R v Shane Norman Zerafa [2003] NSWCCA 101

Reported Decision : 139 A Crim R 439

New South Wales Court of Criminal Appeal

CITATION : R v Shane Norman Zerafa [2003] NSWCCA 101 revised - 15/04/2003 HEARING DATE(S) : 10 April 2003 JUDGMENT DATE : 10 April 2003

JUDGMENT OF : Hidden J at 18; Bell J at 19; Buddin J at 1 DECISION : Appeal allowed, the order made in the District Court be set aside, and an order made that the respondent forfeit the sum of $13,500.

CATCHWORDS : Crown appeal against refusal to make forfeiture order - respondent found in possession of cash - convicted of serious drug offences - appeal allowed. LEGISLATION CITED : Confiscation of Proceeds of Crime Act 1989 Drug Misuse and Trafficking Act 1985 DPP v King (2000) 49 NSWLR 729 R v Steven Robert Devine [2001] TASSC 8 CASES CITED : R v Galek (1993) 70 A Crim R 252 R v Hadad (1989) 16 NSWLR 476 R v Sultana (1992) 74 A Crim R 27 PARTIES : Crown (Applicant) Shane Norman Zerafa (Respondent) FILE NUMBER(S) : CCA 60024/2003 COUNSEL : PJP Power SC (Crown) Respondent in person SOLICITORS : SE O'Connor (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1223 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60024/03

HIDDEN J BELL J BUDDIN J

THURSDAY 10 APRIL 2003 REGINA v SHANE NORMAN ZERAFA Judgment 1 BUDDIN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 92(4) of the Confiscation of Proceeds of Crime Act 1989 (the Act) against a refusal by Judge Nicholson on 29 January 2003 to make a forfeiture order arising from proceedings brought against the respondent. 2 On 8 November 2002 the respondent was sentenced by his Honour in respect of various offences. For present purposes it is only necessary to refer to the fact that the respondent was sentenced to terms of imprisonment following his pleas of guilty to an indictment containing two counts. The first alleged that he had, between the 2 June and 16 August 2000, knowingly taken part in the manufacture of methylamphetamine contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. The second count alleged that he had, between the same dates, supplied methylamphetamine, contrary to s 25(1) of the same Act. 3 At the time of the respondent's arrest, the police executed a search warrant upon his premises. They located six mobile phones, a Toyota Camry motor vehicle and $13,500 in cash. His Honour ordered forfeiture of the mobile phones and the motor vehicle. His Honour's decision not to also order forfeiture of the cash has occasioned the present appeal. The respondent appeared unrepresented in this Court. He nevertheless argued his case with considerable ability and clarity. 4 Section 13 of the Act deals with applications for confiscation orders. Subsection (2) provides that "[i]f a person is convicted of a drug trafficking offence, an appropriate officer may apply to an appropriate court for a forfeiture order against property that is tainted property in respect of the offence". "Tainted property" is defined in s 4 of the Act as meaning property that: