Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Dykyj [2013] NSWSC 2031 Hearing dates: 9 & 12 December 2013 Decision date: 12 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave is granted to the Plaintiff to amend its summons, filed in this proceeding on 30 August 2011, to seek an order pursuant to section 22 of the Criminal Assets Recovery Act 1990 ("the Act") that the interest in property of Jarome Dykyj ("the Defendant") in the property specified in the Schedule hereto (being an interest in property of a person, namely the Defendant, suspected by Jonathan Lee Spark, an authorised officer for the purposes of the Act, of having been engaged in serious crime related activity) be forfeited to, and vest in, the Crown. 2. Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005 ("UCPR") judgment be given for the Plaintiff on its claim for an order pursuant to section 22 of the Act. 3. Pursuant to Rule 13.1 of the UCPR judgment be given for the Plaintiff on its claim for an order pursuant to section 27 of the Act that the Defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from the illegal activity of the Defendant that took place not more than six (6) years before the making of the application for the proceeds assessment order. 4. The Defendant pay the costs of this application. 5. Leave is granted to the Defendant pursuant to sections 25(4)(a) and 26(4)(a) of the Act to make application for exclusion orders on or before Thursday, 12 June 2014. SCHEDULE 1. The whole of the property described as Lot 88 in Deposited Plan 238573 at Mt. Druitt, Local Government Area of Blacktown, Parish of Rooty Hill, County of Cumberland, also known as 58 Vincennes Avenue, Tregear, New South Wales and registered in the name of Jarome Dykyj. 2. The whole of the property described as Lot 326 in Deposited Plan 31990 at St Marys, Local Government Area of Penrith, Parish of Rooty Hill, County of Cumberland, also known as 7 Poplar Street, North St Marys, New South Wales and registered in the name of Jarome Dykyj. 3. The whole of the property described as Lot 32 in Deposited Plan 215243 at St. Marys, Local Government Area of Penrith, Parish of Rooty Hill, County of Cumberland, also known as 115 Maple Road, North St Marys, New South Wales, and registered in the name of Jarome Dykyj. 4. The whole of the property described as Lot 279 in Deposited Plan 215243 at St Marys, Local Government Area of Penrith, Parish of Rooty Hill, County of Cumberland, also known as 74 Jackaranda Road, North St Marys, New South Wales, and registered in the name of Jarome Dykyj. 5. The whole of the property described as Lot 14 in deposited Plan 734780 at Swanhaven, Local Government Area of Shoalhaven, Parish of Farnham, County of St Vincent, also known as 15 Justfield Drive, Sussex Inlet, New South Wales, and registered in the name of Jarome Dykyj. 6. The whole of the property described as Lot 484 in Deposited Plan 221442 at Kingswood, Local Government Area of Penrith, Parish of Castlereagh, County of Cumberland, also known as 25 Caloola Avenue, Penrith, New South Wales, and registered in the name of Jarome Dykyj. 7. 1928 Chevrolet Sedan, NSW Registration number CHV28R, and registered in the name of Jarome Dykyj. 8. 1983 Mazda Van, NSW Registration number BK06QZ, and registered in the name of Jarome Dykyj. 9. 2009 Holden Utility, NSW Registration BB06AW, and registered in the name of Jarome Dykyj. 10. Funds held in a St George Bank (a division of Westpac Banking Corporation) Power Saver account number 0052217113, and held in the name of Jarome Dykyj. 11. Funds held in a St George Bank (a division of Westpac Banking Corporation) Complete Freedom account number 0466535592, and held in the name of Jarome Dykyj. Catchwords: CRIMINAL LAW - proceeds of crime - proceeds assessment order - application for adjournment by defendant - no defence to order Legislation Cited: Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Uniform Civil Procedure Rules Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff) Jarome Dykyj (Defendant) Representation: Counsel: I Temby QC (Plaintiff) In person (Defendant) Solicitors: New South Wales Crime Commission (Plaintiff) In person (Defendant) File Number(s): 2011/280910) Judgment 1The Plaintiff moves by Motion filed on 19 November 2013 seeking leave to amend the summons to seek an order pursuant to s 27 of the Criminal Assets Recovery Act 1990 and seeking pursuant to rule 13.1 UCPR that summary judgment be given for the Plaintiff on its claim for an order pursuant to s 27 of that Act. 2Section 27 (2) provides that the Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was at any time not more than six years before the making of the application for the order engaged in a serious crime related activity involving an indictable quantity or a serious crime related activity involving an offence punishable by imprisonment for five years or more. 3The Defendant was convicted on 27 July 2012 of supplying 2.228 kilograms of cannabis contrary to s 25 (1) of the Drug Misuse and Trafficking Act 1985. Under s 6(2)(b) of the Criminal Assets Recovery Act that is a serious crime related activity. 4The Defendant appears this morning and asks for an adjournment of the motion. He said that he thought that what was going to be sought by the Plaintiff was an examination on oath by him and I took him to say that he was agreeable to that. 5This matter first came before me on Monday of this week. There was no appearance for the Defendant but a friend of his asked to be heard to indicate that the Defendant was ill and provided a medical certificate which expired yesterday. It was in those circumstances that I indicated I would adjourn the matter on Monday to today but that the matter would be heard today. 6The Defendant appears to have done nothing since he was served on 25 November with this notice of motion. At the present time he is formally represented by Rodney Van Houten who filed a notice of appearance on his behalf on 5 September 2011. Mr Dykyj tells me that Mr Van Houten is not in fact acting for him at the moment and I have been informed by the Plaintiff that a Notice of Intention to File a Notice Ceasing to Act has in fact been filed by Mr Van Houten after service of the present motion upon him. 7It does not seem to me that there is any basis for adjourning the motion. The Defendant has had sufficient opportunity to engage legal assistance if he wished to do so to defend the motion. However, the terms of s 27(2) would appear to indicate that there would be little defence that the Defendant would be able to offer in all of the circumstances. 8For that reason I decline to adjourn the Motion. I am satisfied in terms of s 27(2) that a proceeds assessment order should be made. Leave is given to the Plaintiff to amend the Summons in the form which I will initial and date today and place on the file. 9I make orders in terms of paragraphs 2 and 3 of a draft order provided to me. I order that the Defendant pay the costs of the present application. I grant leave to the Defendant pursuant to s 25 and s 26 of the Act to make application for exclusion orders on or before Thursday, 12 December 2013. These orders may be entered forthwith. ********** 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: 01 April 2014