Anderson, Re [1992] QSC 171

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The L:l.w Courts, George Street, BRJSBANE. Q. 4000 Tel. (07) 227.4360 (Copyright in thi£ transcript is vested in the Cro-wn. Copies thereof must not be made or sold without the written authority of the Director • State Reporting Bureau.) r·~-::~;:::.:::-:::~· ~ .. ~:·~- ~-: :::·i:_·~~- ~-~ ·.:~-~1 ; j ....:.:. ..:: .:.~~ ~- :.: :~ ·. ·' ·~ -::: : .. ·~< ·~· ..:. ·~· I [),:;(~:;o? 7 I j !7 d-./ ' --.........._~-~,.-· ,.,..,~-~ •• ~··~ ,_,_.. •. • >1 ~ ;oru.: 'l. .. .:..;< •• ,,.:cc.....,_,u...,.,......_.. ~~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 210 of 1991 IN THE MATTER OF PART II OF THE CRIMES (CONFISCATION OF PROFITS) ACT 1989-1990 and IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF PROSECUTIONS FOR A FORFEITURE ORDER AGAINST PROPERTY OF DAVID ALVAN ANDERSON BRISBANE .. DATE 22/05/92 /! /, ~ ... -~ / .. - .•. 1 -- 1 of 17 -- 220592 JUDGMENT HIS HONOUR: I have prepared reasons for judgment which I publish. For those reasons I propose making an order in terms of para 2 of the notice of motion but, otherwise, dismissing the notice of motion. In the light of the order that I proposed, Mr Callaghan for the respondent asks for an order for costs. It seems to me that it should be noted that the applicant is being successful with respect to para 2 of the notice of motion, and with respect to the land which is referred to in para 1 of the notice of motion, there was a concession by the respondent that it was tainted property and that the respondent had been convicted of a serious offence. In those circumstances, it was a question whether or not the Court would in the exercise of its discretion order forfeiture. For the reasons I have published, I have decided to exercise my discretion in favour of the respondent. Bearing all of those factors in mind and the circumstances of this particular case, I am of the view that the appropriate order to make with respect to costs is to say that there be no order as to costs. My orders will therefore be: I make an order in terms of para 2 of the notice of motion; no order as to costs. 2 10 20 30 40 50 60 -- 2 of 17 -- ) w ).,0 IN THE SUPREME COURT OF QUEENSLAND Motion No. 210 of 1991 Before Mr. Justice G.N. Williams IN THE MATTER of Part II of the Crimes (Confiscation of Profits) Act 1989-1990 - and - IN THE MATTER of an Application by theDirector of Prosecutions for a Forfeiture Order against Property of DAVID ALVAN ANDERSON JUDGMENT - G.N. WILLIAMS J. Delivered the 22 ..p day of M~ 1 1992 CATCHWORDS: Criminal law - sections 6 and 8 Crimes (Confiscation of Property) Act 1989-90 - land being offender's principal place of residence - not acquired with proceeds of crime - male aged 55 on invalid pension - hardship - forfeiture not ordered in exercise ofdiscretion. Counsel: D. Lynch for Applicant C. Callaghan for Respondent Solicitors: Director of Prosecutions for Applicant Andrew Boe & Company for Respondent Hearing date: 8th May, 1992 -- 3 of 17 -- IN THE SUPREME COURT OF QUEENSLAND Motion No. 210 of 1991 IN THE MATTER of Part II of the Crimes (Confiscation of Profits) Act 1989-1990 - and - IN THE MATTER of an Application by the Director of Prosecutions for a Forfeiture Order against Property of DAVID ALVAN ANDERSON JUDGMENT - G.N. WILLIAMS J. Delivered the 22."'9 day of 1 1992 The respondent, David Alvan Anderson, was convicted on his own plea of guilty to a series of offences against the provisions of the Drugs Misuse Act 1986-1990. There was one count of producing cannabis sativa in a quantity which exceeded that specified in the Third Schedule to the Act, one count of possessing cannabis sativa in a quantity which exceeded the amount specified in the Third Schedule to the Act, two counts of possession of cannabis sativa, one count of having a set of scales in his possession which were used in connection with the commission of a crime defined in the Act, and finally a count that he had in his possession a quantity of agricultural equipment used in connection with the commission of a crime as defined in the Act. There was a further charge on the indictment against him alleging that he had a Holden Jackeroo motor vehicle in his possession which had been used in connection with the commission of a crime as defined in the Act, but a Nolle Prosequi was entered with respect to that offence. The production was -- 4 of 17 -- 2 said to have occurred between 6th December, 1990 and 6th April, 1991 at Chambers Flat and each of the other offences was alleged to have occurred there on 6th April, 1991. On 21st August, 1991 the respondent was sentenced by Dowsett J. on the production charge, and on the charge of possessing a quantity of cannabis in excess of the quantity specified in the Third Schedule to imprisonment for a period of three years with a recommendation that he be eligible for parole after serving nine months On the possession of cannabis charges he was sentenced to imprisonment for periods of one month and one year respectively. On the count relating to the possession of the scales he was imprisoned for a period of one month and on the count relating to the possession of agricultural equipment for a period of six months. All the sentences were to be served concurrently. Thus the head sentence was imprisonment for a period of three years with a recommendation that he be eligible to apply for parole after serving nine months. In the course of his sentencing remarks Dowsett J. described the offences as "very serious", and observed that it was "impossible to come to any conclusion other than that this operation was being conducted for commercial purposes". The learned sentencing judge accepted the submission that the respondent was induced to enter into the cultivation of cannabis in order to assist in repaying a debt that he owed to another who was also involved in the illicit drug trade. He recorded that at the time the respondent was aged 55 and had no previous convictions. He also mentioned the fact that the respondent had incurred "substantial financial difficulty over the years" and -- 5 of 17 -- 3 that such circumstances had contributed to an extent to the commission of the offences. The Director of Prosecutions has now applied to the court for orders pursuant to ss. 6 and 8 of the Crimes (Confiscation of Property) Act 1989-1990 that certain property of the respondent be forfeited to the Crown. Paragraph 1 of the motion refers to the land which is Lot 9, Rossmore Road, Chambers Flat, and para. 2 refers to certain specific items of personal property (which might generally be described as agricultural property). Section 6 of the Act provides that where a person has been convicted of "a serious offence" an application may be made to the court for a "forfeiture order in respect of particular property". Section 8(1) then provides that the court may order that the property be forfeited to the Crown "if it is satisfied that the property is tainted property". The expression "tainted property" is extensively defined in s. 3, but it is sufficient for present purposes to say that it includes property used in connection with the commission of an offence or property derived or realised, directly or indirectly, as a result of the commission of the offence. "Serious offence" is defined to include any indictable offence. Section 8(2) is of importance for the present application, and it provides: "In considering whether to make an order under sub-s. ( 1 ) in respect of particular property, thecourt may have regard to (a) the use that is ordinarily made, or had been intended to be made, of the property; (b) any hardship that might reasonably be thought likely to be caused to any person by the order; (c) the gravity of the offence concerned." -- 6 of 17 -- 4 The respondent, on the hearing of the application, did not dispute that he had been convicted of a "serious offence", and it was also conceded that both the land and specified chattels were "tainted property"; the cannabis was produced (grown) on Lot 9. Further, the respondent did not dispute that the chattels particularised in the motion should be forfeited to the Crown in accordance with the provisions of s. 8. However any order for the forfeiture of the land was strenuously resisted. Clearly the court has a discretionary power to make a forfeiture order as sought. The provisions of s. 8 were considered by Macrossan C.J. in Re M.L. Ashworth (unreported, No. 164 of 1991, 18th July, 1991); there he had occasion to say: "It is clear that there is a very full discretion residing in the court which will call to be exercised before a forfeiture order is made. To decide whether such an order should be made, the Court is empowered to have regard to the use made or intended to be made of the property in question, any hardship that may be likely to be caused by the making of the order and thegravity of the offence concerned." To similar effect are remarks of Lee J. in Re P. J. George (unreported, No. 163 of 1991, 16th December, 1991). There His Honour observed that the legislature had conferred "the widest possible discretion on the court on the question whether or not a forfeiture order should be made in a particular case", and he went on: "The discretion conferred by s. 8 ( 1) is perfectly general in nature and is not circumscribed by thethree factors mentioned in s. 8(2) of the Act to which the court may also have regard, as well as to all of the circumstances of the case." That is also the view taken by Judges in other jurisdictions where there is comparable legislation (cf. R. v. Hadad (1989) 16 N.S.W. L.R. 476 where Mcinerney J. in delivering the judgment of -- 7 of 17 -- 5 the Court of Criminal Appeal referred at 481 to the "very wide discretion" conferred on the court.) Here it was the submission of counsel for the respondent that the court, given the relevant circumstances, would decline, in the exercise of its discretion, to make the forfeiture order sought with respect to the land. In consequence it is necessary to refer to the facts which are relevant to the exercise of that discretion. They are to be derived from what was put before the sentencing judge, the affidavits, and the oral testimony of the respondent. On April 6th, 1991 police officers went to the property at Rossmore Road, Chambers Flat and saw a number of sheds and a caravan. The respondent was located in one of the sheds. It was accepted by the police that the respondent was living in the caravan on the property. At the request of the police the respondent opened one of the sheds and therein they saw a number of bags of cannabis and a number of cannabis seedlings. There were also cannabis plants which appeared to be drying on a tray. The police then inspected the largest shed, and therein observed a great number of cannabis plants growing. The respondent informed the police that he had been growing the plants for "three to four months". In the course of interviews on the property and later at the police station the respondent indicated that his purpose in growing the plants was to provide himself with marijuana which he used to obtain relief from asthma attacks. In all the police found a total of 581 cannabis plants growing on the property. Photographs taken by the police of those plants were admitted as an exhibit on this application. -- 8 of 17 -- 6 Some 5.8 kilograms of cannabis was found in the shed and that was the basis of the major possession charge. Other smaller quantities, including seeds, were found and these gave rise to the other possession charges. Before the sentencing judge the prosecutor conceded that there were palm trees growing on the property and that there were signs that it was being used as a legitimate garden or plant nursery. It was also conceded that the respondent was in receipt of an invalid pension. Statements made by defence counsel at the time of sentence are now supported on this application by evidence from the respondent. He spent many years as a heavy equipment operator and/or crane driver on major construction sites throughout Australia until in about 1969 he started his own crane operating business in Canberra. It appears to have been successful until adversely affected by his divorce in 1976 and the recession in 1979. He sold the business and his Canberra properties which left him with moneys and assets worth some $200,000.00. Thereafter the respondent remarried and started an interstate and local trucking business working out of Brisbane. A matrimonial home was purchased at Kingston; it was later sold. Mechanical problems with a number of vehicles forced the closure of that business in about 1982; the assets of the business were sold. In about that year he purchased the subject land at Chambers Flat, and also started a caravan repair business. That business ended in failure in about 1984, and about that time he began experiencing health problems which have resulted in his becoming entitled to the invalid pension. Generally he has been suffering -- 9 of 17 -- 7 from asthma, very high blood pressure, and arthritis. He invested savings on the stock market but those were lost in the 1987 crash. He sold out those remaining assets and was able to buy a bulldozer for about $12,000.00. In about March 1983 a further matrimonial home was purchased at Beenleigh, and it was sold soon after that marriage ended with a separation in about August 1984. The proceeds of that sale enabled him to pay out the mortgage on the land at Chambers Flat. From about May 1987 he lived on the land at Chambers Flat in a caravan. His initial intentions were to develop a nursery on that property and he planted a number of palms and trees. The plants had not matured sufficiently for sale by the time of his arrest. The shed in which the marijuana was growing was constructed by the respondent himself in 1986-7; it was built with a view to moving his caravan into it. In about August 1990 he grew a few marijuana plants for his own use, but the shed was not modified to accommodate the large crop until December 1990. In 1990 the respondent sold a vehicle to a person named Tweedy and, putting it briefly, that resulted in his becoming indebted to Tweedy in the sum of about $2,000.00. He had no money to pay out that debt and the respondent asserts that it was at Tweedy's suggestion that he commenced growing the large crop of marijuana with a view to obtaining funds to permit him to pay out that debt. The defence contention was that the crop of marijuana was seized by the police before the respondent had the opportunity to sell any of it. Counsel for the applicant expressly indicated that the Director was not in a position to allege that the -- 10 of 17 -- 8 respondent had made any specific profit from the production of the marijuana. The land in Rossmore Road has an area of 10 acres 1 rood 23.3 perches and the Certificate of Title shows that it is presently unencumbered; the respondent is the sole owner of the fee simple. The Director caused to the land to be valued by a registered valuer employed within the Public Trust Office, and he placed a value of about $99,000.00 on it. Though there was no evidence that the respondent had obtained any profit from the marijuana crop, the arresting police officer has sworn that the present street value of one pound of cannabis was between $3, 000. 00 and $3, 500.00 if sold in bulk pound lots. Given the number of plants found on the property on 6th April, 1991, it can be seen that the respondent stood to make a substantial profit if the crop was sold on the street. I should also mention that the police officers found a sum of money totalling $16,500.00 in a motor vehicle on the property but it has not been the subject of any charge, nor has any formal allegation been made that it was the proceeds of sale of marijuana. In consequence, notwithstanding some vague references to it in the affidavit of Barton, it is not established that that amount of money was obtained from the sale of marijuana. It would appear from the material that some time later this year the respondent will be released on parole. His health is such that it is unlikely that he would be able to gain employment in a competitive work place. Whilst in custody he has been able to do some light cleaning work but it is doubtful if he could hold down such a job given his state of health. He has been on -- 11 of 17 -- 9 sickness benefits since about 1987, and a medical report confirms his condition. The respondent's evidence is that upon release he would like to return to the property at Chambers Flat and resume residing in the caravan there. It is his hope that he would be able to supplement the pension by developing a plant nursery on that land. Even if it was not a successful business venture it would give him something to do and assist him financially. If the property was forfeited then the respondent would have no home to go to on his release. The respondent's principal assets, apart from the land, are a Holden Jackeroo motor vehicle valued at $5, 000. 00, an old Mercedes motor vehicle valued at $2,000.00, a front end loader valued at $10,000.00, a caravan worth $300.00, and miscellaneous cash in the sum of $56.00. His main liabilities are an indebtedness of $210.00 to Bankcard and rates of the order of $1,200.00. The respondent says that he would like to use the front end loader to prepare some parts of the land to take seedlings and then sell it to help finance the development of the plant nursery. It would ultimately be necessary for the respondent either to upgrade the caravan or convert one of the larger sheds into an acceptable residence. It can thus be seen that after many years of hard work the respondent has little to show by way of assets. Certainly it cannot be said that he has obtained assets through the illicit drug trade, or that he is living a lifestyle above his station because he has made money out of selling drugs. Clearly the land in question was not acquired through the proceeds of any criminal activity; the respondent has demonstrated how the land was -- 12 of 17 -- 10 acquired free of encumbrance many years prior to the commission of the subject offences. Before turning to the authorities I would record that it is my view that it is in the interests of society that a person, having served his sentence for a criminal offence, be allowed to return to a normal life in society so far as is possible. That will ordinarily mean that such a person return to a place of abode, and have the capacity to become a self supporting member of society. In the wider sense society does not gain if, through the punishment it imposes on a person for criminal activity, it deprives that person of the capacity, after release, to become reasonably self sufficient. Legislation of the type under consideration is now to be found in the United Kingdom and most Australian states. Speaking of the English counterpart Lord Lane C.J. said in R. v. Dickens (1990) 2 Q.B. 102 at 105: "It is plain that the object of the Act is to ensure so far as is possible, that the convicted drug trafficker is parted from the proceeds of any drug trafficking which he has carried out. The provisions are intentionally Draconian." One also finds that epithet used by Olsson J. in Attorney-General v. Meyer (1989) 51 S.A.S.R. 234. Most of the decided cases in Australia have involved a motor vehicle; the Crown has sought an order for the forfeiture of a motor vehicle used by a person in possession of drugs to get himself to the point where a transaction took place (cf. R. v. Bolger (1989) 16 N.S.W. L.R. 115, R. v. Hadad (1989) 16 N.S.W. L.R. 476, Meyer, and R. v. Ward, Marles and Graham (1989) 1 Qd. R. 194). Some of the statements in those decisions, particularly -- 13 of 17 -- 11 in relation to hardship, are of relevance to the present situation ..The courts in Lake (1989) 44 A.Crim.R. 63 and George were concerned with applications for the forfeiture of land which was not the offender 1 s place of residence. But observations therein are of relevance for present purposes. Generally those cases make it clear that a court may, in considering the discretion to order forfeiture, have regard to the time during which the subject property has been in the offender 1 s possession, the use that has been made of the property throughout that time, and the value of any improvements made by the offender to that property from legitimate sources. They also establish that hardship flowing from the mere operation of the Act will not be sufficient to constitute "hardship" for purposes of s. 8(2)(b). I agree with the observation of Mcinerney J. in Hadad at 482 where he said: "It must be pointed out, of course, there would always be hardship stemming from the provisions of the Act itself, but, in my view, that is not the hardship about which the Act speaks and to which a court is entitled to have regard." Forfeiture of the land in question here would result in the respondent losing his principal place of residence, although there is no house currently erected thereon. Particularly in view of the fact that the subject land was legitimately acquired by the respondent some years before he commenced his illicit activities, and was used over that period as his place of residence and place of business, the following observations are helpful in determining how the discretion reposed in the court should be exercised. -- 14 of 17 -- 12 Allen J. in delivering the principal judgment of the Court of Criminal Appeal in Bolger said at 126: "In the present case it was argued for the Crown that the court, in considering hardship, should wholly disregard, in respect of the offender, the actual deprivation of property, or interests in property, which would be effected by the forfeiture order. Thus in the case of land which had been used to grow cannabis no regard should be paid to the value of the land which would be forfeited. Regard could be paid however, to any consequential hardship - for example that the offender or his family would be left homeless or in penury. In my opinion, however, the loss to an offender of the value of the property is a loss "following the making of the order" and I see no justification in the language of (ii) or in the scheme of the legislation for disregarding that hardship. The loss of the value of the forfeited property, if a forfeiture order is made, could be a hardship which is disproportionate to the offence which was committed. Would the court order forfeiture of a very valuable tract of bushland which was unused by the offender other than for the growing of one single cannabis plant? .... But the severity of the penalty imposed on sentence can well bear upon the gravity of the hardship which the offender will suffer if a forfeiture order is made. That this is so is readily demonstrated by example. Suppose that some offender is an elderly invalid pensioner who used his home in connection with the commission of the offence. Suppose the court imposes a pecuniary penalty which has the practical effect that he has to sell up all his assets apart from his home. Would the fact that he has lost all those other assets not be relevant to the hardship which he would suffer if he lost his home as well, leaving him both homeless and without investment income to supplement his pension?" In Meyer Olsson J. referred to an unreported decision of Prior J. which involved, inter alia, land on which the offender's residence was situated. (Attorney-General (S.A.) v. Cooper, 28th September, 1988). In that case the offender, who had been convicted of producing cannabis on a large scale, owned two properties. On one his home was situated; the other lot was vacant. Prior J. was satisfied that the bulk of illicit crop had -- 15 of 17 -- 13 been raised on the vacant land, though both had been involved in the commission of the offence. He took the view that, as a proper exercise of discretion, it would be appropriate to order forfeiture of the vacant land but not that on which the offender's home was situated. Such considerations led Olsson J. in Meyer at 240 to say: "At the other end of the connection between the property and the prescribed offence may be so tenuous and ephemeral and the making of an order of forfeiture so Draconian and fraught with hardship that an exercise of discretion in favour of a forfeiture would be unthinkable. One need but consider, for example, the possibility of forfeiture of a long-standing matrimonial home which, unknown to the spouse of the offender, had fleetingly been used as a venue of a single drug sale transaction as a possible illustration of the latter." In Lake at 68 Kirby P., after referring to the submission that the property did not represent a place or residence to the respondent, went on to say: "It is true, that if a person's home is forfeited, that could create a particular hardship of the kind to which the Act refers." To similar effect is the observation of Lee J. in George: "A distinction may be drawn between the loss of property which has been in the family for a long time including a matrimonial home used for many years, and a property which is owned for a short time only." (Cf. also Director of Public Prosecutions v. Milienou (1991) 22 N.S.W.L.R. 489.) Considering the facts of this case in the light of those judicial comments, I have come to the conclusion that a forfeiture order ought not be made with respect to the land at Rossmore Road, Chambers Flat. It was not land acquired to any extent through illegal activity on the part of the respondent. He had used it for a number of years prior to the commission of -- 16 of 17 -- 14 the offences in question as his principal place of residence, and that was the use ordinarily made of the land. Further, for the reasons I have given, I am of the view that forfeiting the property would create hardship of a kind contemplated by s. 8(2)(b) of the Act. It is also my view that the sentences imposed constitute adequate penalty for the offences committed and that in the light of those sentences the hardship which the respondent would suffer if a forfeiture order was made would be out of proportion to the gravity of the offences committed. In all of the circumstances I will make an order in terms of para. 2 of the Notice of Motion forfeiting the specific items of personal property therein described, but otherwise the Notice of Motion will be dismissed. -- 17 of 17 --