Cannabis grower will keep house

A convicted drug cultivator will keep his home – formerly a cannabis grow house – after agreeing to pay out law-enforcers trying to seize the property under criminal assets laws.  The settlement, negotiated late last month, brings a close to an intriguing case concerning the ACT’s powerful confiscation legislation, ultimately resulting in the intervention of the territory Government.  Lawyers for David Sean Deane argued a prosecution bid to seize the house was a breach of his human rights and an ”abuse of process”.  But court documents show the man has now agreed to pay the office of the Director of Public Prosecutions $10,000. In return the territory will drop its bid to seize the Flynn house, in which Deane had an equity of about $150,000, as property ”tainted” by the commission of a crime.

Deane’s legal arguments, now moot points because of the settlement, threatened to throw the territory’s criminal assets laws into disarray and prompted the ACT Government Solicitor’s office to intervene.   The laws allow prosecutors to restrain and confiscate not just the proceeds of crime but property used in the commission of an offence – including cannabis grow houses.  Property worth almost $2.7 million was restrained last financial year, according to the DPP’s annual report, a figure dwarfing the $126,000 frozen from the previous year.  The increase was largely because five houses were restrained.  Deane served six months in weekend jail, and is still serving an 18-month suspended sentence, after pleading guilty to cultivating a traffickable quantity of cannabis plants.  Police raided the property in July 2009 and found 37 mature cannabis plants in the garage and the basement, along with a sophisticated hydroponics set up. They discovered light shades and globes worth more than $3000 – all of which Deane has agreed to forfeit under the terms of the settlement.

Earlier this year the ACT Supreme Court granted a restraining order over the Flynn house which ordinarily, given Deane was already convicted, would have automatically forfeited the house within two weeks.  But solicitors from Kamy Saeedi Lawyers, acting for Deane, argued the order should be revoked because it was an acquisition of property on unjust terms.  They also submitted the order amounted to double jeopardy – punishing a person for the same crime twice – and would breach the Human Rights Act by depriving Deane and his family of their home.  Barrister David Mossop wrote, ”It would result in the loss of [his wife’s] and her young children’s home in circumstances where they are entirely innocent of any wrongdoing and there is no capacity for the court to take into account hardship to them.”  And Deane’s counsel suggested the order was invalid because ”the only relevant property owned by Deane is a Crown lease” from the Commonwealth, a point not reflected in the wording of the original application.

But the DPP and the ACT Government Solicitor’s office rejected the double jeopardy question, arguing the High Court had previously ruled forfeiture did not legally amount to punishment.  In submissions the Government Solicitor said the family’s right to privacy and a home was not relevant because the loss of the home was a foreseeable outcome of Deane’s crime.  Assistant Director of Public Prosecutions Alyn Doig also argued asset orders were not an abuse of power.

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