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State of Queensland v Noble

 

[2018] QSC 59

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

State of Queensland v Noble [2018] QSC 59

PARTIES:

STATE OF QUEENSLAND

(applicant)

v

THOMAS ADRIAN NOBLE

(respondent)

FILE NO/S:

BS No 9532 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2018

JUDGE:

Crow J

ORDER:

  1. The application is dismissed.
  2. I will hear from the parties as to costs.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – FORFEITURE OR CONFISCATION – PROCEEDS OF CRIME, TAINTED PROPERTY OR CONFISCABLE PROPERTY – where the respondent was convicted on his own plea of guilty to 15 counts of serious animal cruelty – where the respondent was sentenced to 3 years imprisonment which was wholly suspended – where each offence is a confiscation offence within the meaning of the Act – where the State of Queensland applies to have the respondent’s property forfeited – whether the respondent’s property should be forfeited

Criminal Code (Qld), s 242

Criminal Proceeds Confiscation Act 2002 (Qld), s 146, s 151

Dickens [1990] 2 QB 102

Director of Public Prosecutions (Cth) v Jeffery (1992) 58 A Crim R 310

Elkateb v Lawindi (1997) 42 NSWLR 396

R v Anderson (1992) 61 A Crim R 382

R v Bolger (1989) 16 NSWLR 115; A Crim R 222

R v Galek (1993) 70 A Crim R 252

R v Noble; ex parte Attorney-General of Queensland [2017] QCA 86

R v Winand (1994) 73 A Crim R 497

Re George [1992] 2 Qd R 351

State of Queensland v Carl Richard Statham [2016] QSC 189

COUNSEL:

K Bradford (Sol) for the applicant

A S McDougall for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the applicant

Hannay Lawyers for the respondent

Introduction

  1. The respondent, Thomas Adrian Noble (Mr Noble), was convicted on his own plea of guilty to 15 counts of serious animal cruelty in breach of s 242 of the Criminal Code (Qld).  The offending occurred in the period between 20 August 2014 and 15 October 2014.  The maximum penalty for conviction of offence contrary to s 242(1) of the Criminal Code (Qld) is seven years’ imprisonment.  The crimes were heinous, they involved using live piglets, rabbits and possums to train greyhounds on the property owned by Mr Noble at 9 Wotan Road, Churchable.  On 6 September 2016, Judge Horneman-Wren SC, in the District Court of Queensland, sentenced Mr Noble to three years’ imprisonment which was wholly suspended for an operational period of five years.  Twenty-four days after the convictions[1] this application was made.
  2. This is an application for a forfeiture order under Chapter 3 of the Criminal Proceeds Confiscation Act 2002 (“the Act”).  The application is made pursuant to sections 146(2), 151 and 153 the Act for property to be forfeited to, and vest in the applicant, State of Queensland.  The property which is the subject of the application is located at 9 Wotan Road Churchable, described as Lot 5 Registered Plan 164607, registered solely in the name of the respondent, Thomas Adrian Noble (“the Churchable property”).
  3. Section 242 of the Criminal Code (Qld) provides:

242 Serious animal cruelty

  1. A person who, with the intention of inflicting severe pain or suffering, unlawfully kills, or causes serious injury or prolonged suffering to, an animal commits a crime.

Maximum penalty—7 years imprisonment.

  1. An act or omission that causes the death of, or serious injury or prolonged suffering to, an animal is unlawful unless it is authorised, justified or excused by—
  1. the Animal Care and Protection Act 2001; or
  1. another law, other than section 458 of this Code.
  1. In this section—

serious injury means—

  1. the loss of a distinct part or an organ of the body; or
  1. a bodily injury of such a nature that, if left untreated, would—
  1. endanger, or be likely to endanger, life; or
  1. cause, or be likely to cause, permanent injury to health.”
  1. The Schedule of Facts tendered at sentence for Mr Noble on 30 August 2016, is contained in the affidavit of Yer Thao filed 16 September 2016.  In particular, the summaries detailing the recorded footage of the respondent and others using live piglets, rabbits and possums to train greyhounds on the Churchable property.
  2. Each offence is a confiscation offence within the meaning of section 99(a) of the Act, in that it is a serious criminal offence, as if it is an indictable offence for which the maximum penalty is at least five years imprisonment.  Each offence is punishable by a maximum penalty of seven years’ imprisonment.  Accordingly, the respondent is a prescribed respondent within the meaning of s 116 of the Act. 

Forfeiture orders

  1. The State may apply to the Supreme Court or the Court before which the person is convicted for an order forfeiting particular property to the State. 
  2. Sections 146(1) and (2) of the Act provide:

“(1) This section applies if a person is convicted of a confiscation offence.

  1. The State may apply to the Supreme Court or the court before which the person is convicted for an order (forfeiture order) forfeiting particular property to the State.”
  1. Section 151 of the Act provides:

“(1) The court may make a forfeiture order in relation to particular property if—

  1. a person is convicted of a confiscation offence; and
  1. the conviction is the basis for the application for the forfeiture order against the property; and
  1. the court is satisfied the property, or an interest in the property, is tainted property; and
  1. the court, having regard to subsection (2), considers it appropriate to make the order.
  1. For subsection (1)(d), the court may have regard to—
  1. any hardship that may reasonably be expected to be caused to anyone by the order; and
  1. the use that is ordinarily made, or was intended to be made, of the property; and
  1. the seriousness of the offence concerned; and
  1. anything else the court considers appropriate.
  1. The court must presume that particular property is tainted property if—
  1. at the hearing of the application, evidence is presented that the property was in the person’s possession at the time of, or immediately after, the commission of the offence concerned; and
  1. no evidence is presented tending to show that the property is not tainted property.”
  1. However, unless the court gives leave, the application must be made within six months after the day the person is treated as if convicted of the offence under s 106 of the Act.  In this case, the requirements of s 106(1)(a) of the Act are met. 
  2. Given that the application for a forfeiture order relates to the confiscation offences, the Court must have regard to the evidence given with respect to any proceeding against the respondent that relates to these confiscation offences.
  3.               The Churchable property is “tainted property” within the meaning of s 104(1)(a) of the Act, in that it was used by the respondent in, or in connection with, the commission of the offences.  The Churchable property is the location where the offending took place.
  4. In Elkateb v Lawindi,[2] Giles CJ CommD said:

“The phrase ‘in connection with’ has on many occasions been said to be of considerable width, satisfied by a link or an association (Commissioner for Superannuation v Miller (1985) 8 FCR 153) or a relationship (Our Town FM Pty Ltd v Australian Broadcasting Tribunal [No 1] (1987) 16 FCR 465; Drayton v Martin (1996) 137 ALR 145) and summed-up in the phrase ‘having to do with’: see the same cases and Nanaimo Community Hotel Ltd v Board of Referees [1945] 3 DLR 225. As with the phrase ‘in relation to’, no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship (Perlman v Perlman (1984) 155 CLR 474; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 and O’Grady v Northern Queensland Co Ltd (1989) 169 CLR 356), but it should not be read down unless there be compelling reason to do so (Fountain v Alexander (1982) 150 CLR 615).”

  1. In Director of Public Prosecutions (Cth) v Jeffery,[3] Chief Justice Hunt at CL suggested that the words “in connection with any unlawful activity” within the meaning of s 48(4) of the Proceeds of Crime Act 1987 (Cth) required a “substantial connection between the activity in question and the use of the property”. He added:

“[I]t is not sufficient for there to be a mere accidental or incidental connection. The activity in question must be related to, or dependent upon, or could not have been committed without, or have resulted directly from, the use of the property.”

  1. The cases demonstrate that a “substantial connection” is not difficult to establish.  In Re George,[4] for example, a case decided under the Crimes (Confiscation of Profits) Act 1989, Lee J found that property was used “in connection with the commission of an offence” because it was deliberately used to access an adjoining property on which cannabis was grown.  Lee J held that the land was used in connection with the offence in a substantial and real way and was therefore tainted.
  2. Similarly, in State of Queensland v Carl Richard Statham,[5] Bond J found that:
  1. “[t]he important consideration is whether the interest held by the offender was used in, or in connection with, the commission of the confiscation offence.  The concept of connection is, as I have already mentioned, sufficiently broad to apply even if only a portion of the property was used.  This view is also supported by the worked example 1 in schedule 1 of the Act which is made relevant by operation of s 7(3) of the Act”;[6] and
  2. “[s]ubject to one reservation, I would think it is plainly appropriate to make the forfeiture order sought by the State”.[7]
  1. The State contends that the proper construction of s 104(2) of the Act is that if all or part of the property was used, or intended to be used, by a person in, or in connection with, the commission of the confiscation offence, it is tainted.  The corresponding provisions in relation to illegal acquired property and serious crime derived property which appear throughout the Act are consistent with such a construction. 
  2. I accept the submissions of the State that the Churchable property is tainted property within the meaning of s 151(3) of the Act.  Counsel for Mr Noble rightly concedes that the Churchable property is tainted property within that broad definition. 
  3. The material provided by the State proves on the balance of probability that the prerequisites for a forfeiture order as required by s 151(1)(a), (b) and (c) of the Act have been satisfied, namely Mr Noble:
  1. is a person convicted of a confiscation offence; and
  2. the conviction is the basis of the application for forfeiture order against the Churchable property; and
  3. the court is satisfied that the Churchable property is tainted property.<

Exercise of discretion

  1. The issue of substance between the parties is whether the broad discretion invested in the court pursuant to s 151(1)(d) is satisfied, namely whether the court, having regard to the s 151(2) matters, considers it appropriate to make a forfeiture order.  The matters a court may have regard to in determining whether it is appropriate to make an order are extremely broad.  As set out above, s 151(2) allows the court to have regard to:
  1. any hardship there is expected to be caused to anyone by the order; and
  2. the use that is ordinarily made or is intended to be made by the property; and
  3. the seriousness of the offence concerned; and
  4. anything else the court considers appropriate.
  1. In State of Queensland v Statham,[8] Bond J said:

“Courts have considered it appropriate to take into account the following factors as relevant to the determination of whether a forfeiture order should be made:

 (a) the value of the property;

 (b) the nature and gravity of the offences;

 (c) the use made of the property;

 (d) the degree of the respondent’s involvement;

 (e) the respondent’s antecedents;

 (f) the value of any other property confiscated and the penalty imposed;

 (g) the nature of the respondent’s interest in the property;

 (h) the value of the drugs involved or the size of the crop;

 (i) whether the property was acquired with the proceeds of the sale of drugs;

 (j) the utility of the property to the offender;

 (k) the length of the respondent’s ownership of the property;

 (l) the interest of innocent parties in the property

 (m) the extent to which the property was connected with the commission of the offence;

 (n) the fact that forfeiture is intended as a deterrent; and

 (o) the extent (if any) to which the retention of the property might bear on the respondent’s rehabilitation.”

  1. The Objects of the Act are described in s 4:

4 Objects

  1. The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity.
  1. It is also an important object of this Act—
  1. to deprive persons of the following—
  1. illegally acquired property, tainted property and benefits derived from the commission of offences;
  1. the benefits derived from contracts about confiscation offences;
  1. wealth that persons can not satisfy a court was lawfully acquired; and
  1. to deter persons from committing serious criminal offences, including by increasing the financial risk associated with committing serious criminal offences; and
  1. to prevent the reinvestment of financial gain from illegal activity in further illegal activity; and
  1. to assist law enforcement agencies to effectively trace—
  1. property acquired by persons who engage in illegal activity; and
  1. tainted property; and
  1. benefits derived from the commission of offences; and
  1. amounts of unexplained wealth; and
  1. to forfeit to the State property of, or associated with, persons who commit qualifying offences, and against whom serious drug offender confiscation orders are made, in recognition of the impact of qualifying offences on the community and the justice system; and
  1. to ensure orders of other States restraining or forfeiting property under corresponding laws may be enforced in Queensland; and
  1. to protect property honestly acquired for sufficient consideration by persons innocent of illegal activity from forfeiture and other orders affecting property.
  1. This Act provides for 3 separate schemes to achieve its objects.
  1. The scheme in chapter 2 does not depend on a charge or conviction and is administered by the commission.
  1. The scheme in chapter 2A relates to the charge or conviction of particular serious offences involving drugs and is administered by the commission.
  1. The scheme in chapter 3 relies on a person being charged and convicted (as defined in this Act) of a confiscation offence and is administered by the DPP.
  1. Despite the similarities between the schemes, each is separate and none of the schemes are to be construed as limiting either of the other schemes, unless this Act otherwise expressly provides.”
  1. The Act provides for three separate schemes to achieve its objects.  The applicant relies upon Chapter 3.  Section 94 provides an explanation of Chapter 3:

94 Explanation of ch 3

  1. This chapter enables proceedings to be started against a person to recover property and benefits derived from, and anything used for, or in the commission of, a confiscation offence, after the person has been charged with or convicted of the offence.
  1. It does this by enabling a court, as a preliminary step in appropriate cases, to make a restraining order preventing the property being dealt with without the court’s leave.
  1. It also empowers the court to forfeit the following property to the State—
  1. property used, or intended to be used, in or for the commission of a confiscation offence;
  1. property derived from property mentioned in paragraph (a) or from the commission of a confiscation offence.

Note—

For matters that the court is to consider in deciding whether to forfeit property mentioned in paragraph (a), see section 151(2).

  1. In addition, it provides a mechanism for—
  1. preventing the disposal or concealment of property and benefits derived from the commission of a confiscation offence; and
  1. depriving persons who have directly or indirectly benefited from the commission of a confiscation offence of the benefits derived from the offence.”
  1. The State argues the forfeiture of the Churchable Property is consistent with the objects of the Act.  The main object of the Act is to remove the financial gain and increase the financial loss associated with illegal activity.  This is an important object of the Act as it deprives persons of keeping illegally acquired property, tainted property and benefits derived from the commission of offences. It also serves the purpose of deterring persons from committing serious criminal offences by increasing the financial risk associated with committing such offences.
  2. The State argues that it is not appropriate for the Court to consider whether the sentence imposed constituted an adequate penalty for the offences.  That is correct.  An order under the Act forfeiting property is not a punishment or sentence for any offence.  Also, in deciding the sentence to be imposed on a person for a confiscation offence, the Court must not have regard to the question of whether or not the defendant’s property is, or may become the subject of a forfeiture order.
  3. The State argues that the forfeiture of the property is a proportional response in all the circumstances.  It relies upon the seriousness of the offences as a matter that the Court may have regard pursuant to s 151(2)(c) of the Act.  The State argues that Mr Noble has not demonstrated hardship that may be expected to be caused to himself or anyone else as a result of the order.

Mr Noble’s Antecedents

  1. Mr Noble is currently 71 years of age having been born on 13 September 1946.  Mr Noble’s wife, Lynette Maree Noble, is 69 years of age having been born 3 September 1948.  Mr and Mrs Noble were married in 1968, that is 50 years ago. 
  2. Mr Noble was a self-employed bricklayer who retired in 1996.  Over approximately 30 years of labour as a bricklayer, Mr Noble bought and sold several parcels of real property. 
  3. After he retired, Mr Noble took up a “vocation” as a greyhound trainer and to that end in 1997 purchased a 40 acre property at 9 Wotan Road, Churchable.  The subject property, the Churchable property, was purchased by Mr Noble in 1997 for the sum of $140,000.  The property has always been unencumbered.  The $140,000 was sourced by the sale of a farm in Inverell, New South Wales, previously owned by Mr and Mrs Noble. 
  4. Mr and Mrs Noble depose to the fact that when the Churchable property was purchased in 1997 it was “a scrub block with a house on it”.  Mrs Noble says that 10 out of the 40 acres of the land were cleared personally by her husband, Mr Noble, and herself performing what would no doubt be several years of hard labour.  Mr and Mrs Noble worked on the property nearly every day for nine years. 
  5. Utilising his construction skills, Mr Noble was able to build the kennel blocks, dog yards, a dog training track and improve the property.  Approximately $100,000 to $150,000 of money jointly owned by Mr and Mrs Noble was expended to improve the property. 
  6. On purchase of the Churchable property, Mr Noble’s parents lived in the house rent free for a period and then Mr and Mrs Noble themselves lived in the Churchable property from about 1997 to 2005.  The greyhound training track on which the offences occurred was built in 2007. 
  7. It was on the greyhound training track that Mr Noble indulged his passion of training greyhounds.  Mr Noble did allow other persons to use the facility at a fee of $5.00 per trial.  However, that amount of money did not even cover the costs of conducting the facility.  Mr Noble considered his greyhound racing to be “a hobby, not a job”. 
  8. Mr Noble used the track to train greyhounds between 2007 and 2014 when he was charged with the serious offences the subject of these proceedings. 
  9. It is important to record that the property at Churchable was fully paid for, unencumbered and fully developed by 2007, that is some seven years prior to the subject offences being committed.  As it is an important object of the Act to deprive persons of illegally acquired tainted property and benefits arrived in the commission of offences, it must be concluded that no part of the value of the property has been acquired from unlawful and disgraceful conduct of Mr Noble committing the subject offences.  Furthermore, there is no evidence to suggest there was any financial gain at all let alone substantial financial gain from involvement in the serious criminal offences. 
  10. The Churchable property was placed on the market for $650,000 on 16 September 2016 and may have a current market value of approximately $600,000.[9] 
  11. It is important to note that a forfeiture order is an “all or nothing” order.  That is the Court does not have a discretion to order forfeiture of any part of a property used in the commission of an offence.[10]  An order therefore declaring the property to be forfeited pursuant to s 151 would no doubt, have a significant effect in deterring persons from committing serious criminal offences, however, it is only one of the factors which may be taken into account pursuant to s 151(1)(d) of the Act.[11]
  12. In response to each of the 14 factors listed by Bond J in State of Queensland v Statham[12]  in light of the accepted evidence in the present case, I make the following conclusions:

The value of the property

  1. The value of the Churchable property is in the vicinity of $600,000;

The nature and gravity of the offences

  1. The nature and gravity of the offences are that they involve serious animal cruelty over a period of time between 20 August 2014 and 15 October 2014. The offences are heinous offences. They have been described as follows:
  1. Judge Horneman-Wren SC[13] described Mr Noble’s participation in the practice of live baiting as “barbaric”; at page 5 of the sentencing remarks his Honour said “I pause to observe, however, that a quick kill of a feral animal with a well-placed shot from a rifle is a vastly more humane death than that which is preceded by the terror and suffering of a defenceless animal tied up to a lure arm, spun around a track many times and exposed to the ferocity of greyhound dogs for the very purpose of developing a bloodlust within them.” 
  2. In R v Noble; ex parte Attorney-General of Queensland,[14] Gotterson JA also said of Mr Noble in his offending that his “conduct was inhumanly cruel and protracted”.[15]

The use made of the property

  1. Only a portion of the property, perhaps one-eighth, was used as a greyhound training facility. Since 2016 the property has been rented out by Mr Noble and is his only significant source of income for both Mr and Mrs Noble.

The degree of the respondent’s involvement

  1. Mr Noble was fully involved in the serious criminal offences.

The respondent’s antecedence

  1. Mr Noble is currently 70 years of age, was 66 years of age at the time of the offending and had no relevant prior convictions[16] and otherwise a responsible and law abiding citizen.

The value of any other property confiscated and the penalty imposed

  1. No other property has been confiscated and the penalty imposed is imprisonment of three years, albeit the sentence was wholly suspended.

The nature of the respondent’s interest in the property

  1. The nature of the respondent’s interest in the property is that he is the sole registered proprietor of the property, however, as discussed below Mrs Noble has a strong claim as an equitable or beneficial owner of the property.

The value of the drugs involved or the size of the crop

  1. The value of drugs involved and the size of the crop is irrelevant.

Whether the property was acquired with the proceeds of the sale of drugs

  1. Whether the property was acquired from the proceeds of sale of drugs is irrelevant, however, in the present case, it is noted that the property was acquired and fully developed and paid for more than seven years prior to the offending conduct.

The utility of the property to the offender

  1. As discussed below the property is the sole source of income for the support of both Mr and Mrs Noble in their advancing years and therefore is a utility to not only Mr Noble but also Mrs Noble.

The length of the respondent’s ownership of the property

  1. Mr Noble has owned the property for approximately 21 years since 1997.

The interest of innocent parties in the property

  1. This is a factor which greatly weighs against the exercise of discretion in favour of the applicant as Mrs Noble must be seen as an innocent party whose financial position, her ability to live and fund any necessary medical treatment for her medical condition will be severely compromised if not completely obliterated by the making of an order. 

The extent to which the property was connected with the commission of the offence

  1. The extent of the connection between the property and the commission of the offence is that the property is the place only that the offence is committed.

The fact that forfeiture is intended as a deterrent

  1. The fact that forfeiture is intended as a deterrent is an important factor in favour of the applicant but by no means is capable of outweighing the several discretionary factors listed above against the applicant’s success in the application.

The extent to which the retention of the property might bear on the respondent’s rehabilitation

This is irrelevant. Since the offences have been committed Mr Noble has been banned from having any involvement in greyhound training or racing.

  1. Counsel for Mr Noble contended that very significant hardship would be visited upon not only Mr Noble but also Mrs Noble if the Court were to grant a forfeiture order.  Counsel for Mr Noble argues that the forfeiture of the property in all the circumstances is disproportionate to the offending.
  2. In R v Bolger,[17] the Court said:

“Relevant hardship, however, the hardship which would followthe making of a forfeiture order, must be assessed in comparison with the offence which was committed.  Hardship which well might deter the court from making a forfeiture order where the offence was growing one cannabis plant might well not deter the court where the offence was that of supplying a huge quantity of heroin.”

  1. Mr Noble contends that the forfeiture of the property would cause him, and Mrs Noble, significant hardship.  Mrs Noble is the title holder of property at 66 Karrabin-Rosewood Road, Karrabin which has been owned by the applicant and Mrs Noble since October 2005.  They reside in that property and rent the property the subject of these proceedings.
  2. Since September 2016, the Churchable property was rented by Ms Wendy Irene Bruen (“Bruen”) for $400 per week.  Those monies represent the only income for Mr and Mrs Noble. 
  3. Mr Noble has significant health difficulties including Stage 4B follicular lymphoma diagnosed in 2010 in remission, gastric ulcers, and a pulmonary embolism (lung blood clot) diagnosed in July 2014.
  4. Mr Noble’s health was summarised by Judge Horneman-Wren SC during sentencing proceedings as:

“You also suffer from asbestosis and a lung lesion – for which you need regular checkups – and sensory neuron disease in both legs which is a permanent sequela of your chemotherapy.  It results in a loss of balance in the legs.  The medical reports revel that there is nothing that can be done in treatment of it.”[18]

  1. Mrs Noble deposes to suffering sever Chronic Obstructive Pulmonary Disease (progressive lung disease), and chronic depression.  The medical certificate at LMN02 states that “she is incapable of self-care and maintaining herself and her house”.
  2. The Churchable property also represents, by value, their most substantial retirement asset.
  3. The NSW Court of Criminal Appeal said in R v Galek:[19]

“In my judgment, it is clear that that question of hardship cannot be resolved simply by asking whether $48,675 is a great deal of money to lose.  The loss of forfeited property is integral to the Act.  It is what the Act was intended to achieve.  What has to be looked at is whether, that forfeiture having been made, the consequences reasonably likely to arise from the loss of the $48,675 would be such, in the circumstances of the respondent, that there would be hardship which would be disproportionate.  That is a different issue.”

  1. In R v Anderson,[20] Williams J said of the ability to be a self-supporting member of society:

“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.”

  1. Williams J at 367 repeated the well cited passage from Dickens:[21]

“It is plain that the object of the Act is to ensure so far as is possible, that the convicted drug trafficker is parted with from the proceeds of any drug trafficking which he has carried out.  The provisions are intentionally Draconian.”

  1. It is clear that the forfeiture of the property would force Mr and Mrs Noble onto the pension, causing not only hardship, but an imposition on the tax payer.
  2. In State of Queensland v Statham, Bond J said:[22]

“I do observe, however, that the proportion of the property which was used in the commission of the offending and the proportion of the property which was not used may be a factor that the court may have regard to in determining whether it is appropriate to make a forfeiture order in the circumstances.”

  1. The property title was transferred to Mr Noble on 2 December 1997, more than 20 years ago.[23]  The property was therefore not acquired with the proceeds of any criminal offending, nor is there evidence the property was purchased with the intention of committing serious offences thereon.
  2. It would not appear in contention that the dwelling was not used during the commission of the serious offence, nor would it be in contention that the majority of the property, by size, was not used during the commission of the offence.
  3. In paragraph 30 of her affidavit Mrs Noble deposes to 10 out of the 40 acres of land being cleared which suggests that one quarter of the property is being utilised for activities related to the training of greyhounds.
  4. The property is both a rental and retirement asset.  Both considerations, in proportion of their income and self-funded retirement, would favour an order not being granted.
  5. In R v Winand,[24] their Honours said:

“It is clear that what also must be borne in mind is the question of proportionality, that is to say, would forfeiture of the property be sufficiently proportionate to the nature and gravity of the offence having regard also to the sentence imposed on the offender”.

  1. In that case, the Victorian Court of Appeal overturned the forfeiture order made by the trial judge stating “…the making of an order did, to an unacceptable degree, operate disproportionately to the nature and gravity of the offence.” 
  2. Mr Noble’s criminal sentence proceeded on an agreed schedule of facts.  Counsel for the respondent at sentence placed on record that the respondent was making “I think it was $5 or $10 a trial or something like that”.  The agreed schedule of facts identified the number of trials such that the actual proceeds of crime is somewhere between $635 and $1270.  The State seeks an order forfeiting a property of a value of approximately $600,000.  An order for forfeiture would be significantly disproportionate to the actual proceeds of crime, and the seriousness of the offending (noting the maximum term applicable).
  3. The State seeks a forfeiture order of an entire property in relation to a serious offence which carries just over the maximum term[25]  as defined, of five years’ imprisonment.  Again, that factor distinguishes this matter from more common drug related proceedings where the maximum terms are 20 and 25 years’ imprisonment.
  4. In R v Anderson,[26] Williams J referred to R v Bolger:[27]

“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.”

  1. Mr and Mrs Noble, over the period of their 50 year marriage have owned several properties which were either owned in one name or the other, or jointly.  They have not held separate funds and all of the assets of the marriage have been combined from joint funds.
  2. The property is an asset of a very long term marriage and consequently, Mrs Noble holds an equitable interest/trust in that property probably in equal parts with the respondent.  There is no allegation Mrs Noble has been charged with any offence, and no allegation in any of the State’s material Mrs Noble had knowledge of the respondent’s criminality involving the property.
  3. The Supreme Court of Victoria, per Mandie J, declined to make an order in similar circumstances where a wife of a long term marriage grew two crops of Cannabis (the second of which was valued in the region of $13,700 to $22,000) in a jointly owned second property worth $250,000, which had been purchased ten years earlier as a holiday home.  The forfeiture of that property would not have left her or her husband homeless.[28]

Conclusion

  1. The material placed before the court shows that Mr Noble has significant health difficulties including lymphoma and gastric ulcers.  Mr Noble suffers from asbestosis and a sensory neuron disease in both legs.  Mrs Noble suffers from severe COPD (Chronic Obstructive Pulmonary Disease) which is a progressive lung disease and also chronic depression.  Mrs Noble has been certified as being medically incapable of self-care and maintaining herself in her house.  The evidence discloses that Mr and Mrs Noble are already in need of medical assistance and further treatment may be required.  The Churchable property is therefore extremely important to Mr and Mrs Noble, not only as their sole source of current income but importantly as a means of funding any necessary medical treatment.  To deprive Mrs Noble of this would be unjust.
  2. In the circumstances, it must be concluded that forfeiture of the Churchable property would be wholly disproportionate to the nature and gravity of the offences and would be manifestly unfair both to Mr Noble and Mrs Noble and would cause significant hardship to both Mr and Mrs Noble.
  3. For the above reasons, I conclude in terms of s 151(1)(d) that it is not appropriate to make the forfeiture order which has been sought.
  4. The application is dismissed. I will hear from the parties as to costs.

Footnotes

[1]   The application was made within the relevant statutory period of six months. See s 146(4) of the Criminal               Proceeds Confiscation Act 2002 (Qld).

[2]   (1997) 42 NSWLR 396 at 402.

[3]   (1992) 58 A Crim R 310.

[4]   [1992] 2 Qd R 351.

[5]   [2016] QSC 189.

[6]   At [25].

[7]   At [26].

[8]   [2016] QSC 189 at [28]. Citations omitted.

[9]   See exhibit AJD-02 to the affidavit of Adam John Dennien sworn 16 September 2016.

[10] R v Galek (1993) 70 A Crim R 252.

[11]   See paragraph (n) of the factors referred to by Bond J in State of Queensland v Statham [2016] QSC               189.

[12]   [2016] QSC 189 at [28].

[13]   Page 6, paragraph 2 of sentencing remarks dated6 September 2016 which are exhibit YT-04 to the               affidavit of Yer Thao affirmed 13 September 2016.

[14]   [2017] QCA 86.

[15]   See paragraph [55].

[16]   See exhibit YT-04, page 4, line 39.

[17]   (1989) 16 NSWLR 115 at 127.

[18]   Page 8, paragraph 2 of the sentencing remarks dated 6 September 2016 which are exhibit YT-04 to the               affidavit of Yer Thao affirmed 13 September 2016.

[19]   (1993) 70 A Crim R 252 at 256.

[20]   (1992) 61 A Crim R 382 at 387.

[21]   [1990] 2 QB 102 at 105.

[22]   At [26].

[23]   Evidence of legitimate purchase is contained within affidavit of Thomas Adrian Noble sworn 14               November 2016 at paragraphs [8] to [12]. 

[24]   (1994) 73 A Crim R 497 per Phillips CJ, Crockett and Southwell JJ.

[25]  Serious animal cruelty – seven years.

[26]   (1992) 61 A Crim R 382.

[27]   (1989) 16 NSWLR 115 at 126.

[28] DPP Victoria v Smith [2007] VSC 98 at [18].

Editorial Notes

  • Published Case Name:

    State of Queensland v Noble

  • Shortened Case Name:

    State of Queensland v Noble

  • MNC:

    [2018] QSC 59

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    22 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 59 22 Mar 2018 -

Appeal Status

No Status