Insights

State of Queensland v Noble: Considerations in Granting Forfeiture Orders after an Animal Cruelty Conviction

State of Queensland v Noble concerns an application for a forfeiture order against an elderly man guilty of multiple counts of animal cruelty. The parties agreed that the property in question was “tainted” and subject to possible forfeiture but differed on what the court should consider when deciding the application. Noble came after broad community demands to ban the greyhound racing industry throughout Australia and after a planned ban in New South Wales which was later reversed.

The respondent, Thomas Noble, pleaded guilty to fifteen counts of serious animal cruelty pursuant to section 242 of the Criminal Code Act 1899 (Qld). The offences involved the use of live piglets, rabbits, and possums to train greyhounds for racing purposes. All offences are confiscation offences, and they occurred between 20 August 2014 and 15 October 2014 on the respondent’s 40 acre property in the locality of Churchable. Noble received a suspended sentence of three years imprisonment.

The applicant, the State of Queensland, applied for a forfeiture order pursuant to Chapter 3 of the Criminal Proceeds Confiscation Act 2002 (Qld) (“the CPCA”), within the six months required by section 106(1)(a). The subject of the application was the respondent’s Churchable property.

Judge Crow found the property to be “tainted” (pursuant to section 104 CPCA) by the animal cruelty offences, establishing a “substantial connection” between the offences and the property which was “not difficult to establish.” Counsel for the respondent conceded this point, agreeing with the applicant’s construction of section 151(3) of the CPCA.

The point of contention was the court’s application of its discretion to make a forfeiture order. Section 151(2) of the CPCA establishes four considerations the court may have regard to:
Any hardship there is expected to be caused to anyone by the order;
The use that is ordinarily made or is intended to be made by the property;
The seriousness of the offences concerned; and
Anything else the court considers appropriate.

Judge Crow acknowledged a further fifteen considerations outlined by Justice Bond in State of Queensland v Statham. Although these considerations were derived from the facts of Statham, His Honour regarded them as broadly applicable to this case. The applicant argued that a forfeiture order was consistent with the object of the CPCA, namely, the removal of financial gain through crime and financial loss in connection with crime. His Honour also acknowledged a deterrent object within the CPCA and that such the requested order would have that effect although the forfeiture itself would not be a punishment for the offences should it be granted.

Judge Crow considered the following in his decision:
At the time of this case, Noble and his wife were 71 years of age and 69 years of age, respectively;
The respondent had “no relevant prior convictions;”
The property was fully paid for and fully developed prior to the offences occurring;
No part of the value of the property was acquired through the offences;
Minimal financial gain came from the offences;
The offences involved heinous animal cruelty, involving:
Use of small animals as live bait;
Their subjection to painful and prolonged deaths in order to develop a “bloodlust” in the greyhounds (per Judge Horneman-Wren SC at first instance);
A minor portion of the property was used in relation to the offences;
A forfeiture order cannot divide the property in order to seize only part of it;
The respondent had full involvement in the offences;
The respondent had a significant interest in the property as its sole registered proprietor;
Mrs Noble likely holds an equitable interest in the property;
Mrs Noble owns a separate property at Karrabin;
The property is the only income source for the respondent and his wife via rent and their only significant retirement asset;
The respondent suffered from untreatable illnesses;
Mrs Noble was an innocent party whose treatment of medical conditions was funded through rental income from the property;
The only connection between the offences and the property is that it was the physical place in which the offences occurred;
The above discretionary considerations outweigh the deterrent factor of a forfeiture order;
Deprivation of self-sufficiency through forfeiture is detrimental to society as it would have likely resulted in the respondent and his wife relying on welfare; and
The forfeiture must be proportionate with the offences.

At [34], Judge Crow stated that “there is no evidence to suggest there was any financial gain at all let alone substantial gain from involvement in the serious criminal offences.” However, at [71], his Honour said that “the agreed schedule of facts identified the number of trials such that the actual proceeds of crime is somewhere between $635 and $1270.” One must assume that his Honour considered “financial gain” to be profit and “proceeds” as income before business costs are subtracted. The point is not clarified in the reasons.

In weighing the competing factors Justice Crow determined that a forfeiture order would not be appropriate primarily due to issues of proportionality, the health and financial circumstances of the respondent and his wife, and the hardship that forfeiture would cause the elderly couple. The application was dismissed.

The decision provides a helpful discussion and application of the principles of criminal forfeiture to the difficult case. Unsurprisingly, such matters tend to raise much more complexity than might be imagined when such legislation is progressing through the Parliament.

Stephen Keim SC
Xavier Radnedge
9 April 2018