On 12 April 2019, his Honour Judge Higham dismissed the DPP’s application for a forfeiture order in DPP v Richardson [2019] VCC 512. The case is significant because it concerns an application by the DPP for a forfeiture order in relation to a farm on the basis that the farm was “used in or in connection with” the commission of historical sex offences by Mr Richardson.
Background
Mr Richardson had been found guilty by a jury of nine charges of indecent assault upon a male person and two charges of buggery. The sexual offences had occurred at a farm in Harkaway, Victoria, between 1963 and 1973. The victims were between 11 and 14 years old.
There were two principal issues for determination, namely:
- whether the farmhad been “used” in or in connection with the commission of the offences; and
- if so, whether, as a matter of discretion, forfeiture of the farm should be ordered.
There are only two earlier decisions in which courts have considered whether property wasused in or in connection with the commission of sexual offences: King [2000] 49 NSWLR 727 and DPP v Garner (unreported, County Court of Victoria, Judge Kelly, 26 April 1999).
After considering the various authorities concerning the proper construction of the expression “used in or in connection with”, including Chalmers v The Queen [2011] VSCA 436, Judge Higham concluded that the farm property was used in or in connection with the sexual offending. His Honour found (from [31]):
The features of the farm were themselves inducement enough to attract boys, as the evidence of [the victims] makes clear. The farm was actively promoted as an attractive and healthy venue where boys could be free to enjoy the bush. It was those attributes that the Respondent promoted as part of a deliberate stratagem to persuade parents to, if necessary, grant permission and to lure the child victims to the property. It was of particular use when persuading children from unhappy domestic situations to come and stay.
In addition to providing a healthy rural destination that would not arouse parents’ suspicions, the Harkaway farm provided for the Respondent a location of complete privacy which was used systematically over a period of a decade to facilitate his offending.
Once at the Harkaway farm, the victims were removed from any parental or adult oversight and were subject to the Respondent’s whims and desires.
I find:
- The Harkaway farm was not merely the location [where] the offending opportunistically took place.
- The Harkaway farm was an important accessory for the predatory grooming of the victims.
- The Harkaway farm was enlisted to the Respondent’s purpose.
- The Harkaway farm was used in connection with the commission of the offences on the indictment.
- There is a sufficient connection between that use and the offending.
- The Harkaway farm is tainted property within the meaning of the [Confiscation Act 1997].
His Honour’s then considered the question of hardship that might arise from the forfeiture of the property. It was not in dispute that Mr Richardson was 82 years old, suffered from a range of medical conditions, was in custody and yet to be sentenced for his offending and had owned the property for 57 years, it having been purchased in 1962 for $1,850 without a mortgage. It was also not in the dispute that the property had been the primary residence of Mr Richardson for approximately 37 years and had a present day value of approximately $1 million.
His Honour noted:
As stated by Kaye J, the question is ultimately whether an order for forfeiture of the property would involve undue hardship to the Respondent which would be unacceptably disproportionate, particularly in comparison to the Respondent’s offending and his antecedents, and his use of the property.
His Honour then set out the matters to which he had regard in considering the exercise of the discretion to order forfeiture (at [46]):
- The intent of the legislation.
- The gravity of the offending and its lasting impact upon its victims.
- The historical nature of the offending, including that it finished 45 years ago.
- The Respondent’s antecedents, namely his prior good character and the life he has lived since the offending ended.
- That the property was not purchased with any tainted funds.
- That the property was not bought with a purpose of use in connection with the offences of which the Respondent has been found guilty.
- The value of the property.
- The Respondent’s advanced age.
- The Respondent’s undoubted multiple and complex medical conditions.
- The Respondent’s manifest inability to gain employment.
- The Respondent’s inability to raise funds to purchase a future home.
- The Respondent’s reliance, if forfeiture were ordered, upon the funds in a bank account from which he would have to pay for housing and for aged care (being the sum of about $270,000).
- The significant prospect of homelessness should the forfeiture be ordered.
After considering each of these matters, his Honour stated that he could not be satisfied that it is appropriate to make the order for forfeiture sought by the DPP (at [47]).
The DPP contended, in the course of the hearing, that the court had the power to make a partial forfeiture order, notwithstanding the fact that the title of the property was in the sole name of Mr Richardson. The position of Mr Richardson was that the court had no power to make such partial forfeiture order in respect of a single title. His Honour concluded that the court did not have power to order partial forfeiture where Mr Richardson was the sole registered proprietor of the property and no other discernible interests were held by third parties in the property.
Conclusion
The case is important in that it, for the first time since 1992, considered the operation of the Confiscation Act 1997 in the context of forfeiture based on sexual offending. It is clear that in appropriate circumstances, property may well be regarded as having been used in or connection with the commission of sexual offences. Thereafter, it is a matter of assessing the discretionary factors to determine whether, in the exercise of that discretion, forfeiture should be ordered or whether that would be disproportionately harsh so as to give rise to undue hardship.
