DPP (Commonwealth) v Ronen [2005] NSWSC 990

New South Wales Supreme Court

CITATION : DPP (Commonwealth) v Ronen [2005] NSWSC 990

HEARING DATE(S) : 26/09/05, 27/09/05, 28/09/05

JUDGMENT DATE : 7 October 2005

JUDGMENT OF : Whealy J at 1

DECISION : I order pursuant to s 48 of the Proceeds of Crimes Act 2002, in respect of the conviction of Ida Ronen of the offences set out in para 1 of the Schedule to the plaintiff's summons dated 23 April 2005 that Australian currency in the sum of $209,525.00 being currency seized on 7 February 2001 from Unit 16B, 5-11 Thornton Street Darling Point is forfeited to the Commonwealth. I make no order as to costs.

LEGISLATION CITED : Proceeds of Crimes Act 2002 (Commonwealth)

DPP v Jeffrey (1992) 58 A Crim R 310 at 320 CASES CITED : Sunshine Worldwide Holdings v South East Group Limited [2005] NSWSC 117 per Greg James J

PARTIES : DPP (Commonwealth) v Ida Ronen

FILE NUMBER(S) : SC 11557/05

Mr T. Game SC - Plaintff COUNSEL : Ms E. Fullerton SC; Mr Mark Buscombe - Defendant

Commonwealth Director of Public Prosecutions - Plaintiff SOLICITORS : Gilbert & Tobin - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

WHEALY J

FRIDAY 7 October 2005

11557/2005 - DIRECTOR OF PUBLIC PROSECUTIONS (Commonwealth) v Ida RONEN

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff filed a summons seeking an order under s 48 of the Proceeds of Crimes Act 2002 (Commonwealth). The order sought relates to Australian currency in the sum of $209,525.00. This currency was seized at the time search warrants were executed on 7 February 2001. The warrants were executed at Unit 16B, 5-11 Thornton Street Darling Point where the money was found in a safe located in the main bedroom. 2 On the date of the seizure the offender Ida Ronen was arrested and charged with two counts of conspiracy to defraud. She and her two sons Nitzan and Izhar Ronen were tried before a jury during 2004 and the early part of 2005. On Friday 28 January 2005 Mrs Ronen and her two sons were found guilty by a jury in relation to the two counts of conspiracy to defraud charges. The conspiracy related to an agreement in force and operative between about 1991 and the date of arrest 7 February 2001. The agreement was to skim the cash takings of a number of retail outlets managed by Ida Ronen and to conceal those takings from the Income Tax Commissioner. The implementation of the conspiracy required Ida Ronen to physically collect the cash from the retail shops and to sort it, analyse it and keep it, at least on a temporary basis, at her unit at Thornton Street Darling Point. Mrs Ronen kept books in which she analysed the total takings of the business and then calculated the distribution of cash amongst her sons and herself. In relation to the particular parcel of money found in the safe the evidence established that it had been culled from the takings of the retail shops, calculated for distribution purposes and set aside with a cash wrap containing the relevant calculation in the safe. The money was there so that it could be sent out of the country at a later stage to avoid detection by the authorities. There was ample evidence to demonstrate that Mrs Ronen had on earlier occasions sent money available for distribution to her two sons to Israel in this fashion. 3 I am satisfied that the proceedings in this matter commenced by way of summons filed on 21 April 2005 have been brought appropriately within the time permitted by the legislation. Secondly, I am satisfied that notice has been given to all relevant persons who may have an interest in the property. The forfeiture order that has been sought in the present matter is opposed by Mrs Ronen. The Crown has been represented in these proceedings by Mr T. Game SC. Mrs Ronen has been represented by Ms Elizabeth Fullerton SC and Mr Mark Buscombe. 4 There have been but two matters argued against the making of a forfeiture order in the present proceedings. The first relates to the question whether the cash monies in the safe may properly be categorised as "the proceeds of one or more of the offences" as that expression appears in s 48(1)(c) of the Proceeds of Crimes Act 2002. Secondly, while it has been admitted that the currency must, at the very least, fall within the definition of "an instrument" of the offence within the meaning of s 48(2) of the Act, Ms Fullerton SC has submitted that the court should in the exercise of its discretion refuse to make the order. 5 In simple terms, if I am satisfied that the money in the safe may properly be described as "the proceeds" of the offence I must order its forfeiture. On the other hand, if I am not so satisfied, I should accept that the money is properly described as an "instrument" of the offence but nevertheless in the exercise of the discretion I have I should decline to order its forfeiture.