Director of Public Prosecutions v Atkinson [2011] NTSC 73

 

PARTIES:                                         DIRECTOR OF PUBLIC PROSECUTIONS

 

                                                         v

 

                                                         GARY WAYNE ATKINSON

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          32 of 2008 (20807026)

 

DELIVERED:                                   28 September 2011

 

HEARING DATES:                           31 August and 1 September 2011

 

JUDGMENT OF:                              BARR J

 

CATCHWORDS:

 

CRIMINAL PROPERTY FORFEITURE – Application for restraining order in relation to ‘crime-used’ residential property – judicial discretion to restrain property – exercise of discretion where property ‘crime-used’ – alternative consideration as to whether restraining orders in relation to respondent’s residence would result in disproportionate prejudice to the respondent

 

Criminal Property Forfeiture Act s 10, s 10(2), s 11(1), s 36A, s 41(2), s 43, s 43(2), s 43(2)(a), s 44, s 44(1), s 44(1)(a), s 44(3), s 50(3), s 96, s 97

Misuse of Drugs Act s 5, s 34(3), s 36A

Sentencing Act s 5(4)(b)

 

 

Jones v Dunkel (1959) 101 CLR 298; RPS v R (2000) 199 CLR 620, applied.

 

Burnett & Ors v Director of Public Prosecutions and Anor [2007] NTCA 7;

DPP v Dickfoss [2011] NTSC 04, considered.

 

REPRESENTATION:

 

Counsel:

    Applicant:                                     T Anderson

    Respondent:                                  W Piper

 

Solicitors:

    Applicant:                                     Office of the Director of Public Prosecutions

    Respondent:                                  Pipers

 

Judgment category classification:    B

Judgment ID Number:                       Bar1108

Number of pages:                             24


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Director of Public Prosecutions v Atkinson [2011] NTSC 73

No 3 of 2008 (20807026)

 

 

                                                     BETWEEN:

 

                                                     DIRECTOR OF PUBLIC PROSECUTIONS

                                                         Applicant

 

                                                     AND:

 

                                                     GARY WAYNE ATKINSON

                                                         Respondent

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 28 September 2011)

 

[1]       The applicant seeks various restraining orders under the Criminal Property Forfeiture Act, including an order restraining the respondent’s home unit at 6/16 Coronation Drive, Stuart Park, being Unit 6, Lot 6852 Town of Darwin (“the Unit”).

[2]       A restraining order affecting the Unit was first made on 7 March 2008.  That order was set aside on 5 February 2009 on the application of the applicant under s 50(3) Criminal Property Forfeiture Act.  In its place the parties agreed to a restraining order affecting the Unit which was expressed to be “made on an interim basis pursuant to the CPFA and the inherent jurisdiction of the Court, until further order.”  The Unit has been the subject of an interim restraining order since that time. 

[3]       The application made in February 2009 has been amended on several occasions to incorporate applications to restrain additional property belonging to the respondent, but the most recent version, described as “Amended Application” and filed 6 June 2011, still seeks restraining orders in respect of the Unit.  At the hearing of that application before me, the applicant pressed for restraining orders, as distinct from interim restraining orders.

[4]       Restraining orders are sought not only in relation to the Unit but also for personal property including cash, vehicles and bank accounts.  The respondent concedes that restraining orders should be made in respect of all property other than the Unit, and so these Reasons will deal only with the contest over the Unit. 

[5]       The restraining order is sought on two separate bases: first, that there are reasonable grounds for suspecting that the Unit is “crime-used” property,[1] second, that the respondent’s conviction on 26 February 2009 of the offence of possession of a traffickable quantity of methamphetamine, further or alternatively his conviction on 25 October 2010 of the offences of possession of a traffickable quantity of methamphetamine and possession of tainted property (cash) could lead to the respondent being declared to be a drug trafficker under s 36A of the Misuse of Drugs Act.[2]  If a restraining order is made in relation to the Unit on either basis, then the Unit becomes subject to forfeiture under s 96(1) or s 94(1) of the Criminal Property Forfeiture Act. Restraint is thus a significant step towards forfeiture.  

[6]       The respondent’s counsel concedes that the Unit was “crime-used”.  The respondent’s counsel also concedes that the convictions referred to, in the context of his previous criminal history, could lead to his being declared to be a drug trafficker under s 36A of the Misuse of Drugs Act

[7]       The respondent contends and the applicant accepts that the Court has a discretion under s 43(2) Criminal Property Forfeiture Act as to whether it makes a restraining order, even where the Court is satisfied on the balance  of probabilities (and the respondent owner admits) that the property the subject of the application was “crime-used”.  Similarly it is agreed that the Court has a discretion under s 44(1) of the Act even in circumstances where the respondent has now been convicted and the applicant has a clear entitlement to a declaration that the respondent is a drug trafficker.

[8]       The Court’s discretion is indicated by the use of the word “may” in s 43 and s 44 of the Act, which is to be contrasted with the use of the seemingly imperative “must” in s 96 and s 97 of the Act.  The existence of the discretion was referred to by the Court of Appeal in Burnett,[3] and discussed in greater detail more recently by Mildren J in Dickfoss.[4]  In Burnett the Court explained that the legislation does not direct the court as to the manner or outcome of the exercise of the court’s discretion under s 43 and s 44 of the Act.  In Dickfoss Mildren J held obiter that the discretion is effectively unfettered.[5] 

[9]       Notwithstanding the concessions by the respondent referred to in par [6] above, in exercising my discretion I propose to examine the evidence as to the nature of the respondent’s offending and the use to which the Unit was put by him in the course of such offending.

Offending in March 2008

[10]     On 3 March 2008 police executed a search warrant at the Unit and found a plastic container containing a total of 6.59 grams of methamphetamine in 11 separate clipseal bags, each of which contained between 0.5g and 1g of methamphetamine.  The plastic container containing the drugs was found hidden behind a clothes dryer in the laundry of the Unit.

[11]     Police also found a set of digital scales and a quantity of unused small clipseal bags located inside a vacuum cleaner in the laundry cupboard of the Unit.

[12]     Police also found $5,000 cash divided into five bundles of $1,000 each, wrapped with rubber bands and placed inside a clipseal bag located in a hiding place under the hand basin in the en suite bathroom of the main bedroom.

[13]     The respondent admitted in his formal interview with police that the 11 clipseal bags contained “speed” which he said he both used and sold.  The respondent said that he sold it to people around the bars, he said: “… not for money, just basically for my own habit”.  He also admitted that he had put it into separate clipseal bags: “basically bagged it up to sell and for my own use”.

[14]     The thrust of the respondent’s answers to police[6] was that he did not sell methamphetamine to make a monetary profit.  The money received from sales was used to recoup the original purchase cost (and thus enable further purchasing) but the ‘profit’ was the surplus methamphetamine for the respondent’s own use.

[15]     The respondent told police that he had paid $3,000 for half an ounce of methamphetamine. One ounce is approximately 28.35 grams.[7]  If the respondent paid $3,000 for half an ounce, he would have received 14 grams or close to it.  He said that he sold half gram bags for $200 and full gram bags for $300.  Based on the respondent’s admissions as to the cost to him and the sale prices achieved by him, I calculate that if he sold the 14 grams in half-gram bags, he would have sold 28 half gram bags for $200 each and received $5,600.  If he had sold the 14 grams in one-gram bags at $300 per bag, he would have received $4,200.

[16]     In relation to the amount of $5,000 cash, the respondent said that is was approximately 50% from drug sales and approximately 50% his “personal money” (I assume that the reference to “personal money” meant untainted money).

[17]     The evidence establishes to my satisfaction on the balance of probabilities that in March 2008 the respondent used the Unit, specifically those areas of the Unit referred to in par [10] to par [12] above, to (1) store and conceal methamphetamine intended for sale and for his own use, in the way he described to police; (2) weigh and prepare gram and half-gram quantities of methamphetamine to be sold in small clipseal bags; and (3) to keep and conceal cash which he received from the sale of methamphetamine and/or was keeping for the purpose of buying further methamphetamine.  The respondent took advantage of the privacy and security of his Unit to commit the forfeiture offence of unlawful possession of a traffickable quantity of methamphetamine on 3 March 2008.

[18]     On 23 February 2009, at his trial for offences with which he was charged as a result of the police search in March 2008, the respondent gave evidence on a voir dire about statements which he said had been made to him in a police vehicle by one of the investigating officers when travelling from the Unit to the police station shortly after the respondent’s arrest.  The respondent alleged that the following things were said to him:- 

“Make it easy on yourself.  We’ll go back, make a record of interview and we’ll give you bail and we won’t seize your unit and your car”.[8] 

[19]     The respondent explained in his evidence that he had “heard of stories on the news and newspapers that if people get busted for drugs they … lose their unit, lose their car, lose their assets in general.”  He said in evidence that he had participated in a formal interview with police because of the inducement contained in the police officer’s statement. 

[20]     I conclude that, prior to 3 March 2008, the respondent may well have known that he was putting his interest in the Unit at risk by using the Unit in connection with drug-related offending.  After 3 March 2008 he clearly understood the risk. 

[21]     On 24 February 2009, the respondent pleaded guilty to unlawful possession of methamphetamine on 3 March 2008.  He admitted the circumstance of aggravation that the amount of the drug was a traffickable quantity, namely 6.15 grams.  This was the same methamphetamine referred to in par [10] above, notwithstanding the slight difference in quantity.  The respondent pleaded not guilty to the unlawful possession of $5,550 alleged obtained from the commission of an offence against s 5 of the Misuse of Drugs Act knowing it to be so obtained.[9]  The Crown did not pursue that tainted money charge against the respondent.[10]

[22]     On 26 February 2009 the respondent was sentenced to a term of imprisonment of two years and six months for possession of a traffickable quantity of methamphetamine.  The sentence was backdated to 12 January 2009 to reflect time spent in custody.  The sentence was suspended after he served four months in prison, and the operational period of the suspended sentence was two years and six months from the date of his release.  The respondent was therefore to be released from prison on or about 12 May 2009.  The operational period of his suspended sentence would thus have been from 12 May 2009 to 12 November 2011.

Offending in January 2009

[23]     On 12 and 15 January 2009, while the respondent was awaiting trial for the offences committed on 3 March 2008, police executed further warrants for the search of the Unit.

[24]     For the purposes of the search on 15 January 2009, police used a drug detector dog.  On that occasion, police found 49 grams of an amphetamine type substance in the circuitry of the microwave oven in the kitchen of the Unit.  Police found an additional 35 grams of an amphetamine type substance in a sealed plastic container hidden in the external unit of the split system air-conditioning.  Police also found a considerable quantity of cash: $17,000 in a speaker unit, and $19,500 concealed in the same external unit of the split system air conditioning as the 35 grams of amphetamine.   

[25]     In October 2010 the respondent was found guilty by a jury on four counts arising out of his offending on 15 January 2009.  One of the four counts was possession of 70.4 grams of methamphetamine, a traffickable quantity of that drug.  The sentencing remarks make it clear that a total of 70.4 g of methamphetamine was located at the Unit, some inside a microwave oven and some inside an air-conditioner accessible from an outside balcony to the Unit.[11]  There is no issue before me that this was the same methamphetamine referred to in the previous paragraph, notwithstanding the difference in quantities.  The value of the drug was $15,000 to $30,000, depending on purity and whether the drug was sold to a dealer all at once.  However, if sold in one-gram lots, it could have realised somewhere between $28,000 and $84,000.[12]

[26]     Another of the four counts on which the respondent was found guilty by the jury in October 2010 was possession of $36,500 in cash obtained from the commission of an offence against the Misuse of Drugs Act, knowing that the property had been so obtained.  This amount represented the total of the $17,000 found in a speaker unit and the $19,500 concealed in the external air conditioning unit situated at the Unit.  The conclusion of the sentencing judge was that the jury's finding of guilty was consistent with the money being the proceeds of the sale of drugs to persons unknown.

[27]     The respondent thus once more used the Unit in January 2009 in connection with the commission of forfeiture offences: the unlawful possession of a traffickable quantity of methamphetamine, and possessing tainted property, namely the cash obtained from the commission of an offence against s 5 Misuse of Drugs Act.

[28]     On 25 October 2010 the respondent was sentenced to an aggregate term of imprisonment of six years for his offending in January 2009, with a non-parole period of three years and six months.  The sentence and non-parole period were backdated to reflect time spent by the respondent in custody.  An order was made that the sum of $36,500 be forfeited to the Crown pursuant to s 34(3) Misuse of Drugs Act.

Events of April 2010

[29]     A further warrant was executed at the Unit on 6 April 2010, when 0.36 of a gram of methamphetamine was seized, together with $19,590 in cash.  No charges were laid with respect to the drugs and cash found that day.  Of the total cash amount, $1,300 was concealed under the carpet of the main bedroom and $17,700 was in a small safe situated in the floor of the main bedroom wardrobe and fixed by bolts to the floor slab underneath.

[30]     Counsel for the applicant submits that I should find that the $19,590 represented the proceeds of the sale of drugs to persons unknown and therefore that the Unit was yet again “crime-used” in April 2010 in that it was used in connection with the commission of the forfeiture offence of possessing tainted property.  It is an offence under s 5 Misuse of Drugs Act to unlawfully supply a dangerous drug to another person, and s 6(1) Misuse of Drugs Act makes it an offence to possess property obtained directly or indirectly from the commission of an offence against s 5.[13]  The maximum penalty under s 6(1) is imprisonment for 25 years.  The offence clearly qualifies as a "forfeiture offence".  The fact that the respondent was not charged or convicted in relation to the $19,590 found at the Unit on 6 April 2010 is not relevant, because, pursuant to s 11(2)(d) Criminal Property Forfeiture Act, property used in connection with the commission of a forfeiture offence may still be "crime used" whether or not any person has been charged with or convicted of the relevant forfeiture offence.   

[31]     There is no direct evidence (by electronic surveillance or eye-witness observation) that the respondent was selling or otherwise supplying drugs in the period leading up to 6 April 2010.  The respondent made no admissions that the cash found in the Unit had been obtained from the supply of any dangerous drug.  Nonetheless, because of (1) the respondent’s relatively recent criminal history as a seller or supplier of methamphetamine, (2) the fact that he was in possession of some methamphetamine on 6 April (albeit only 0.36 of a gram) and (3) the fact that he was not in employment and had not been in employment in the period leading up to 6 April 2010, it is open to infer that the $19,590 represented the proceeds of the sale of drugs unlawfully supplied by the respondent.  Significantly, the respondent has not explained in evidence in this proceeding how he came to accumulate or be in possession of the significant amount of cash found.  He has not denied that the money was obtained from the sale of drugs.  The respondent might have given evidence to prove a contrary or different position to the one in which the $19,590 represented tainted proceeds.  He did not.  In my view an inference should therefore be drawn that the $19,590 represented the proceeds of the sale of drugs, probably methamphetamine, unlawfully supplied by the respondent to persons unknown.  As Menzies J said in Jones v Dunkel (1959) 101 CLR 298 at 312:-

“ … where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference." [14]

 

[32]     I therefore find that the Unit was “crime used” in April 2010 when the respondent again took advantage of the privacy and security of his Unit to conceal cash in his possession which he had obtained from the unlawful supply of methamphetamine.

 

 

Forfeiture considerations

[33]     As explained in par [5], restraint is a significant step towards forfeiture.  The justification or purpose for which forfeiture is provided under the Criminal Property Forfeiture Act is stated in s 10 of the Act as follows:-

“The property (real or personal) of a person who is involved or taken to be involved in criminal activities is forfeit to the Territory to the extent provided in this Act to compensate the Territory community for the costs of deterring, detecting and dealing with the criminal activities.” (s 10(2))

“Crime-used or crime-derived property (real or personal) is forfeit to the Territory to deter criminal activity and prevent the unjust enrichment of persons involved in criminal activities.” (s 10(3))

[34]     Relevant to the costs of “dealing with” the respondent’s criminal activities, the applicant’s counsel tendered without objection a document dated June 2011 which stated the average daily cost of keeping a prisoner in Darwin Prison as $219.44.[15]  I assume that the average daily cost figure includes the very modest wages paid to the respondent for the cleaning work he carries out at the prison while serving his sentence.  The non-parole period for the respondent's present prison sentence is three years and six months, that is, 182 weeks or 1,274 days.  I therefore calculate that the cost to the community of the respondent’s incarceration will be approximately $280,000 in total.  The cost of incarceration is one of the many heads of costs for which forfeiture is intended to compensate the Territory community.

[35]     The basis for calculating the prisoner per day cost may be somewhat imprecise, and questions might legitimately be asked as to the inclusion of some of the components of the average daily cost figure.  There may be some unfairness to the respondent by the inclusion of a proportion of administration and management costs for the Department of Correctional Services and the Darwin Correctional Centre as costs of his incarceration.  Nonetheless, I propose to adopt the amount of $280,000 for present purposes, noting that there are many other significant “costs of … detecting and dealing with” the criminal activities of the respondent which have not been the subject of specific evidence before me.  These costs include the costs of police investigations of the respondent’s criminal activities, the costs of prosecuting the respondent, and the costs of administration of the criminal justice system involved in the respondent’s jury trial in June 2010.  

The respondent’s case

[36]     Mr Piper for the respondent argued nine grounds to justify the Court exercising its discretion not to restrain the Unit.  The grounds overlap to some extent, but for present purposes I set them out in the order argued by counsel:-  

1.        The Unit was legitimately purchased.  It was acquired with funds which were not crime-derived.  I note that this is conceded by the applicant.  The respondent contends that the Court should not lightly make any order which would deprive him of his unchallenged right to the full use and enjoyment of his property.

2.        The respondent has been fully penalised for his criminal offending by the sentences imposed.  General deterrence and special deterrence were taken into account as sentencing considerations and hence “included” in the sentences imposed on him.  Moreover, the loss of the Unit through forfeiture, arguably a significant mitigating factor, was not taken into account as a sentencing consideration under s 5(4)(b) of the Sentencing Act.

3.        The respondent has conceded the forfeiture of the balance of the property set out in the Amended Application.

4.        The respondent is 49 years of age and has no dependents.  He was seriously injured in a motor cycle accident in March 2008 which made him eligible for a Disability Support Pension.  One side of his face is paralysed and he has lost the ability to blink his right eye.  He suffers headaches and loss of balance.  Due to pain and right eye sensitivity, he sleeps poorly.  His capacity for gainful employment is significantly compromised[16] and, given his reduced earning capacity, he will probably never be able to earn and save enough money to acquire another home.

5.        The respondent is due to be released in July 2013 or at such time after that date as the Parole Board sees fit to grant parole.  At that stage he will be some 51 years old with little if any prospect of being able to earn enough to pay rental in the Darwin market.  Mr Piper has submitted that the average weekly rental for a two-bedroom home unit in Darwin is presently $338.  The respondent, who is in receipt of a disability support pension, would be eligible for Centrelink rental assistance of $58.20 per week.  This is said to give rise to a shortfall of $279.80 per week.  Further, based on evidence provided by Territory Housing,[17] the respondent would have to wait approximately 61 months for a one-bedroom pensioner accommodation unit to become available to him in Darwin.

6.        The Unit was not utilised in offending in any particular way in which any other house would not be used.  For example, it was not specially modified or adapted for the purpose of offending, as where hydroponic growing rooms are set up in residential premises.  Further, the extent to which the Unit was crime-used was minimal, in comparison to the situation where a warehouse or storage shed is given over entirely to the storage of stolen goods or to the manufacture, processing, storage, packing and even sale and marketing of dangerous drugs.

7.        Looking to the future, it would be a substantial benefit to the community if the respondent were faced with the deterrent effect of the possible loss of his home unit as an incentive not to re-offend.  Further, if he retained the home unit, there would be less financial pressure on him of a kind which might cause him to re-offend.  Further still, if he retained the home unit, he would not become a burden to the community in terms of his need for public housing.

8.        While the respondent has a significant offending history, such offending is not in the worst category.

9.        Forfeiture of the respondent’s residence is disproportionate, both in the lack of proportionality between the forfeiture offences and the value of the Unit (now worth approximately $370,000 to $390.000), and the lack of proportionality involved in the forfeiture of the whole of the Unit when only a small part of the Unit was used in connection with the forfeiture offences.  

[37]     I accept the facts and substantially accept the submissions based on those facts for the respondent’s grounds 1, 2, 4, 5 and 8.  There is no doubt that the respondent would suffer considerable hardship through the loss of the Unit, and the resultant obligation to pay rent for the rest of his life after his release from prison.  However, such hardship to the respondent may have very little influence on the exercise of my discretion.  Having regard to the objects and purposes of the Act,[18] the restraint (and ultimately the forfeiture) of the Unit is the almost inevitable consequence of the Unit being crime-used in the way it was in March 2008 and January 2009.  

[38]     With respect to the ground 5, it is unclear why the accommodation proposed for the respondent in the private rental market is a two-bedroom unit, rather than a one-bedroom unit or a studio unit.  Further, it is not explained why the amount of the disability support pension itself, as well as the amount of rental assistance, would not be  available to meet the respondent’s rental obligations.  I assume that the rental assistance is a supplementary allowance or benefit, and that it would not be expected that the entire amount of rental would be paid from that supplement without recourse to the pension itself.  Therefore I do not accept that it is valid to arrive at a shortfall calculated in the way the respondent has calculated.  Notwithstanding my comments, I am prepared to accept that the respondent would be hard-pressed to provide himself with standard quality rental accommodation in the Darwin market if his sole source of income after his release from prison were a disability support pension.   

[39]     The facts submitted for ground 3 may be correct, but while I acknowledge that the respondent’s concessions have reduced the length of the hearing, the applicant appears to have a strong case for the restraint and forfeiture of the balance of the respondent’s property.  Moreover some of the property which the respondent has conceded should be restrained was tainted property (cash) or crime-derived property.  I reject the matters raised in ground 3 as matters which I should take into account to any significant extent in the respondent's favour. 

[40]     As to ground 6, I accept that the Unit was not specially modified or adapted, and that only a small part of the Unit was crime used.  However, these matters are not surprising where only small spaces are required for preparation and storage of the type and quantity of drug concerned and for the safe keeping of money.  I do not find ground 6 compelling. 

[41]     As to ground 7, I agree it would be substantial benefit to the community if the respondent were deterred from offending in future.  Unfortunately, the possible loss of his Unit was not in the past an incentive not to offend or re-offend, given that he offended in February 2009 in the knowledge that he stood to lose his Unit if detected, and that he once more engaged in relevant offending conduct in or about April 2010.  The same or similar can be said in respect of the submission that, if the respondent retained his Unit, there would be less financial pressure on him to re-offend.  The fact that he was living in the Unit without having to pay rent in the past did not seem to take away the motivation to offend.

[42]     As to the third argument advanced as part of ground 7, it is true that if the respondent retained the Unit he would not become a burden on the community in terms of his need for public housing.  However, restraint of the Unit and the probable consequence, forfeiture of the Unit, would return to the community some of the costs of dealing with the respondent’s criminal activities and at least indirectly underwrite the cost of subsidised housing to the respondent at some future time.

[43]     As to ground 9, the respondent’s submissions as to lack of proportionality raise the issue of hardship touched on by me in par [37].  In Dickfoss,[19] Mildren J made the following observations in the course of considering the court’s discretion as to whether or not to make a restraining order:-  

"A court of equity has the power to refuse injunctive relief if that would result in substantial hardship and disproportionate prejudice to the defendant …. Bearing in mind that the Act is particularly draconian, and complex in its various provisions, in my opinion it would be open to the court to refuse an application where the forfeiture offence was minor, technical or trivial, and the value of the crime-used property was substantial so that there was significant disproportionality between the remedies sought and the purposes which the remedies sought to achieve, particularly if there would be significant hardship to the defendant or others with an interest in the property."

[44]     His Honour was referring to the court of equity taking into account disproportionality and hardship to a party in the court’s consideration of the balance of convenience on an application for an interlocutory injunction.  That is made clear from the context, where his Honour was referring to the making of freezing orders, and the footnoted reference to paragraph 21-380 of Meagher, Gummow & Lehane, Equitable Doctrines and Remedies, 4th edition.[20]

[45]     I do not consider that the stated principles relating to substantial hardship and disproportionate prejudice to a defendant in interlocutory injunction applications have particular relevance to the exercise of my discretion in the present case, where the respondent has been investigated and successfully prosecuted for two lots of offending and the outcomes are clear.  That is not always the case when application is made to the court for restraining orders under s 43(2) or s 44(1) of the Criminal Property Forfeiture Act.  In relation to crime-used property, the court’s discretion to restrain property may be enlivened simply if there are reasonable grounds to suspect that such property is crime-used.  The court’s discretion as to whether or not to restrain will often be exercised in circumstances where the offending (or detection of offending) is very recent.  The facts adverse and the facts favourable to a respondent owner of property may not have fully emerged.  The known facts may be the subject of substantial dispute.  A court would normally proceed cautiously before making a restraining order at an early or relatively early stage given that, as a matter of law, once the restraining order is made, forfeiture is difficult to avoid except in certain circumstances.[21]  In contrast, the hearing of the application in the present case has taken place at a relatively late stage.  The respondent now admits that the Unit was “crime-used”.  The relevant facts and circumstances of the offending in March 2008 and February 2009 are now either judicially determined or otherwise not in dispute.  

[46]     Notwithstanding the views expressed by me in the previous paragraph and in par [37], I propose to consider whether, if it were relevant, there would be disproportionate prejudice in the present case.  I therefore ask myself as a preliminary question: how should the Court compare the forfeiture offences with the value of the Unit so as to determine proportionality?  It is a question of fact and degree.  If I were considering only the offending in March 2008, where the value of methamphetamine sold would have been somewhere between $4,200 and $5,600, the amount of cash seized $5,000, and where the respondent was required to serve four months in prison, it might well be ‘disproportionate’ to make an order restraining the Unit.  I do not suggest that the March 2008 forfeiture offence was minor, technical or trivial – it was none of those.  I am simply examining how proportionality might impact on the discretion to make a restraining order in relation to a home unit worth $370,000 to $390,000.  

[47]     However, when I consider the offending in January 2009, where the value of the methamphetamine in the respondent’s possession was somewhere between $15,000 and $84,000 (depending upon purity and how it was sold),  where the amount of cash in the respondent’s possession obtained from the sale of methamphetamine was $36,500, and taking into account that the cost to the Territory community of dealing with the respondent’s offending will ultimately be very substantial,[22] I am of the view that there would be no lack of proportionality involved in making an order restraining the Unit.

[48]     It logically follows that if I take into account the combination of forfeiture offences committed in March 2008 and January 2009, there would be no lack of proportionality involved in making an order restraining the Unit.  

[49]     In relation to the offending in April 2010, my consideration of proportionality is somewhat different.  There may well have been some cost involved in the police investigation, but there were no costs of prosecution and no costs of administration of justice, because no charges were laid.  For the same reason, no incarceration costs are attributable to the Territory community’s dealing with the respondent’s conduct in April 2010. Moreover, the police search resulted in the seizure of $19,590, the restraint of which is not challenged by the respondent.  Therefore, notwithstanding my findings in par [31] and par [32], the events of April 2010 would have substantially less effect on the exercise of my discretion than the offending in March 2008 and January 2009.

Orders

[50]     I exercise my discretion under s 43(2)(a) and s 44(1)(a) of the Criminal Property Forfeiture Act to make a restraining order in relation to the Unit.

[51]     That is the only issue which I understand I am required to determine. 

[52]     I grant liberty to the applicant to file final orders for settling.  I will hear the parties in relation to costs.

-------------------------------

 



[1]    See s 43(2)(a) Criminal Property Forfeiture Act and definition of “crime-used” property in s 11(1) of the Act.

[2]    See s 44(1)(a) Criminal Property Forfeiture Act. 

[3]    Burnett & Ors v Director of Public Prosecutions and Anor [2007] NTCA 7; (2007) 21 NTLR 39 at 76 [73].

[4]    DPP v Dickfoss [2011] NTSC 04 at [91].

[5]    His Honour explained at [91] that the discretion may not be entirely unfettered because of s 44(3) of the Act.

[6]    As summarised in the affidavit of Evan Nathan Kelly sworn 7 March 2008, paragraph 7.

[7]    The exact conversion is 28.3495231 grams.

[8]    Transcript of proceedings 23 February 2009, page 25, part of the annexure marked “KTG3” to the Affidavit of Kathryn Gleeson affirmed 1 June 2011.

[9]    Transcript of proceedings 24 February 2009, pages 48 – 49, part of the annexure marked “KTG3” to the affidavit of Kathryn Gleeson affirmed 1 June 2011.

[10]   However, the respondent does not oppose a restraining order being made in this proceeding with respect to that cash amount.

[11]   Transcript of sentencing proceedings in the Supreme Court, 25 October 2010, annexure “KTG6” to the affidavit of Kathryn Gleeson affirmed 1 June 2011.

[12]  These values were stated by Mildren J. when sentencing the respondent on 25 October 2010.  No issue was taken in this proceeding in relation to the money amounts or how they were derived.

[13]   s 6(1) Misuse of Drugs Act reads as follows: “A person who receives or possesses property (other than a dangerous drug) obtained directly or indirectly from the commission of – (a) an offence against section 5 . . . knowing or believing the property to have been so obtained, is guilty of a crime.”

[14]   A statement quoted with approval by the joint judgment of the High Court in RPS v R [2000] HCA 3; (2000) 199 CLR 620 at [26].

[15]   Exhibit “A1” set out by way of partial breakdown the components of the daily total including Prison Daily Average Costs, Catering Costs, and the on cost of Corrections HQ and Department of Justice Corporate Management.  

[16]   See medical report of Dr Sankarayya dated 11 December 2008, annexure “H” to the respondent’s affidavit sworn 19 May 2011.

[17]   Exhibit “R1”.

[18]   See s 3, s 10(1)(b), s 10(2) and s 10(3) Criminal Property Forfeiture Act.

[19]   DPP v Dickfoss [2011] NTSC 04, at [91].

[20]   Par 21-380 referred to in footnote 60 in Dickfoss is under the sub-heading ‘Interlocutory Injunctions’.

[21]   See the basis for objection to restraint of crime-used property in s 63 Criminal Property Forfeiture Act ; also s 96 and s 97 of the Act and the discussion in DPP v Dickfoss [2011] NTSC 04, at [93] to [95].

[22]   Allowing $280,000 for the costs of incarceration as discussed in par [34] and par [35].