mitigated because it is intended that a forfeiture order be
made.  But the Court may have regard to any hardship that may reasonably be
likely to be caused to any person, including the offender, by the proposed
order (s5(1)(b)(ii)).  In Tarzia (1991) 52 A Crim R 102 at 107, the Court of
Criminal Appeal of Western Australia held that the length of sentence and
severity of the penalty imposed for the offence to which the application for
forfeiture relates is relevant to the hardship which the offender will suffer
if a forfeiture order is made.  With respect to the Court, it appears to have
gone a little too far, since the matter to be taken into consideration is only
the hardship that may reasonably be likely to arise.  Otherwise I agree.  I
bear in mind the sentence of imprisonment just passed upon Mr Ottens.  The
Court also pointed out that an order for forfeiture is an additional
punishment, and that it was appropriate to assess the effect of a forfeiture
order in the light of the punishment already imposed.  It went on to adopt the
view expressed in earlier cases (see at p109) that the "hardship" to the
offender must be something other than the hardship which inevitably flows from
the loss of the property itself.

35.  In Taylor v Attorney-General (1991) 55 SASR 462 at 474 Debelle J
reviewing the cases on this question, suggested the following considerations
may be relevant:
    - "the value of the property;
    - the nature of the offender's interest in the property;
    - the value of the drugs involved or the size of the crop;
    - whether the property was acquired with the proceeds of the
    sale of drugs;
    - the utility of the property to the offender;
    - the length of ownership of the property;
    - the extent to which the property is connected with the
    commission of the offence;
    - the fact that forfeiture is intended as a deterrent; and
    - the interests of innocent third parties."

36.  His Honour proceeded:
    "Although the legislation provides some safeguard for the
    interests of third parties, the exercise of the discretion is
    a further safeguard and may be of great importance when
    hardship would be caused to persons who are not offenders or
    innocent third parties with interests in the property.  As
    Allen J observed in R v Bolger (supra) (at 128): "If, for
    example, the forfeiture order would be in respect of a family
    home, the hardship which would follow to innocent persons who
    lived in the home, albeit that they had no interest in the
    property in law or in equity, would be material.  Likewise it
    would be material if the tainted property were a car which
    the wife of the offender could not do without if she weren't
    able to get her children to and from school.  A hardship
    might not be decisive.  But clearly it would be relevant to
    the exercise of the discretion."

    The infinite variety of circumstances which might arise leads
    to a natural disinclination to suggest what other factors
    might affect the exercise of discretion.  But, broadly
    speaking, in the exercise of its discretion, the court will
    have regard to the circumstances of the offence, the extent
    to which the property was connected with the commission of
    the offence, the seriousness of the offending, the value of
    the property in relation to the offence and the likely
    consequences of an order for forfeiture upon the offender and
    others who might be affected by the order.

    Where land is being used for growing cannabis, regard might
    not necessarily be had to the value of the land on which it
    was grown, but regard might be had to the consequential
    hardship on the offender or his family, for example, if they
    were to be left homeless or in penury.  The exercise of
    discretion might be affected by the size of the crop grown on
    the land or the frequency of offending.  If partnership
    assets are used, regard might be had to the interests of
    innocent partners.  If a motor car is involved, and that is
    the family motor car, it might be material if the wife of the
    offender could not do without it: see also Olsson J in
    Attorney-General v Meyer (supra).

    At the end of the day it is necessary to have regard to
    whether the order of forfeiture would be severely
    disproportionate to the circumstances of the offence and the
    nature and degree of the offending.  The fact that there is
    some disproportion is not necessarily a reason for refusing
    to order forfeiture: that would fail to recognise
    Parliament's intention to create an additional deterrent.
    However, if forfeiture were to result in unnecessary
    hardship, having regard to the circumstances of the offence,
    a court might be justified in refusing the order."

37.  I respectfully agree with those views.

38.  In some earlier cases it was suggested that the Court was restricted to
taking into account the matters referred to in s5(1) before proceeding to
exercise its discretion, but the preferred view, with respect, is as expressed
by Williams J in Anderson (1992) 61 A Crim R 382 at 384 and the cases there
referred to.  The discretion is very wide, but of course it must be exercised
judicially, including after bearing in mind the objects of the legislation.
Confining myself to forfeiture (other considerations apply to pecuniary
penalty orders) those objects include incapacitating the offender by depriving
him of the physical and financial ability, power or opportunity to continue to
engage in the proscribed conduct; eliminating unjust enrichment; deterring the
offender and others from crime by undermining the ultimate profitability of
the venture, and, with all those considerations in mind, to protect the
community by curtailing the circulation of prohibited items.  Rehabilitation
of the offender seems to be a matter of little weight.  (Fisse, Fraser and
Coss (eds) - The Money Trail - Law Book Company 1992 Chapter 6 "Forfeiture,
Confiscation and Sentencing" by Professors Freiburgh and Fox; and Professor's
Freiburgh's article "Criminal Confiscation, Profit and Liberty" (1992) 25 ANZJ
Crim 44).

39.  But that is not the end of it.  In Lake (1989) 44 A Crim R 63 Kirby P,
with whom Lee CJ and McInerney J agreed at pp68 and 69, said:
    "The inevitable and intended consequence of the operation of
    the Act is that it will have a punitive consequence.
    However, the Act must operate and have its deterrent effect,
    according to its terms.  Those terms give relief if the
    sentencing Judge considers that, in all the circumstances,
    hardship would be occasioned by an order under the Act.
    Therefore the fact that allowing hardship will, to that
    extent, reduce the deterrent impact of the Act, is simply
    part and parcel of the ordinary operation of the Act,
    according to the language which Parliament has used.  It is
    not a frustration of that operation but a fulfilment, as
    Parliament intended".

SUMMARY - ORDERS
HELPS' MOTOR VEHICLE
40.  For the reasons given I am satisfied that the vehicle is tainted
property; its use in connection with the offence was minor; it was acquired
and ordinarily used for innocent purposes; Mr Helps' daughter may reasonably
be likely to suffer hardship following the making of the order.  In the
exercise of discretion the application for forfeiture is refused.

SCOBIE AND SON PTY LTD - INTEREST AS LESSEE - THE PASTORAL LEASE
41.  For the reasons given I am satisfied that the land comprised in the lease
is tainted property; its connection with the offence was significant; it was
acquired and developed and ordinarily used over many years for innocent
purposes.

42.  Hardship may reasonably be likely to arise on the part of the company,
beyond that caused by the forfeiture of the lease itself, arising from reduced
price upon sale by the mortgagee and thus not reducing the debt of the company
to the level which might be expected if the sale was at fair market value.

43.  Hardship may reasonably be likely to arise on the part of Mr and Mrs
Ottens by reason of the reduction in the value of their shares, both in Scobie
Pty Ltd and Nectar Pty Ltd, and increased liability on personal guarantees for
loans.

44.  It is not suggested that Mrs Ottens is other than an innocent party.
Indeed, counsel for the Director said that he did not wish to cause her any
hardship if it could be avoided.  Bradley Ottens' expectations may reasonably
be likely to be dashed.  Mr Ottens' place of residence and vocation will be
lost to him and the burden of the sentence will be increased.

45.  This was a very serious offence of its type, but in all the circumstances
Mr Ottens should not be obliged to suffer such draconian consequences.

46.  In the exercise of discretion, the application for forfeiture of the
pastoral lease is refused.

JOHN DEERE TRACTOR
47.  The evidence does not show that it is tainted property.  The application
for forfeiture is refused.

FRONT END LOADER
48.  It is shown to be tainted property, but its ordinary use was innocent and
its use in connection with the offence minimal.  In the exercise of discretion
the application is refused.

FERTILISER
49.  None of it is shown to be tainted property.  The application is refused.

$7,000 - CASH
50.  That property was derived from the cultivation of the cannabis. No other
considerations arise.  It is forfeited to the Territory.