New South Wales Crime Commission v Hindmarch

Legislation

1. The Act relevantly provides: 27 Making of proceeds assessment order (1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A). (2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in: (a) a serious crime related activity involving an indictable quantity, or (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2A) The Supreme Court must make a proceeds assessment order against a person (other than an individual who is under the age of 18 years) if the Court finds it more probable than not that: (a) the person derived proceeds from an illegal activity or illegal activities of another person, and (b) the person knew or ought reasonably to have known that the proceeds were derived from an illegal activity or illegal activities of another person, and (c) the other person was, at any time not more than 6 years before the making of the application for the order, engaged in: (i) a serious crime related activity involving an indictable quantity, or (ii) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2B), (2C) (Repealed) (3) A finding of the Court for the purposes of subsection (2) or (2A) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity. (4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section. (4A) The reference in subsection (2A) to a period of 6 years includes a reference to a period that began before the commencement of that subsection. (5)-(12) (Repealed) 28 Assessment for proceeds assessment order - illegal activity proceeds (1) For the purpose of making an assessment for a proceeds assessment order under section 27 in relation to the proceeds derived by a person (in this section called the defendant) from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters: (a) the money, or the value of any interest in property other than money, directly or indirectly acquired by: (i) the defendant, or (ii) another person at the request, or by the direction, of the defendant, because of the illegal activity or activities, (b) the value of any service, benefit or advantage provided for: (i) the defendant, or (ii) another person at the request, or by the direction, of the defendant, because of the illegal activity or activities, (c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity, (d) the value of the defendant's property before and after the illegal activity or each illegal activity, (e) the defendant's income and expenditure before and after the illegal activity or activities. (2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant's property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant's property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities. (3) If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant's expenditure during the period of 6 years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the Supreme Court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities. (3A) The Supreme Court is not to take expenditure into account under subsection (3) to the extent that the Court is satisfied that it resulted in the acquisition of property the value of which is taken into account under subsection (2). (4) In making an assessment as provided by this section, none of the following amounts are to be subtracted: (a) expenses or outgoings incurred by the defendant in relation to the illegal activity or activities, Note. For example, in the case of an illegal activity involving the sale of drugs, in determining the value of the proceeds derived by the defendant from the sale of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs. (b) the value of any proceeds derived as agent for or otherwise on behalf of some other person (whether or not any of the proceeds are received by that other person). Note. For example, where the defendant is paid money for drugs in the course of a "controlled buy" but was acting merely as an agent or messenger for some other person (and gives the money to the other person), in calculating the proceeds derived by the defendant the amount given to the other person is not to be subtracted and the full amount is considered to have been derived by the defendant. (5) This section applies to, and in relation to: (a) property that comes into the possession, or under the effective control, of a person either within or outside New South Wales, and (b) proceeds acquired either within or outside New South Wales in relation to an illegal activity. (6) (Repealed) … 30 NSW Trustee and Guardian may discharge proceeds assessment order or unexplained wealth order (1) If: (a) the NSW Trustee and Guardian has, under a restraining order, taken control of an interest in property, and (b) a proceeds assessment order or unexplained wealth order has been made against the person entitled to the interest, the Supreme Court may, on application by the NSW Trustee and Guardian, make an order (in this section referred to as the later order) directing the NSW Trustee and Guardian to pay to the Treasurer an amount sufficient to discharge the debt created by section 27 arising under the proceeds assessment order or unexplained wealth order. (2) For the purpose of enabling the NSW Trustee and Guardian to comply with the later order, the Supreme Court may, by that order or by a subsequent order: (a) direct the NSW Trustee and Guardian to sell or otherwise dispose of a specified interest in property under the control of the NSW Trustee and Guardian, and (b) appoint an officer of the Court or any other person to execute any deed or instrument in the name of the person entitled to the interest and to do all acts and things necessary to give validity and operation to the deed or instrument.
2. The expression "illegal activity" in s 28(3) has the following meaning by definition in s 4(1) of the Act: illegal activity means: (a) a serious crime related activity, or (b) an act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth, or (c) an act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in New South Wales, would have been an offence referred to in paragraph (b).

Legal principles

1. In New South Wales Crime Commission v Vu [2012] NSWSC 129; (2012) 221 A Crim R 445 Johnson J said: [31] The first issue requires the Plaintiff to establish, on the balance of probabilities, that the Defendant was knowingly engaged in serious crime-related activity in the form of an offence that involves fraud, identified here as an offence under s.178BB Crimes Act 1900. [32] There was no issue before me that an offence under s.178BB Crimes Act 1900 was capable of falling within the general description in s.6(2)(d) CAR Act of "an offence that is punishable by imprisonment for 5 years or more and involves ... fraud" . This part of s.6(2)(d) refers generally to classes of crimes, without express reference being made to specific statutory provisions which create the offences. A wide variety of conduct is mentioned, including fraud, and an offence under s.178BB falls within that description: cf International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at 358-359 [73], 368 [105]. [33] In determining whether the Plaintiff has discharged the civil standard of proof on the first issue, the Court should take into account the gravity of the matters alleged against the Defendant: s.140(2)(c) Evidence Act 1995. Section 140(2) imports the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]-[47]; Director of Public Prosecutions (Cth) v Xu [2010] NSWSC 842; 202 A Crim R 279 at 285 [30]-[33]. [34] If the Plaintiff succeeds on the first issue, then it is for the Plaintiff to establish, on the balance of probabilities, for the purposes of s.28(3) CAR Act, the Defendant's expenditure during the period of six years before 28 October 2009. If the Plaintiff satisfies the Court on the civil standard of that expenditure, the Court is to treat that amount as proceeds derived by the Defendant from an illegal activity or activities, except to the extent that the Court is satisfied by the Defendant, on the balance of probabilities, that the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities. [35] The assessment task under s.28 is "an apparently comprehensive and complete regime", with the Court required "to treat" the amount of expenditure in the period as relevant proceeds: New South Wales Crime Commission v Kelaita at 577 [38] (see [29] above). The method of assessment under s.28(3) is not confined, in the circumstances of this case, to the proceeds of the alleged s.178BB offence. Section 28(3) provides for the Court "to treat any such amount as proceeds derived by the defendant from an illegal activity or activities". Attention is not confined to the alleged illegal activity which triggered the application in this case, being the alleged serious crime-related activity surrounding the use of false documents in support of the loan application. [36] The statutory scheme contained in the CAR Act provides its own mechanisms which, as Allsop P observed in New South Wales Crime Commission v Kelaita at 568 [12] (see [28] above), at times involve reversed onus provisions. … [75] Although the onus moves to the Defendant under s.28(3) to establish that expenditure was funded from income or money from other sources unrelated to an illegal activity or activities, with no obligation on the Plaintiff to adduce evidence on this issue, Mr Seagrave did undertake calculations to identify such a figure. Where evidence of this type may be analysed to indicate legitimate income, it is reasonable for the Plaintiff to identify such evidence to assist the Court in the process of assessment being undertaken under the CAR Act. … [79] The civil onus is on the Plaintiff to establish the Defendant's expenditure during the relevant six-year period, with the onus then lying upon the Defendant to satisfy the Court that any part of that expenditure was funded from income or money from other sources unrelated to any illegal activity or activities.

The hearing

1. At the hearing of the proceeds assessment order there was no appearance for the defendant. Nor was there any appearance for the defendant when the matter was before the Registrar on 3 June 2019, on which day the matter was fixed for hearing on 10 December 2019. The Registrar directed that the plaintiff advise the defendant of the hearing date and the orders made.
2. On 5 June 2019 the plaintiff sent a letter by registered post to the defendant informing him of the hearing date and what, in substance, the plaintiff would be seeking at that hearing. There was evidence that the defendant signed a receipt for that letter.
3. On 5 December 2019 the defendant rang Mr Spark at the plaintiff and left a voicemail message for him. He provided his new phone number and said that he had been served with a brief on that day. He then made a number of complaints about what had been done to him. He said that he had doctors' certificates concerning his medical conditions including anxiety and depression which were said to be a result of the legal proceedings. He said a number of times in that message that he had never had his day in court. Nevertheless, there was no appearance for the defendant at the hearing of the proceedings.
4. I was satisfied that he had been given appropriate notice of the proceedings and that the material relied upon by the plaintiff had been served upon him as long ago as 31 January 2019 as was attested to in an affidavit read at the hearing of Craig Sargent sworn 31 January 2019. In the circumstances, the proceedings were conducted in the absence of the defendant.
5. The defendant did not file any evidence in response to the summons or to the evidence served by the plaintiff.
6. The plaintiff relied principally on an affidavit of Ryan James Bull, senior forensic accountant at the plaintiff. Mr Bull calculated the expenditure of the defendant for the six years prior to the date of the filing of the summons in accordance with s 28(3) of the Act. He did so in reliance on the records of the plaintiff, on records obtained from the New South Wales Land Registry Services database, the SAI Global Property database, the Roads and Maritime Services of New South Wales database, documentation from the Australian Taxation Office, documents of the defendant seized at the execution of a search warrant at his home, and a reading of the transcript of the defendant's examination in the Court on 19 March 2015.
7. Mr Bull also inspected documents and relied on affidavits from various persons at organisations such as building societies, banks and motor vehicle dealers in an endeavour to ascertain what income was unrelated to illegal activities. Although the onus was on the defendant to establish that matter, this was no doubt done by Mr Bull in accordance with what Johnson J said in Vu at [75].

(a) Illegal activity

1. The first issue requires the plaintiff to establish on the balance of probabilities that the defendant was knowingly engaged in serious crime related activity. A certificate of conviction dated 4 July 2018 shows that on 9 June 2016 the defendant was convicted of the following offences: (a) supply prohibited drug of an amount greater than the indictable quantity (not cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), such offence having been committed on 13 January 2012 at Weston in New South Wales; and (b) supply prohibited drug of an amount greater than the indictable quantity (not cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), such offence having been committed between 20 September 2011 and 13 January 2012 at Weston in New South Wales and other places.
2. These offences constituted serious crime related activity under s 6 of the Act and, therefore, illegal activity under s 4, engaged in not more than six years before the filing of the summons.

(b) Expenditure

1. The second issue involves assessing the value of the proceeds derived by the defendant from these illegal activities. Section 28(3) effectively involves a deeming provision, with the result that the amount of the defendant's expenditure during the six year period prior to filing the summons is treated as proceeds derived by the defendant from the illegal activities.
2. Mr Bull ascertained that the defendant had purchased two properties within the six year period. On 17 November 2006 he settled on the purchase of a property at 17 Tenth Street, Weston at a purchase price of $167,000. Mr Bull concluded, from an examination of the documents and the affidavits of Michele Moloney from the Commonwealth Bank of Australia and Leo Pierroti of ING Bank, that the defendant paid the amount of $167,144.24 for the purchase of the Weston property. Further, a reading of the defendant's examination before this Court led Mr Bull to conclude that he was unable to say that the ING loan fund expenditure was funded from income unrelated to an illegal activity or activities for the purpose of s 28(3) of the Act.
3. The other property purchased by the defendant was 9 Park Street, Arcadia Vale which settled on 11 September 2009. A settlement sheet enabled Mr Bull to conclude that the defendant paid $125,975.74 for the purchase of the property. In addition, he paid $1,060 in legal costs and $4,460 in stamp duty. Mr Bull similarly concluded from reading the examination transcript of the defendant that he was unable to say that the Westpac loan fund expenditure was funded from income unrelated to an illegal activity or activities.
4. Mr Bull ascertained from material attached to the affidavit of Victor Manuel Gomes from Westpac that the total of repayments made by the defendant to Westpac between 9 October 2009 and 23 March 2012 totalled $41,920.10
5. When a search warrant was executed at the defendant's residential premises on 3 April 2012, one of the documents seized was what appeared to be a bill of sale dated 1 March 2008 describing the sale of an AC Cobra vehicle kit from John David Smit to the defendant for $15,000. Mr Smit swore an affidavit on 12 December 2018 in which he said that he sold the AC Cobra to the defendant for $15,000.
6. Another document seized at the execution of the search warrant was a receipt recording the sale of a Holden LJ Torana from Ronald Wayne Davies to the defendant dated 4 April 2008 for $2,500. Subsequently, Mr Davies swore a statutory declaration saying that he had sold the Torana, a Holden 1-tonne HX and a shipping container full of car parts to the defendant for $8,000 in cash.
7. On 28 February 2013 Chris Watson Motorcycles Pty Ltd produced documents to the plaintiff pursuant to a Notice to Attend and Produce Documents issued under s 29 of the Crime Commission Act 2012 (NSW), including a tax invoice showing the defendant's purchase of a Yamaha YZF-R1W from that company on 21 February 2007. The purchase price of $19,900 was reduced by $4,900 for a trade in of a 2002 Honda CRF450 motorcycle. The documents also included in a banking book a receipt of a CBA cheque for $15,000 from "Local League Cleaning Service - Sean Hindmarch".
8. Mr Bull inspected a number of records obtained from the RMS database which showed the following: (a) On 27 October 2008 the registration of a 1996 Harley Davidson FLSTC motorcycle was transferred to the defendant with a buyer declared value of $15,000 as at 29 October 2008. (b) On 8 November 2007 the registration of a 2001 Ford Falcon was transferred to the defendant with no buyer declared value. However, there was a buyer declared value of $1,750 at the date the defendant transferred the registration of this vehicle to another purchaser on 30 January 2008. In that way, Mr Bull concluded that the defendant paid no less than $1,750 for the Ford Falcon. (c) On 9 February 2009 the registration of a 1994 Royal Caravan Trailer was transferred to the defendant with a buyer declared value of $4,000. (d) On 23 March 2008 the registration of a 2004 Wholesale Box Trailer was transferred to the defendant with a buyer declared value of $780 as at 26 March 2008.
9. Other documents seized at the execution of the search warrant were receipts for the purchase of various goods and services between 29 March 2006 and 19 March 2012. These receipts totalled $77,413.75.
10. Mr Bull said that a number of the cash receipts could be explained by withdrawals of cash from bank accounts operated by the defendant. He completed an analysis of the cash receipts where he matched any cash withdrawals that were made from one of the defendant's bank accounts within two business days prior to the date of the cash receipt being issued. Upon creating a match he then added together the lesser amount of either the value of the cash receipt or the value of the cash withdrawal. He calculated the total value of those matches to be $7,513.45. In that way he calculated a net figure of $69,750.30 as the net value of cash receipts.
11. Mr Bull had regard to an affidavit of Armanda Helen Rozario of Newcastle Permanent Building Society which annexed account documents for account which I will refer to as "Account 1" showing withdrawals from that account totalling $310,709.25. Mr Bull then compared the withdrawals with deposits to Westpac and ING. He deducted those totals from the total amount of the debits. In addition, he deducted three amounts, being cheques already taken into account for the purchase of the Arcadia Vale property. Mr Bull concluded that the net withdrawals from Newcastle Permanent, taking those matters into account, was $62,343.11.
12. Mr Bull calculated withdrawals from a second account ("Account 2") at Newcastle Permanent in the sum of $2,878.48.
13. Mr Bull calculated repayments to a third account with Newcastle Permanent ("Account 3"). Those repayments totalled $2,327.29.
14. Mr Bull then considered the bank statements attached to Michele Moloney's affidavit to calculate withdrawals from the defendant's account with the CBA. The total withdrawals were $167,411.05. Mr Bull deducted from that figure matters that had already been taken into account for the purchase of motor vehicles and which went towards the purchase of the Weston property. He also credited three transaction reversals in the account. The net total of the withdrawals was $120,476.43.
15. The defendant had two loan accounts with ING. Repayments to those accounts totalled $20,951.96 and $180,677.30 after allowing for reversals and a rollover from an ING loan account.
16. The total of all of this expenditure was $864,394.95 shown as follows: • Purchase of the Arcadia Vale property 125,975.74 • Legal costs relating to the purchase of the Arcadia Vale property 1,060.00 • Stamp duty relating to the purchase of the Arcadia Vale property 4,460.00 • Repayments to Westpac Loan Account Number 037154 243493 41,920.10 • Purchase of the Weston property 167,144.24 • Purchase of the AC Cobra 15,000.00 • Purchase of the Torana and miscellaneous items 8,000.00 • Purchase of the Yamaha 19,900.00 • Purchase of the Harley Davidson 15,000.00 • Purchase of the Ford Falcon 1,750.00 • Purchase of the caravan 4,000.00 • Purchase of the trailer 780.00 • Net total value of the cash receipts 69,750.30 • Debits from Newcastle Permanent Account 1 62,343.11 • Debits from Newcastle Permanent Account 2 2,878.48 • Repayments to Newcastle Permanent Loan Account 3 2,327.29 • Debits from Commonwealth Bank Account 120,476.43 • Repayments to ING first Loan Account 20,951.96 • Repayments to ING second Loan Account 180,677.30 TOTAL 864,394.95

Proceeds unrelated to illegal activity

1. Mr Bull then went on to consider what expenditure which was shown in bank statements and other documents which might be considered to be expenditure funded from other sources unrelated to an illegal activity or activities. Mr Bull prepared a spreadsheet showing these amounts. It is not necessary to detail all of them. It is enough to note that the larger sums involved were from the sale of the property at 17 Tenth Street, Weston, the sale of various motor vehicles already referred to in calculating expenditure for their purchase, and rental income received from the Weston property.
2. The total of expenditure considered by Mr Bull to be unrelated to illegal activity was $474,258.02. Subtracting that figure from the total amount of the expenditure, Mr Bull concluded that during the relevant period the expenditure that was not funded from income or money from other sources unrelated to an illegal activity or activities of the defendant was $390,136.93.
3. In my opinion, the material upon which Mr Bull relied in carrying out his calculation of the expenditure in the first instance amply supported his conclusions to which I have referred. In relation to the smaller amounts for which credit is given to the defendant, I was not taken to documentary material providing the source for all of these amounts. However, strictly speaking, the onus was on the defendant to demonstrate that the expenditure was not funded from illegal activity. The total amount for which the defendant is given credit by Mr Bull is in his favour. I am satisfied that I should accept Mr Bull's expert evidence in that regard.

Transfer to the NSW Trustee and Guardian

1. The plaintiff seeks an order that the NSW Trustee and Guardian take control of a property owned by the defendant at 34 Ninth Street, Weston. The power to make such an order is found in s 10B of the Act which relevantly provides: 10B Contents and effect of restraining orders (1) … (2) The Supreme Court may, when it makes a restraining order (or during the time that it is in force) and if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies.
2. Under s 31 of the Act all the interests of the defendant in property are charged in favour of the Crown to the extent necessary to secure payment of the assessed amount whilstever it remains unpaid. Pursuant to s 30 of the Act the Court may, on the application of the NSW Trustee and Guardian, make an order, which includes an order for sale of any property held by it, to pay to the Treasurer an amount sufficient to discharge the debt created by the proceeds assessment order under s 27.
3. Particularly by reason of the absence of the defendant from the hearing of these proceedings, I consider it appropriate that an order should be made under s 10B so that a decision can be made in relation to a means of discharging the proceeds assessment order.

Conclusion

1. Accordingly, I make the following orders: 1. The defendant is ordered to pay to the Treasurer the amount of $390,136.93 by way of a proceeds assessment order under ss 27 and 28(3) of the Criminal Assets Recovery Act 1990 (NSW). 2. I order that the NSW Trustee and Guardian is to take control of the property described as Lot 22 of Section 24 in Deposited Plan 979187 known as 34 Ninth Street, Weston, New South Wales and registered in the name of Sean Robert Hindmarch. 3. The defendant is to pay the plaintiff's costs of the proceedings.

Amendments 20 December 2019 - Formatting issue DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019