New South Wales Supreme Court CITATION : NSW Crime Commission v Antonio Greco [2005] NSWSC 1227 HEARING DATE(S) : 6 September 2005 JUDGMENT DATE : 6 September 2005 JUDGMENT OF : Latham J DECISION : Pursuant to s 27 of the Criminal Assets Recovery Act the first defendant/respondent, that is Tony Greco, pay to the Treasury the amount of $407,084, being the amount assessed by the Court as the value of the proceeds derived from the illegal activities of the first defendant that took place not more than six years before the making of the application for the assessment order and, secondly, that the first defendant/respondent pay the costs of the plaintiff of this application. ; I further make an order pursuant to s 12(1) of the Criminal Assets Recovery Act 1990, that is, that a restraining order made in these proceedings on 14 April 2002 in respect of the interest in the property of the first defendant/respondent be varied so as to apply only to the interests in property of the first defendant/respondent specified in the Schedule, being the whole of the property described as lot 16, section 2 in ; DP1094, Parish of Kogarah, Municipality of Northumberland and registered in the name of Cosimo Romeo and Antonio Greco as joint tenants. CATCHWORDS : Proceeds Assessment Order - Restraining Order - Variation Criminal Assets Recovery Act 1990 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Criminal Assets Recovery Regulations 2000 Plaintiff - NSW Crime Commission Defendant - Antonio Greco PARTIES : FILE NUMBER(S) : SC 10930/03 I Temby QC - Plaintiff COUNSEL : No Appearance JM Giorgiutti - Plaintiff SOLICITORS : LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J 6 SEPTEMBER 2005 10930/03 NSW CRIME COMMISSION v ANTONIO GRECO JUDGMENT 1 HER HONOUR: The New South Wales Crime Commission, being the plaintiff, moves on summons filed on 14 April 2003 and in particular para 6 of that summons. The plaintiff seeks an order pursuant to s 27 of the Criminal Assets Recovery Act 1990 that Antonio Greco, also known as Tony Greco, the respondent pay to the Treasury an amount assessed by the Court as the value of the proceeds derived from the illegal activities of Antonio Greco that took place not more than six years prior to the making of the application. 2 Section 27 subs (2) of the Criminal Assets Recovery Act 1990 provides that the Court must make such an order if the Court finds it be more probable than not that the respondent was, at any time not more than six years before the making of the application for the order, engaged in a serious crime-related. For the purposes of this application, the plaintiff relies on a serious of crime-related activity involving an indictable quantity of cannabis. 3 The plaintiff must, therefore, satisfy the Court on the balance of probabilities that at any time after 14 April 1997 the respondent has engaged in serious crime-related activity. A serious crime-related activity is a reference to a serious criminal offence whether or not the person has been charged or convicted (see s 6(1) of the Act) and a reference to a serious criminal offence is a reference to a drug trafficking offence. 4 By s 6(3)(a) of the Act an offence against s 23 of the Drug Misuse and Trafficking Act 1985 is a drug trafficking offence, as is an offence against s 27 insofar as it relates to aiding the commission of a s 23 offence. 5 By s 23 of the Drug Misuse and Trafficking Act it is an offence to cultivate or knowingly take part in the cultivation of a prohibited plant, defined in s 3 as a cannabis plant, and by the Schedule to the Act the indictable quantity applicable to cannabis plants is fifty. 6 The serious crime-related activity on which the plaintiff relies is as follows: on 13 February 2003 a property at 21R Days Road, Dubbo was entered by police and a large cannabis plantation was discovered. A person by the name of Michael Greco, the son of the respondent, was arrested and a total of 9995 cannabis plants were found on the property. That is established by the affidavit of R J Fardell sworn 22 September 2003. 7 On 14 February 2003 an expert agronomist, P Gardiner, entered the property and identified 462 plants as cannabis plants. That is a sufficient quantity for the purposes of the definition of serious crime-related activity. (See the affidavit of P Gardiner sworn 12 January 2004). 8 The plaintiff submits that the respondent was, at the very least, knowingly concerned in the cultivation of the cannabis or aided in that cultivation, given the following circumstances: 1. He took the main role in purchase of the property, 21R Days Road, Dubbo in the name of Cosimo Romeo, that person being the son-in-law of the respondent, between 20 April and 13 July 2001. (See affidavit of J Russ sworn 8 October 2004); 2. Between 30 May and 21 July 2002 the respondent took the main role in arranging for a dam to be installed in the Days Road property and on 21 July he paid $16,000 for the work done. (See affidavit of Mac Brown sworn 25 October 2004). 3. The respondent purchased irrigation equipment from Western Irrigation on 17 and 23 October 2002 and it was installed on the property. (See affidavits of K Fields sworn 29 January 2004 and Tim Hinds sworn 29 January 2004). 4. On 18 November 2002 the respondent hired a mini loader and an auger for three days. (See affidavits of T Dormer sworn 21 January 2004). That machinery was suited to the purpose of planting a large number of cannabis plants. 9 This evidence satisfies me on the civil onus that the respondent was knowingly concerned in a serious criminal offence and he was, therefore, engaged in a serious criminal-related activity involving more than an indictable quantity of a prohibited drug. 10 As to the remaining requirements for the purpose of the application, the Commission has given notice of the restraining order and of the proceedings pursuant to cl 5(2) of the Criminal Assets Recovery Regulations 2000 (see the affidavit of A Mercadente sworn 16 February 2004) and pursuant to that notice there have been some matters drawn to the attention of the Commission as follows: David Cohen, solicitor, entered an appearance for Cosimo Romeo on 15 February and on 5 September 2005 in respect to this application. However, no appearance has been entered on behalf of the respondent, Antonio Greco. Maria Greco, the wife of the respondent, has, however, filed an application in the Family Court on 20 June 2005 seeking orders that the respondent transfer to her his interest in certain properties and various Commonwealth Bank accounts which are in the husband's name. I am informed that there has been some agreement reached in respect to the present application, having regard to the respondent's wife's application. 11 By s 27(1) of the Act, if a proceeds assessment order is made then the assessment is as to the value of the proceeds derived from the illegal activities that took place not more than six years before the making of the application for the order, that is to say in the period from 14 April 1997. By s 28(1)(e) the Court is to have regard to the individual's income and expenditure and by subs 28(3), if evidence is given as to the individual's expenditure during the relevant six-year period, the Court is to treat the amount thereof as being derived from illegal activities except to the extent that the Court is satisfied that the expenditure is income unrelated to illegal activities. 12 Mr M W Seagrave, a certified practising accountant, has sworn two affidavits, both of 19 August 2005 wherein Mr Seagrave has assessed the expenditure by the respondent in the relevant period as not less than $565,058. Mr Seagrave has also assessed the respondent's income from other than illegal activities as $157,974, leaving a balance of $407,084. I am, therefore, satisfied, on the basis of the affidavits sworn by Mr Seagrave, at the appropriate amount for the purposes of the order to be made is $407,084. 13 Accordingly, I make the following order: Pursuant to s 27 of the Criminal Assets Recovery Act the first defendant/respondent, that is Tony Greco, pay to the Treasury the amount of $407,084, being the amount assessed by the Court as the value of the proceeds derived from the illegal activities of the first defendant that took place not more than six years before the making of the application for the assessment order and, secondly, that the first defendant/respondent pay the costs of the plaintiff of this application. I further make an order pursuant to s 12(1) of the Criminal Assets Recovery Act 1990, that is, that a restraining order made in these proceedings on 14 April 2002 in respect of the interest in the property of the first defendant/respondent be varied so as to apply only to the interests in property of the first defendant/respondent specified in the Schedule, being the whole of the property described as lot 16, section 2 in DP1094, Parish of Kogarah, Municipality of Northumberland and registered in the name of Cosimo Romeo and Antonio Greco as joint tenants. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.