Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Tran [2013] NSWSC 1618 Hearing dates: 10 October 2013 Decision date: 10 October 2013 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to s 10A of the Criminal Asserts Recovery Act 1990 no person (other than any registered mortgagee dealing with its rights to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or otherwise attempt to deal with any interest in property (within the meaning of "interest in property" as defined in s 7 of the Criminal Assets Recovery Act 1990) of Tien Hung Tran, including the interest in property in the property specified in Schedule 1. (2) Liberty is granted to the plaintiff and Tien Hung Tran to apply on three days' notice. (3) The costs of obtaining these orders shall be costs in the cause. (4) Pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005, these orders are to take effect as of the date hereof. (5) The matter is stood over to be next before the Registrar on 6 November 2013. Catchwords: CONFISCATION - ex parte application for restraining order pursuant to Criminal Assets Recovery Act 1990 - whether power is mandatory - respondent convicted of obtaining electricity without authority - statutory preconditions in s 10A met -no discretion not to make order once certain matters established - orders sought made Legislation Cited: Criminal Assets Recovery Act 1990 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: New South Wales Crime Commission (plaintiff) Tien Hung Tran (defendant) Representation: Counsel: E Goh (plaintiff) (ex parte) Solicitors: NSW Crime Commission File Number(s): 2013/303434 EX TEMPORE Judgment 1The application of the plaintiff, in short, is for a restraining order, and what is sought in the order is contained in a summons (with regard to which I granted leave for it to be filed in court today), that order itself referring to schedule 1 of the summons. 2To be clear, the solicitor for the plaintiff has indicated that there is no application today for any of the other orders contained in the summons, including the orders that are referred to in schedule 2, to be made by me. 3The application has been made ex parte and the matter has been founded upon the proposition that, if the defendant were aware of the proceedings, he could seek to readily dispose of the property or otherwise deal with it in a way to defeat the restraining order, and in the circumstances I am not satisfied that the plaintiff should be required, pursuant to s 10A of the Criminal Assets Recovery Act 1990 (to which I shall subsequently refer as "the Act"), to give notice to the defendant of these proceedings. 4The background, as revealed by an affidavit of Jonathan Lee Sparke of 4 October 2013, is that the defendant was convicted in the Fairfield Local Court of an offence of using, consuming or wasting electricity without authority. It is stated, in a nutshell, that he was obtaining or stealing electricity from the electricity grid. 5It is noteworthy that there is no material to demonstrate the value of the electricity said to have been stolen but the facts sheet, annexure B to the affidavit to which I have referred, shows that on 11 July 2011 the defendant pleaded guilty to the offence, was convicted of it, and was sentenced in the Local Court to perform 80 hours' community service. 6All of those facts are highly suggestive that this was not a very serious matter and that the quantum of the electricity stolen was not great. 7It is deposed to in the affidavit, and I accept, that the offence carries a maximum penalty of imprisonment for five years when dealt with on indictment. I also accept that the offence is one that has the flavour of dishonesty. 8It is said accordingly that the offence of which the defendant was convicted falls within the definition of "serious crime-related activity" contained in s 6 of the Act. 9In particular, by way of the definition contained in s 6(2)(d), s 10A of the Act founds the application. It is noteworthy that it is expressed in rigid, indeed mandatory, terms. In short, pursuant to s 10A(5) I am required to make a restraining order if a number of things are demonstrated. 10It seems that Parliament has determined that I should have no discretion with regard to the matter even when, in truth, it appears that the offence that founds the application may be a rather trivial one. And furthermore it seems that the offence is alleged to have occurred about two and a half years ago, and the conviction is said to have been entered well over two years ago. 11The section requires me to be satisfied of the following: first, that the application is supported by an affidavit. I am so satisfied. Secondly, that the affidavit is of an authorised officer. I am so satisfied. Thirdly, that the authorised officer suspects, in short, that the defendant has engaged in a serious crime-related activity or activities. I am satisfied that the authorised officer holds that suspicion. Fourthly, that the defendant states the grounds on which that suspicion is based. I accept that that is the case; in particular the affidavit refers to the court orders reflective of the plea of guilty and conviction. 12Finally, I need to be satisfied that there are reasonable grounds for any such suspicion. Again, the fact that the defendant pleaded guilty to the offence and was convicted of it leads me to be satisfied of that factor. 13Clearly the exclusion in s 10A(6) does not apply to this activity that is said to have occurred wholly within New South Wales. 14It is also said, pursuant to s 10A(7), that I may refuse to make a restraining order if the State refuses to give to the Court, in short, an undertaking as to payment of damages or costs, and again the order is proposed to be founded upon the plaintiff giving me the usual undertaking as to damages. The solicitor for the plaintiff has indicated that the proposed order would be founded not only upon an undertaking as to damages but, in accordance with s 10A(7), also an undertaking as to costs, or both. 15I must say I have misgivings about the making of the order on three bases. The first is the lack of material as to the quantum of electricity actually dishonestly obtained. The second is the effluxion of time since the offence was committed. And the third basis is the appropriateness of making an order founded upon criminality that, although it complied with the definition to which I have referred of serious crime-related activity in s 6 of the Act, nevertheless needed to be dealt with by way of a criminal penalty of 80 hours' community service. 16However, for the reasons that I have explained, it seems that, as a result of the fact that I am satisfied with regard to certain factual matters, Parliament has seen fit to make the order in effect mandatory. 17Accordingly, upon the plaintiff giving the usual undertaking as to damages or to costs or both, the giving of which by its solicitor being noted, and having regard to the matters contained in the affidavit of Jonathan Lee Sparke sworn 4 October 2013, and there being reasonable grounds for the suspicion stated therein, the Court orders: (1)Pursuant to s 10A of the Criminal Asserts Recovery Act 1990 no person (other than any registered mortgagee dealing with its rights to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or otherwise attempt to deal with any interest in property (within the meaning of "interest in property" as defined in s 7 of the Criminal Assets Recovery Act 1990) of Tien Hung Tran, including the interest in property in the property specified in Schedule 1. (2)Liberty is granted to the plaintiff and Tien Hung Tran to apply on three days' notice. (3)The costs of obtaining these orders shall be costs in the cause. (4)Pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005, these orders are to take effect as of the date hereof. (5)The matter is stood over to be next before the Registrar on 6 November 2013. ********** Amendments 06 November 2013 - "hereto" removed as Schedule 1 not to be published. Amended paragraphs: Coversheet and [17] 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. Decision last updated: 06 November 2013