When the penalty exceeds the crime

[grace]

When the penalty exceeds the crime

 

Many typical things happen in a typical month, and March 2006 was typical.

 

It started with yet another US televangelist (Pat Robertson this time) exposed as a charlatan. A week later Slobodan Miloševic died but, as usual, ethnic hatred did not. In Gaza, Israeli rockets killed 10 children.

 

"We are doing everything to prevent innocent people from being harmed, but this is a war and nothing is certain," Israel’s Air Force chief General Eliezer Shkedy said, as usual.

 

In a small pocket of the antipodes, tucked out of mind from the rest of the world, typical South Australian voters returned Mike Rann and his State Labor Government to power.

 

Everywhere, the world was as it always is.

 

Except Kawana George’s world.

 

It was a bit of a mess. On the last Friday of that month there was a loud knock at his Seacombe Gardens home – and when he opened the door, his wide eyes saw police waving a search warrant.

 

His surprise turned to alarm as the cops went through the kitchen cupboards and fridge, his lounge room, bedroom, wardrobes, and finally out to the garden shed where they found 12 marijuana plants and 20 newly hatched seedlings.

 

"They were plants for personal use," Mr George told The Independent Weekly.

 

"I was no Mr Asia. Nothing like that. I don’t sell marijuana and I don’t buy. I grow a few plants for myself."

 

In Adelaide, this isn’t unusual.

 

Thousands of South Australians – some say tens of thousands – once grew personal-use marijuana under the widely respected Dunstan premiership. Ten plants and you got off with an expiation notice. There were no evil cartels peddling the drug because people could grow their own.

 

Since its election in 2002, Rann’s Government has been progressively tearing up Dunstan’s legacy.

 

Anyone who grows more than a single plant can be in serious trouble. With increasing penalties, just 2kg of cannabis product can send you to jail for life, and so the crime lords have moved in.

 

Marijuana is covered by Health Minister John Hill’s Controlled Substances Act, but in practice the Minister for Health has less to do with illicit drugs than the Attorney-General Michael Atkinson, who steered the new Controlled Substances Amendment Bill through North Terrace. When it comes into effect, which it will soon, anyone with a single hydroponically grown cannabis plant can spend two years in a four-person maximum-security jail cell. It could be shared with murderers, rapists or armed robbers.

 

In March 2006, Mr George was charged with one count of producing cannabis. The professional electrician had also bypassed the meter to grow the crop, so he was charged with unlawfully using electricity as well.

 

Most people in this sort of a pickle call a lawyer. Mr George phoned a solicitor and it wasn’t long before the case came up in the Magistrates Court, where he pleaded guilty to both charges.

 

But the magistrate couldn’t impose a fine. In SA, someone sprung with more that 20 plants – the law makes no distinction between a seedling with two leaves and mature plants 2m tall – has to be sent to a higher court for sentencing.

 

Which is why, on February 1, 2007, Mr George and his solicitor stood before His Honour Michael Boylan in the sandstone edifice on Victoria Square where the District Court sits in Adelaide.

 

Judge Boylan heard the facts. The fine Boylan imposed totalled $2500 for both offences. That could have been the end of the matter, except it wasn’t. Groucho Marx said that politics is "the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and then applying the wrong remedies". He could have been living in South Australia.

 

Supported by the Opposition, the Government had a real doozy up its sleeve. It was the Criminal Assets Confiscation Act of 2005, a fiendishly long and complicated piece of legislation. Its nuances confound even Supreme Court justices. It transgresses natural justice, it denies basic human rights, and some lawyers argue the Act itself may be unconstitutional.

 

Its aim is simple: to make sure people don’t profit from their crime. If, through the proceeds of official corruption, a white-collar criminal buys a Bugatti and an off-shore island, the Government can theoretically confiscate both.

 

In reality, that doesn’t happen because SA has no Independent Commission Against Crime and Corruption, so these people tend not to get caught.

 

Catching cannabis growers is easier. Someone transporting drugs from SA to Sydney in a truck can have their truck confiscated as an "instrument" of crime under the Act.

 

If only the Government and Opposition had read Groucho, they might not have applied the wrong remedy.

 

Firstly, the law says the Government can seize your property even if you’re not convicted of any crime. A criminal court has to find you guilty "beyond reasonable doubt", but the Government can freeze your bank account, slap a lien on your house, take away your car and even take the paintings off your walls merely "on the balance of probability" that they’re proceeds of crime.

 

One of the few voices to complain about this when the Bill came through Parliament was the independent Member for Mitchell, Kris Hanna.

 

"It is unacceptable that people who could not be found guilty in a court of law are subject to the confiscation of their property," he said in a Parliamentary speech not reported by any newspaper, TV or radio news at the time.

 

"There is no guarantee in this Bill that the acquittal of a person means that they are safe from the clutches of the state," he continued.

 

"A person and their family, including their innocent dependants, can effectively be punished even though there was not enough evidence brought to the court by the prosecutor to say that the person actually committed the crime."

 

Even the conservative Graham Gunn, Member for Stuart, had worries.

 

"Questions I have on it are in relation to the average citizen, who may not have the ability or the resources to properly defend themselves, who may suddenly be confronted by an overenthusiastic prosecutor who wants to question their assets."

 

The Government’s response was frivolous. Gunn was interjected by the Attorney-General, who shouted an irrelevancy. It went like this.

 

Atkinson: "The Western Australian election was on the news."

 

Gunn: "That is an interesting thing which we will talk about at a later time.

 

I would not want to be sidetracked by the Attorney-General."

 

Atkinson: "There was very good coverage of the Western Australian election on news radio."

 

The Acting Speaker: "Order! The father of the house (Gunn) will be heard in silence."

 

Gunn: "Thank you; the Attorney is trying to bait me."

 

So Parliament passed the Act, and on one atypical day in the life of Kawana George came the startling news that the office of the Director of Public Prosecutions – the DPP – had begun the process of seizing the family house.

 

Mr George had committed a crime by growing a few dozen plants. He told the cops it was for himself and his mates. He was fined $2500. Now the DPP classified his home and land an "instrument of crime".

 

The DPP went to a magistrate for a restraining order under the Criminal Assets Confiscation Act. The order would stop him selling the home, even for legitimate reasons.

 

Mr George seemed certain to lose his house. His lawyer gave instructions to barrister Sophie Downey at Bar Chambers. Downey was joined by her senior counsel, Jonathan Wells QC.

 

Up to the Supreme Court they went, and finally to the Full Bench of the Supreme Court. The argument went backwards and forwards. It’s not an "instrument", the legal team told Justices Doyle, Vanstone and White.

 

By all means seize the hydroponic equipment, which was definitely an "instrument", but not the house, the lawyers said. It’s an abuse of process, they argued.

 

Mr George didn’t own his house outright. Like most people, he had a bank loan and a mortgage. Every month he paid his loan instalment; every month his equity increased. The Crown jewels were increasing in value.

 

The Crown’s behaviour through this process was legal but, arguably, morally despicable. It could have used section 47 of the Act, which says the court can order the forfeiture but has to take into account the circumstances of the crime: in Mr George’s case, the kiddies’ need for a roof over the nursery and the fact that the scene of the crime was the shed out the back.

 

It could have used section 74, which allows the victim to apply for exclusion of the house from forfeiture on the basis of hardship, and that the house was not bought with drug money.

 

But in this case the Crown relied on section 95, the so-called pecuniary penalty orders. The legislation is quite specific. It says that the court MUST – and this is very important, it MUST – make the order on application from the Director of Public Prosecutions.

 

Both sides said their piece. The justices retired to chambers and took off their wigs. We don’t know what they said there or how they made up their minds, but we do now have their much-awaited final judgement on the record.

 

Here’s what it said about the DPP’s use of section 95, the pecuniary penalty order.

 

"If the PPO is made, it will require payment of an amount of $105,269. That is more than 40 times the amount of the fine imposed. The amount of the PPO is not proportionate to the seriousness of the offence. It is pretty well certain that if the PPO is made, Mr George will lose his home.

 

The only way to meet the order will be to sell the land or to surrender it."

 

The justices then made their orders, and these were stunning. They ordered the case go back to the Magistrates Court. Mr George would be allowed to argue, before the magistrate, that his house and land be excluded from automatic forfeiture.

 

Back over the road to the Magistrates’ Court trotted Mr George and his legal team, and the house was duly excluded.

 

Even though the Act specifically instructs the court that it MUST make a pecuniary penalty order, Mr George and his kids had won. The pecuniary penalty order was withdrawn.

 

Parliament’s law has already been exposed as an ass. Now it had been kicked in the behind.

 

But Mr George isn’t the only one caught up in the absurd Criminal Assets Confiscation Act and Controlled Substances Regulations. Dozens of South Australians have fallen into its vortex and some may never emerge. In April last year, the Premier announced his Government’s "tough laws" had seen the seizure of $17.7 million worth of assets frozen in just their first year of operation.

 

And the man involved in this test case? Well, he had a different interpretation.

 

"If this sort of thing doesn’t stop, the Crown’s going to own half of Adelaide," Mr George said ruefully.

 

Kris Hanna told The Independent Weekly: "When laws about crime are made primarily to score good headlines, the innocent and those guilty of trivial offences face the risk of being crushed by the law."

 

"In the rush to look tough on crime, Rann and Atkinson are driving ordinary South Australians into poverty for minor offences," agreed Democrat MLC Sandra Kanck.

 

"The Labor Party promised new laws to allow the seizure of assets gained using the proceeds from crime," the Attorney-General told Parliament as he introduced the Bill, saying it targeted "organised crime and outlaw motorcycle gangs".

 

"This Bill fulfils those promises," he said.

 

March 2006 was a typical month.

 

Around 100,000 Indians protested against George Bush’s visit to Delhi. A US Congressman was jailed for accepting bribes, the Chinese Government promised that in future it would support the poor, and in South Australia someone promised a new scramjet engine could reduce flying times to London by 80 per cent.

 

Typical promises, universal failure.

 

Groucho Marx said politics applied the wrong remedies, but fortunately he had a solution.

 

"A child of five would understand this. Send someone to fetch a child of five."

 

Author: Hendrik Gout

Date: 16 January 2009

Source: Independent Weekly

http://www.independentweekly.com.au/news/l...me/1409266.aspx

Edited January 16, 2009 by grace

[bufo marinus]

Family home = $290 000

Old ute full of petrol = $500

1 brick = 20 cents

Putting the brick on the accelerator and aiming the ute at the court house before walking away = Priceless

[freddie]

That is one depressing read.

[67Special]

Stories like this always make me wonder why home grown terrorism isn't more common in this country.

 

So much for SA being the State to grow in. Good old Conservative QLD is feeling more pot-friendly everyday

[thedarkestone]

I think as Australians we can be too laid back. We just watch as our rights and freedoms are eroded. The problem is, we will wake up one day and think - how did we get here, why do we live in a police state? It makes me sick to think that the government can steal our houses etc and get away with it. Democracy? What a crock of shit. Time for the masses to rise up.

[mistyville]

I agree with you. It is time for the masses to rise and protest. This country is over ruled to buggery. We're becoming a 'dob in' society. People are urged to 'dob in' their neighbour if they see him watering his garden. I'm pissed off because I got dobbed in by a low life for having a few plants. I'm 64 years old and female. You can imagine how I felt about going to court. It was the most humiliating time of my life.....Mistyville

[jabez]

I agree with you. It is time for the masses to rise and protest. This country is over ruled to buggery. We're becoming a 'dob in' society. People are urged to 'dob in' their neighbour if they see him watering his garden. I'm pissed off because I got dobbed in by a low life for having a few plants. I'm 64 years old and female. You can imagine how I felt about going to court. It was the most humiliating time of my life.....Mistyville

 

 

When I got done they got all 33 plants put them on my front lawn and made me stand (hand cuffed) in the middle of them well two coppers stood on either side of me with big smiles on there faces, I just thanked one of them for showing everyone that I was a cannabis grower and not a criminal, there smiling faces quickly faded.

[Teucer]

Folks, I'm afraid we get the government we deserve.

 

As a few other posters here have said, we're far too laid back.

 

We NEED to fight back. We've been doing it since we were founded and we got a great country from it. Once we stopped, we got to where we are now.

 

Rise up you lazy shits!

[Naycha]

Folks, I'm afraid we get the government we deserve.

 

As a few other posters here have said, we're far too laid back.

 

We NEED to fight back. We've been doing it since we were founded and we got a great country from it. Once we stopped, we got to where we are now.

 

Rise up you lazy shits!

 

This is one of a handful of posts from you telling everyone how lazy they are for not standing up and fixing Australias' problems.

 

Teucer, what have you done lately?

[Indycar]

Naycha, he/she isn't the first or will be the last..

 

It's all too easy to sit in front of a PC 'n talk it up, while toking away. This is the main reason i've grown tired of most of the apparent do-gooders, when it comes to cannabis law reform. It's why i don't believe most of em have any credibility.

 

To post news articles constantly that have nothing else to offer to the OSA community, one policy parties 'n others that think that their court case is going to be a corner stone towards law reform are not only kidding themselves, but are also trying to lead others, up the garden path.

 

Now, in saying that. I don't think all are useless as tits on a bull. As I do still believe there is a small majority here, that are genuine. That small majority have my respect (they should know who they are, because i've left them alone).

 

The rest.. well, i think their a bunch of try-hards that either have no direction and/or idea, and won't amount to much else. Until something is established properly (organization, etc..) that hold similar beliefs as my own. I'm prepared to sit on the side line.