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- Unreported Judgment
R v Brooks QDC 27
DISTRICT COURT OF QUEENSLAND
R v Brooks  QDC 27
KARL WILLIAM BROOKS
Application for forfeiture orders pursuant to s 701 Police Powers and Responsibilities Act 2000
District Court at Cairns
22 February 2019 (ex tempore)
19, 22 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Forfeiture – respondent pleaded guilty to fraud and attempted fraud and was sentenced – Crown application for forfeiture of items seized pursuant to search warrants – whether electronic items seized should be forfeited to the State
Police Powers and Responsibilities Act 2000 (Qld), s 701
Criminal Proceeds Confiscation Act 2002 (Qld), s 260
Penalties and Sentences Act 1992, s 4
C Georgouras for the Applicant
J Jacobs for the Respondent
Director of Public Prosecutions for the Applicant
Cuthbertson & Co for the Respondent
- This is a contested application by the Crown for orders pursuant to section 701(1)(a) of the Police Powers and Responsibilities Act 2000, that electronic items seized pursuant to search warrants be forfeited to the State. The basis of the application is that the items seized were used in the commission of two indictable offences and contain personal and financial details of the complainants and witnesses in the offences.
- The defendant is currently serving a period of imprisonment for two counts on indictment: one count of fraud and one count of attempted fraud to the value of $30,000 or more with a circumstance of aggravation that he carried on the business of committing the offence. Those offences are pursuant to section 408C of the Criminal Code. They are serious offences. Count 1 had a maximum penalty of five years imprisonment. Count 2 had a maximum penalty of 10 years imprisonment.
- The matter was originally listed for trial before me. On the first day of trial, 12 February 2019, the defendant was arraigned and entered pleas of not guilty.
- I then heard oral argument about the admissibility of evidence about his previous convictions for like offending. In 1996 the defendant was convicted, after a trial in the District Court of Queensland, of one count of misappropriation with circumstances of aggravation and one count of false pretences. In 1998 the defendant pleaded guilty in the District Court to two counts of fraudulent trick, one count of partly by false pretences and partly by wilful promise, and one count of false pretences. Each of those convictions arose in similar circumstances to the present. They all concerned the defendant telling lies or making dishonest representations to induce, or attempt to induce, third parties to invest large sums of money in his speculative business enterprises which, ultimately, did not proceed.
- After hearing that application I ruled that the evidence of his previous convictions was admissible in the trial.
- The defendant then changed his plea. He was re-arraigned and pleaded guilty to both counts. On 15 February 2019 the defendant was sentenced. On count 1 he was convicted and sentenced to two years imprisonment. On count 2 he was convicted and sentenced to two years and six months imprisonment. The sentences were ordered to be served concurrently. A parole release date was set at 14 June 2019 after he had served four months of his sentence.
- At the end of the sentence the prosecutor was granted leave to file and read an application for forfeiture of certain items seized by police during the execution of search warrants at the defendant’s premises. Defence counsel advised that the forfeiture application was opposed. That application was adjourned to 19 February 2019 when I heard oral submissions. Further written submissions were provided after that date.
- To place the forfeiture application in context, it is necessary to set out the circumstances of the offending. They were contained in an agreed schedule of facts.
- At the time of the offending the defendant was 81 and 82 years old. His advanced age did not prevent him from being actively involved in the circumstances of the offending. Count 1 occurred over three months between June and September 2016. The complainant was a 53 year old medical practitioner who was the defendant’s doctor. The defendant was the director of a company, Rainforest Water Australia Proprietary Limited. Despite being registered in 2004, that company never declared taxable income, leased land, commenced construction, produced any product or proceeded any further than a start-up phase.
- The defendant approached the complainant while he was her patient. He spoke to her on multiple occasions to try to induce her to invest funds in his company. He made a number of dishonest representations to her. They included representations about how much funding he had received from overseas investors, that production facilities were due to commence within a few months, that he was the managing director of another entity, and that the company had acquired land to build its facilities on. All of those representations were false.
- Relying on these representations the complainant paid $20,000 to the company’s bank account to buy shares in the company. She intended to transfer a further $5000 the next day but, fortunately, her bank intervened and advised her to consider cancelling the transactions. She tried to cancel the transfer and did not send the final $5000. She told the defendant of that. Nonetheless, he arranged to transfer her money from that bank account into another bank account of the company. He then used all of her money on business expenses. She never received shares registered in her name.
- In February 2017 the defendant created a new entity, a limited liability partnership, with the same name. He and another person were registered as general partners. In April 2017 he deregistered the company leaving only the limited liability partnership remaining. In May 2017 police executed a search warrant. They seized the defendant’s computers, mobile phones and documents. He declined to participate in an interview with police. He was charged and released on bail. Within only a few weeks of being released on bail, he committed the second offence.
- The defendant advertised for an office manager position with the new limited liability partnership. A 65 year old retiree responded. He did some research on the internet and became aware of the earlier charge so he contacted police. Police placed recording devices within that complainant’s house with his consent. The defendant made a number of dishonest representations to that complainant in an attempt to induce him to transfer $50,000 to the partnership’s bank account. Police executed a second search warrant on the defendant’s home. They seized further documents. The defendant was then charged with count 2, the attempted fraud, and released on bail again.
- The complainant in count 1 lost the use of her $20,000 for a considerable period of time, some two years and five months. The $20,000 was eventually repaid to her by the defendant on the day he entered a plea of guilty.
- The Crown applies for orders pursuant to section 701(1)(a) of the Police Powers and Responsibilities Act 2000, that certain items seized by police during the execution of the search warrants be forfeited to the State. Those items are three laptops, two hard drives, two mobile phones and a number of documents. The value of the property is unknown. The defendant opposes the forfeiture of the three laptops and two mobile phones but does not oppose the forfeiture of the hard drives and documents.
- I turn now to consider the relevant principles. There was no dispute that the items were lawfully seized pursuant to the search warrants. The parties agreed that this Court had jurisdiction to make an order under section 701(1)(a) following the sentencing of the defendant. For the purposes of determining this application, I proceed on the basis that I do have jurisdiction, although neither party made detailed submissions on this issue.
- The onus is on the applicant, on the balance of probabilities.
- Section 701(1) states that:
“At the end of a proceeding, a court, in relation to a seized thing, may make any of the following orders –
(a) an order for the return, forfeiture, destruction or disposal of the thing;”
- Sections 701(1)(b) and (c) are not relevant here.
- Section 701(2) states that “A thing that is forfeited under an order under this Act becomes the property of the State.”
- It is necessary to consider that section in its statutory context. Section 701 is contained in Chapter 21 “Administration”, Part 3 “Dealing with things in the possession of police service”, Division 2, “Return of relevant things”. Section 686 provides that Part 3 applies, so far as is relevant here:
“to a thing that is lawfully in the possession of the police service (“relevant thing”), whether before or after the commencement of this section, because –
(a) it was seized by a police officer;”
- Section 687 provides that the object of Part 3:
“is to ensure, as far as practicable, a relevant thing-
(a) is retained by the police service only for as long as is reasonably necessary; and
(b) is handled in an a efficient, safe and accountable way.”
- Division 2 sets out procedures for the return, forfeiture, destruction or disposal of relevant things in police custody once they are no longer required to be retained. An owner or a third party who claims to have a legal or equitable interest in the seized thing may make an application to the Commissioner or the Magistrates Court for an order for the return of the thing to them: see sections 692 and 693. However, the Commissioner may only return a thing under section 692(4) if the Commissioner is satisfied that the applicant may lawfully possess the thing and it is appropriate that the thing be delivered to the person: section 692(5). No application had been made by the defendant or any third party for the return of the things seized.
- Section 701 does not expressly identify any matters that the Court must, or may, have regard to when considering an application for an order.
- The annotations to this section in Carter’s Criminal Law of Queensland do not refer to any relevant authorities or principles regarding the exercise of the Court’s discretion under this section. The plain words of the section must be considered in accordance with settled principles of statutory construction.
- Based on the express words of section 701, the Court has a broad discretion to make an order. Nonetheless, the discretion is not at large. It must be exercised judicially. The term judicially in this context means that the discretion must be justified by a reason and that reason must be informed by the purpose for which the discretion has been conferred. Here, the purpose of the discretion to make orders under section 701 is to empower a judge, at the end of a proceeding, to make such orders to return, forfeit, destroy or dispose of a seized thing in the possession of the police as are appropriate in all the circumstances. Neither party was able to refer me to any decisions of this Court, or the Court of Appeal, which have considered this particular section in a contested application.
- Section 701 can be contrasted with section 260 of the Criminal Proceeds Confiscation Act 2002 (Qld). That section provides that:
“In deciding the sentence to be imposed on a person (the “defendant”) for a confiscation offence, the court must not have regard to the question of whether or not –
(a) the defendant’s property is, or may become, the subject of a forfeiture order…”
- Under section 99 of that Act, a confiscation offence is defined to include:
“(b) another indictable offence, whether dealt with on indictment or summarily;”
- Section 308C of the Criminal Code is a confiscation offence for that purpose. However, here the Crown does not make an application for forfeiture under the Criminal Proceeds Confiscation Act 2002.
- The defendant’s counsel relied on English legislation and dated English authority to the effect that a forfeiture order should be considered as part of the total penalty imposed for the offences. He submitted that if the effect of that order, when taken together with any sentence or orders made, would be to create an excessive criminal penalty, then the forfeiture order should not be made. He also referred to Victorian legislation and authority to similar effect. He submitted that those principles apply in this case. The defendant’s counsel further submitted that the defendant having been sentenced to a period of imprisonment, it would now be unduly harsh to make the forfeiture orders sought.
- The difficulty with that submission is that both the English and the Victorian statutory regimes are different to the one applicable here. Both of those jurisdictions contain express provisions permitting or requiring the Court to have regard to the effects on the offender of making the forfeiture order, together with any other order the Court makes on sentence. As I have already explained, here the application is made under section 701 of the Police Powers and Responsibilities Act. It is silent on this issue. Section 260 of the Criminal Proceeds Confiscation Act 2002 specifically provides to the contrary of the Victorian and English authorities. That is, it provides that in deciding the sentence to be imposed following conviction of a person for a confiscation offence, the Court must not have regard to the forfeiture of property of a defendant. Section 260 abolished in Queensland the common law rule that any forfeiture, or a possible future forfeiture, can be taken into account in determining sentence.
- The Crown submitted that the English authorities do not apply here. The prosecutor pointed out that the forfeiture order under section 701 occurs at the end of the sentencing proceeding. It was submitted, therefore, that there is no force to the defendant’s submission that the forfeiture of the items ought to be a relevant consideration of the sentence in terms of the totality principle.
- I cannot accept the defendant’s submission or his construction of section 701. There is no support in the plain words of section 701 for it, nor any Queensland authority supporting it. The English and Victorian decisions relied upon are based on different legislation.
- In addition, a forfeiture order under section 701 is not part of a “sentence” as defined in section 4 of the Penalties and Sentences Act 1992. It is not a “penalty”, which is defined to include any fine, compensation, restitution, or other amount of money, that may be ordered as part of a sentence. It is a separate proceeding, under separate legislation, that is brought at the end of a proceeding.
- I do not accept that when considering making the forfeiture orders sought under section 701(1)(a) the Court must or is required to take into account the impact of those orders on the totality of the sentence earlier imposed on the defendant.
- Even if I am wrong about that, for the reasons set out below, I do not consider that the making of the forfeiture orders sought here would have such a significant punitive effect as to result in double punishment of the defendant, or result in a penalty being imposed on him that was unduly harsh.
- There is unchallenged affidavit evidence from a police officer of the following matters. First, two out of three of the laptops and both mobile phones, contain contact details, personal details and financial details of the two complainants and other witnesses. Second, they also contain information relevant to the dishonest representations made in the commission of the offences. Third, it is not standard practice for police to return a computer to an offender after conviction, because there is no way to guarantee that the item has been effectively wiped of all material, including any sensitive material relating to victims, complainants and witnesses. Fourth, when seized items such as computers are forfeited to the State, the usual practice is that those items are not sold at auction, but are instead destroyed, to ensure that no person has access to the information contained on them that relates to the commission of offences.
- The prosecutor submitted, and the defendant’s counsel accepted, that the entire contents of two of the laptops and both mobile phones, had been downloaded electronically to a disc and disclosed to the defendant as part of the prosecution brief. Therefore, the defendant already had that information in his possession. To the extent that that disclosure contained information personal to third parties, the defendant is subject to an implied undertaking only to use that information for the purposes of the proceeding. He would not be permitted to use that information for any other purpose.
- It is clearly a relevant consideration that the items sought to be forfeited have been used in the commission of both offences. I am satisfied from the evidence of the police officer, as well as the agreed statement of facts, that at least two of the laptops, and both of the mobile phones, and the information contained on those devices, were used in the commission of the offences.
- The offences are inherently serious. The defendant was the principal, indeed the sole, offender in both of the offences. He has previous convictions for the same offending. Because the entire contents of two laptops and both mobile phones have already been disclosed to the defendant for the purposes of the proceeding it cannot be said that if the items are forfeited, he would lose important personal information contained on those devices. That means that any detriment or hardship to the defendant caused by a forfeiture order of those items would be confined to the loss of value of the hardware in the items, not the information that they contain, and to the loss of the opportunity to continue using the items.
- There is no evidence before the Court of the value of the items. Given the nature of the items, and that they were seized almost two years ago, in my view, their value is not likely to be significant.
- There is no evidence about the third laptop seized. The prosecutor submitted, on the basis of other documents in the police brief, that the third laptop seized was not claimed by the defendant, nor his co-director, and that its contents are unknown. Nonetheless, it was lawfully seized as part of the execution of the search warrants from the defendant’s home.
- It is also a relevant factor that the defendant has not made any application for the return of any of these items when it was open for him to do so. Nor has the defendant placed any evidence before the Court about any matters relevant to the determination of the forfeiture application.
- The items seized clearly contain information relating to the complainants and other witnesses. That is sensitive personal information which was provided under false pretences. It is not in the public interest that that information be returned to the defendant. That is particularly so in this case, given the nature of the defendant’s offending and his criminal history of defrauding people. I am satisfied that the third laptop has not been claimed by any other person.
- Taking into account all of those matters, I am satisfied that it is appropriate, in all the circumstances of the case, to make the forfeiture orders sought. The application is allowed. I make orders in terms of the draft handed up, initialled by me and placed with papers, that all of the items listed be forfeited to the State.
- Published Case Name:
R v Brooks
- Shortened Case Name:
R v Brooks
 QDC 27
22 Feb 2019