Dpp v Le [2002] ACTSC 100

1. Under s 19 of the Proceeds of Crime Act 1991 property, namely a Honda Prelude motor vehicle registered number (ACT) YLR170, be forfeited to the Territory.

1. This is an application under s 14 of the Proceeds of Crime Act 1991 (the Proceeds of Crime Act) for an order for the forfeiture of property that is alleged to be tainted property in respect of the conviction of the respondent on 19 November 2001 for an offence of possession of a traffickable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to another person.

2. The conviction followed a trial by jury. The offence occurred on the night of 5 January 2001. The respondent was observed by police to be driving in a suspicious manner late at night in a suburb named after a distinguished Australian jurist. When the police vehicle began to follow the respondent, he threw something from the car into the street. It was found to be a plastic bag inside a flyer for pizza. Inside the plastic bag were 23.936 grams of powder of which 9.26 grams were heroin, a concentration of 38.7 per cent. Also in the driver's seat of the car was a knife. Although the respondent claimed that the heroin was for his own use, the jury clearly rejected his claim. The verdict was consistent with the evidence that the heroin was part of 28 grams collected by the respondent in Marrickville the previous day from an unidentified dealer at an unidentified address for $3,500. The respondent had reverted to the use of heroin following a previous conviction for supplying the drug and an uncompleted sentence to periodic detention. By the time of the offence on 5 January 2001 he was again addicted to the drug.

3. As I found when sentencing on 20 November 2001, the only way the respondent could have financed his habit was by selling in Canberra part of what he purchased in Sydney from time to time at prices below Canberra street prices.

4. The car being driven by the respondent on 5 January 2001 was a Honda Prelude, 1992 model, registered number YLR170.

5. At the trial, the respondent said that it was the Honda Prelude that he had driven to and from Sydney the day before in order to obtain the heroin which was within the car immediately before he threw it out and was arrested. In the present proceedings he gave evidence that it was not the Honda Prelude but another vehicle, a Ford Telstra, 1982 model, which he had used for that purpose. He also claimed that the Honda Prelude had been purchased for $16,500, the whole of which he had borrowed in order to purchase the vehicle. His case was that hardship would be imposed upon the persons from whom he had borrowed if the vehicle were subject to a forfeiture order.

6. The respondent's evidence was that he had borrowed the whole of the purchase monies from members of his family. In particular, he borrowed $13,000 from an elder sister, Thi Le Hoang. She was sometimes referred to in the evidence as Hoang. I shall refer to her as Ms Hoang. He said that the loan was made partly by $5,000 in the form of cash and $8,000 by way of bank cheque. He said that he did not remember the name of the man from whom he had purchased the car nor the bank on which the cheque was drawn. The car was registered in his name on 19 June 2000. Police evidence confirms that its value is about $18,000.

7. The respondent said that he borrowed the remaining $3,500 from his parents. It came from their bank accounts.

8. The respondent was asked, without objection, whether there was any expectation on the part of his parents or sister about repayment of the monies he borrowed. He replied, "No, I don't think so." He may have misunderstood.

9. He said that he had no intention of distributing or selling the heroin found in his possession. He was asked whether he had provided anyone with any heroin earlier that night and replied, "No, I don't think so." The respondent appeared to me to understand that question. In his evidence the respondent also denied that he had been "driving around delivering".

10. He claimed that he did not remember when he arrived back in Canberra from the trip to Sydney on 4 January 2001. With regard to the loan of $13,000, he said that the sister "dropped by my house and gave me the money and the cheque". Later he said that he received this money from the sister at the house where they all lived. This discrepancy, and similar discrepancies in his evidence, may be explained by his lack of English. He said that he intended to sell the car in order to give the money back to the sister or, to give the car itself to the sister.

11. In cross-examination the respondent said that the car he had driven to Sydney the previous day, the 1982 Ford Telstra, was used in his business for the purpose of picking up and delivery of goods for repair and spare parts. He said that he bought the Honda Prelude, a 1992 model, after seeing it at the Belconnen Car Fayre. The seller came to his place with the papers. The seller gave him no receipt.

12. Further in cross-examination the respondent said that there were no terms as to repayment of the $13,000 borrowed from Ms Hoang. He had not repaid her anything during the two years from the time of the loan until his arrest although, according to him, she asked him to do so from time to time. He said that he would spend all his money on drugs, but she did not know that. The respondent also said that his parents, who are pensioners, were on extended holiday in Vietnam. They had not worked since their arrival in Australia some ten years before. They had paid their airfares to Vietnam from their savings.

13. Making every allowance for his imperfect English, the respondent was an unsatisfactory witness on several issues. First, I do not believe his account of driving to Sydney in another and much older car to purchase the heroin which was thrown from the Honda Prelude. That finding weakens his credibility on other issues.

14. Ms Hoang gave evidence. She said that she lent the respondent $5,000 in cash to buy a car. She also obtained a cheque from the husband of her sister for $8,000 which she handed over to the respondent. She said that the $5,000 she lent in cash was from a sum of $10,000 which she had withdrawn from her savings bank account on 1 March 1999. She kept the other $5,000 for household expenses. She herself owns a 1992 Honda vehicle. She said that her purpose in lending the money to her brother was so that he could buy a better car and drive around, get a job and thus repay her. The circulatory of this reasoning is obvious. However, that is not to say that it does not genuinely represent the thoughts of the witness. Ms Hoang also said that the credits in her bank account at the time came essentially from the sale of a house that she had owned at Nicholls and which had been sold on 22 March 1999. She was unable to explain other credits of $3,000 paid into her account on 19 February 1999 and $1,200 paid on 1 March 1999. She had no means of income other than a pension for herself and her children.

15. At one stage during her evidence Ms Hoang said that her intention in withdrawing the $10,000 from her account was to purchase a car for her daughter who attended school at Ainslie, although the rest of the family lived at Weston. Later she decided to lend half of it to her brother.

16. Ms Hoang said that she had on several occasions asked the respondent to repay her or to sell the car, but he never did so. She acknowledged that he must pay her in due course.

17. Mr Van Luat Bui (Mr Bui) is married to a sister of the respondent who did not give evidence. He confirmed in his evidence that in 1999 he withdrew $8,000 by way of cheque from his savings account, which he handed to his wife to hand to her sister, Ms Hoang. Later she repaid $5,000 of that loan. He said he is "not anxious" for the repayment of the $3,000 still owing. Mr Bui is in regular employment. He said that he saved the $8,000 from his earnings as a chicken boner initially with Perfect Poultry and recently with Young Chicken.

18. Another sister of the respondent Hue Thi Le (Lily) gave evidence. She said that in 1999 she was looking after her parents' bank accounts. They were in Vietnam where they usually go for their holidays. The respondent wanted to purchase a car and asked if she could arrange a loan from the parents. She telephoned them and they agreed. She withdrew $3,500 from her parents' account as authorised and gave it to the accused for him to buy the car.

19. She said that her parents asked the accused for the money back. Her understanding was that if the accused did not pay they would enforce the loan.

20. The only income of the parents is from a pension.

21. All persons appear to live in government housing.

22. No application was made on behalf of any of the members of the respondent's family under s 21 of the Proceeds of Crimes Act for a declaration that any of them has an interest in the property subject of the application for the forfeiture order. The application is resisted by the respondent on the basis that hardship would be occasioned to the members of the family who made the loan by the making of the forfeiture order, since the only property available as a source for repayment of the monies lent is the Honda Prelude car itself.

23. Mr Hovan for the respondent submitted that the Honda Prelude is not tainted property within the meaning of s 4 of the Proceeds of Crimes Act.

24. "Tainted property" is defined in s 4 to include "property used in, or in connection with, the commission of the offence".

25. Section 19(6) of the Proceeds of Crimes Act provides as follows:

"Where -

(a) the DPP applies for a forfeiture order against particular property in reliance on a person's conviction of an offence; and

(b) evidence is given, at the hearing of the application, that the property was in the person's possession at the time of, or immediately after, the commission of the offence;

then -

(c) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence - the court shall presume that the property was used in, or in connection with, the commission of the offence; or

(d) in any other case - the court shall not make a forfeiture order against the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence."

26. It was established to my satisfaction by the evidence given at the hearing of the application that the Honda Prelude vehicle was in the possession of the respondent at the time of and immediately after the commission of the offence. There was however also some evidence given which tended to show that the property was not used in, or in connection with, the commission of the offence. That was the evidence of the respondent that he had not used that vehicle when he drove to Sydney to collect the heroin and drove back to Canberra with the drug on board. However, even if I were to accept the respondent's evidence on this matter (and I must say s 19(6) makes it difficult to know where the onus lies), the very fact that the heroin was in the vehicle during the hour or so that the respondent was driving around the streets, satisfies me that the property was used in or in connection with the commission of the offence. The offence was not the actual supply of the drug to another person, but the possession for that purpose. It is established to my satisfaction on the balance of probabilities that the Honda Prelude was used by the respondent both in and in connection with the possession of the heroin for the purpose of sale or supply to someone else.

27. The remaining question then is whether the Court ought exercise its discretion so as to refuse to make the order, having regard, according to the terms of s 19, to any hardship that may reasonably be expected to be caused to any person by the operation of a forfeiture order, the use that is ordinarily made or was intended to be made by the respondent of the Honda Prelude, and the gravity of the offence concerned.

28. In the circumstances, I am satisfied that the offence is one of seriousness for the reasons I stated in my remarks on sentence which I will not repeat.

29. The evidence supporting the case for the respondent suggested that the respondent had purchased the vehicle to assist him in obtaining employment or carrying out his business as a repairer of small electrical domestic items. His ability to carry on a business of that nature, and the fact that he had been doing so at the time he was sentenced on a previous occasion, was reflected in the sentence imposed by way of periodic detention. It is very clear that the trust placed in the respondent on that occasion was misplaced and the opportunity given to him, with the apparent financial support of his relatives, was lost by reason of his return to heroin addiction.

30. Undoubtedly, there will be some hardship to those persons who lent him the money for the purchase of the Honda Prelude. However, I have to take into account the looseness of the arrangements. If there was a legally enforceable loan, it appears to have been on terms that the loan was repayable on demand. Despite the statements by Ms Hoang that the respondent was asked to repay the monies lent by her, I am not satisfied that her requests amounted in law to a demand for repayment such as to make the loan enforceable. Her evidence was simply too vague for that conclusion to be drawn. Similarly, with regard to the evidence of Lily about the loan by or on behalf of the parents, I am not satisfied that there has been a lawful demand for repayment sufficient to make the loan repayable.

31. In any event, I note that the respondent is due for release on parole in February 2003. Even if a forfeiture order is not made, I do not expect that the vehicle would be available for providing funds for the repayment of the loans before then. There is no evidence of any arrangements that the respondent has made, or intends to make or might make for sale of the vehicle whilst he is in prison. Furthermore, the lengthy parole period was intended, as I stated at the time of sentence, to allow for a period of supervision during which the respondent might seek to rehabilitate himself in society. It is necessary to refer again to the claims made on his own behalf that he is capable of employment and of returning to a business in the nature of that he once carried on. He still has another vehicle which can be used for that purpose, subject to necessary repairs and maintenance. In other words, the loan may be repaid by him if he is sufficiently motivated to earn the money to repay it.

32. In general terms also, I think that it is important to observe that the arrangements between the respondent and his family for the funding of his purchase of the Honda Prelude appear to be much in the nature of an informal arrangement between members of a close family. The obligation to repay would seem to me to be more in the nature of a moral obligation than a legal one, although it is not necessary to make a firm determination on this issue. Nevertheless, it is a factor to be taken into account. In other words, the members of the family may yet receive repayment of the money lent, depending on the ability of their brother and son to raise himself from the depths into which he has fallen.

33. I make the forfeiture order sought in the notice of motion dated 9 April 2002. I order the respondent to pay the costs of the applicant.

I certify that the preceding 33 (thirty-three) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the applicant: ACT Director of Public Prosecutions

Dates of hearing: 29 July 2002 and 3 September 2002