2 Nov 2022
Given the limited and non-repeated use of the property for manufacture (at least one occasion), legitimate financing of the purchase, the substantial equity in the property relative to proceeds of offending, and the real risk of undue hardship if the defendant's entire interest were forfeited, a forfeiture of 50% of the defendant's interest in the property was a proportionate outcome under s 142N(2).
16 Mar 2022
Because the respondent was shown on the balance of probabilities to have unlawfully benefited from significant criminal activity to the value of $470,000, no prior asset forfeiture reduced that amount, no undue hardship claim was advanced, and the respondent has interests in specified property, the High Court was required to make a profit forfeiture order for the maximum recoverable amount of $470,000 and to order realization of the listed assets.
14 Jul 2020
The Court held the properties were instruments of crime because the equity in the land was used to facilitate the fraudulent obtaining of loan advances; mortgages obtained through the agent's fraud (forgery and dishonest certification) are void ab initio and agent fraud is imputable to the principal under Nathan v Dollars & Sense Ltd, and on the facts FMC was materially involved in the offending, so FMC had no recoverable interest and was not entitled to relief; appeal dismissed.
1 Jul 2020
The Court found on the evidence that both Kiwi Street properties were instruments of crime because they enabled the commission and facilitation of slavery and trafficking offences; the defendant retained effective control over the properties and thus had an enforceable interest; the parties agreed the defendant's partial interest equated to 49% equity valued at $215,000; having regard to s142N factors and third-party interests, a consent Instrument Forfeiture Order forfeiting that partial interest to the Crown was appropriate and was made with specified procedures for payment and application…
28 Nov 2019
The Court of Appeal granted an extension of time and granted leave to appeal because the High Court's decision raised matters of general or public importance—specifically whether the properties qualified as instruments of crime under the Criminal Proceeds (Recovery) Act 2009 and whether FM Custodians possessed a qualifying interest under s 77(1). The Court excluded the jurisdictional challenge to District Court authority from the scope of the appeal because the proceeding arose from the criminal jurisdiction, not a civil District Court proceeding.
22 May 2019
The High Court upheld the District Court: the properties were used by Smith to obtain loan advances and thus to facilitate the offence; Smith committed the forgeries as agent in the course of tasks entrusted by FM Custodians (through its solicitor/agent arrangements) so mortgages were obtained by fraud and indefeasibility did not protect FM Custodians; FM Custodians was therefore involved in the offending and relief from instrument forfeiture was correctly refused; appeal dismissed.
21 Dec 2018
The Court allowed the appeal, quashed the prior sentence and undertook its own sentencing exercise: the offending against the youngest and repeatedly drugged complainant (J) was the lead offence with a starting point of four years uplifted by three years to reflect offending against other complainants (total starting point seven years); reduced three months for instrument forfeiture, reduced further by a 15% guilty plea discount and a 5% remorse discount, producing an end sentence of five years and four months' imprisonment, imposed by specified concurrent and cumulative component sentences.
28 Feb 2018
The Lodge was an instrument of crime because its operation and manager's quarters facilitated access to and exploitation of vulnerable victims; Mr Harris had effective control and was therefore treated as having an interest; balancing culpability, hardship and statutory payment priorities, the Court ordered forfeiture of 25% of the net proceeds attributable to 235 Commerce Street (25% of $70,865.55 = $17,716.38) to the Crown, with the balance returned to Mr Harris.
2 Jun 2015
The High Court approved the parties' negotiated settlement because it was consistent with the purposes of the Criminal Proceeds (Recovery) Act 2009 and the overall interests of justice; the court ordered specified forfeitures and discharge of restraining orders to give effect to the settlement (total agreed return from criminal activity $200,000: $150,000 civil forfeiture and $50,000 instrument forfeiture).
27 Nov 2013
The vehicle was released because (1) two vehicles were necessary for the working rural family; (2) the vehicle's modest value (Turners valuation $10,000) and the existence of substantially larger restrained assets made the risk to forfeiture equity insignificant; and (3) the court could and did impose conditions to protect forfeiture interests, so variation of the restraining order was justified.