Citation: Director of Public Prosecutions v Wesam Abdullah [2002] NSWSC 938
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 October 2002
Judge(s): Dunford J
Background
The defendant was convicted in the Local Court of attempting to dispose of stolen motor vehicle parts, namely a front bumper, bonnet panel, front passenger seat, passenger door, convertible roof, and a warranty book, knowing them to be stolen. These parts had come from a 1990 Mazda MX coupe stolen from Coogee in September 1999, which NRMA Insurance Limited had paid out to the owner.
After acquiring the stolen vehicle, the defendant constructed a composite "cut and shut" vehicle by combining the front end of a damaged 1995 Mazda MX5 (purchased for $8,500) with the rear section of another 1990 Mazda MX5 (purchased for $250), filling in missing parts with components taken from the stolen vehicle. The finished composite was registered with the RTA and advertised for sale at $27,300, against a total outlay of approximately $17,300.
The Director of Public Prosecutions applied for a forfeiture order over the entire composite vehicle under the Confiscation of Proceeds of Crime Act 1989. The defendant contested the forfeiture, arguing that only the specific stolen parts (valued at $2,817.32) constituted "tainted property," not the vehicle as a whole (agreed present value: $13,250). NRMA Insurance Limited appeared as an interested party, claiming the value of the stolen parts.
Legal Issues
- Whether the entire composite vehicle constituted "tainted property" under the Confiscation of Proceeds of Crime Act 1989, or whether only the specific stolen parts carried that character
- Whether the hardship to the defendant, arising from the disproportion between the value of the convicted parts and the value of the whole vehicle subject to forfeiture, was sufficient to warrant refusing or limiting the forfeiture order
Decision
Dunford J held that the whole composite vehicle was "tainted property" within the meaning of the Act. Drawing on the approach in R v Hadad, his Honour accepted that a wide scope should be given to the phrase "tainted property." Applying the test from DPP (NSW) v King, property is tainted where it was utilised or employed with the aim or purpose of committing or furthering the commission of the offence in question.
On the facts, the defendant had not attempted to dispose of the stolen parts in isolation. The stolen components were only offered for disposal as constituent elements of the entire composite vehicle. The attempted disposal of the whole vehicle was therefore integral and essential to the commission of the offence, meaning the entire composite vehicle was used in connection with the serious offence, not merely the stolen parts.
On the hardship question, Dunford J acknowledged that disproportionate forfeiture can constitute hardship in some cases, as discussed in R v Bolger. However, his Honour concluded that permitting the defendant to retain the composite vehicle would allow him to profit from his offending, which would be contrary to the objects and philosophy of the legislation. The underlying purpose of the Act is to deny offenders the benefits of their crimes and thereby deter such conduct.
Orders Made
- Forfeiture order made over the composite Mazda MX5 vehicle (registration AHX 072) in favour of the State
- The property may be disposed of after 28 days if no appeal is instituted in the meantime
- Orders made in accordance with Short Minutes of Order signed by Dunford J
Key Takeaways
- The Supreme Court held that a composite "cut and shut" vehicle, only partly made up of stolen parts, can constitute "tainted property" in its entirety where the stolen parts were only ever offered for disposal as part of the whole vehicle.
- Under DPP (NSW) v King, the test for tainted property requires that the property was utilised with the aim or purpose of committing or furthering the commission of the relevant offence; it is not sufficient that the property was merely the location where an offence occurred.
- A wide construction of "tainted property" under the Confiscation of Proceeds of Crime Act 1989 can extend forfeiture beyond the precise items specified in a conviction, provided the required connection to the offence is established.
- Disproportion between the value of the convicted items and the value of the forfeited property is a relevant hardship consideration under s 18(1)(b), but will not automatically defeat a forfeiture order, particularly where forfeiture is needed to deny the defendant a profit from the offending.
- The legislative philosophy behind the Act, namely preventing offenders from benefiting from their crimes, weighed heavily in the court's refusal to limit the forfeiture to the convicted parts alone.
Legislation and Cases Referenced
Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 13, 18(1)
- Crimes Act 1900 (NSW), s 188
Cases:
- R v Hadad (1989) 16 NSWLR 476
- Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727
- Director of Public Prosecutions v Garner (1999, County Court of Victoria, unreported)
- R v Bolger (1989) 16 NSWLR 115