You may be more than a bit alarmed to know that if you have been charged with cultivating cannabis in your own home then your home may be at risk of forfeiture. The Government (via the Director of Public Prosecutions (‘the DPP’)) can make an application for the forfeiture of your home if you have used it in the commission of an offence that is classified as a ‘serious offence’ under the Criminal Assets Confiscation Act SA (‘the CAC Act’).
The DPP can bring an application without any warning to you
The DPP could initiate the forfeiture proceedings before your guilt or innocence is even decided and certainly if you have pleaded guilty and had your matter finalised, the DPP can then bring an application for forfeiture without any warning to you. There are three basic legal ways a residential home or commercial property (‘real property’) can be forfeited to the Government.
The 1st way: Restraining Order leading to automatic forfeiture
Once a person has been charged with an offence which is classified as a ‘serious offence’ under the South Australian Criminal Assets Confiscation Act (‘the CAC Act’) the DPP may make an application for a restraining order over any real property used in the commission of the serious offence (or property that is the proceeds of crime). A restraining order must be personally served on you, so you will have notice of this should it occur.
The restraining order on the face of it merely prevents you dealing with the real property, such as by selling it or changing your interest it in. But there is a trap in the restraining order that you might not be aware of.
There is a very nasty trap in the restraining order that you must be aware of.
If a restraining order is served on you and you have then pleaded guilty to what is classified as a serious offence under the CAC Act and if you have not filed an application to exempt the property from the restraining order, then 6 months after you were convicted the property is forfeited – that’s it! There is no need for the DPP to go back to court – you get no warning or legal opportunity, it just happens automatically. Your home is forfeited to the Government.
So you can see that if you have been served with a restraining order, it is very important that you take action to have the property excluded from the restraining order.
If you have been served with a restraining order on your property you absolutely must see a lawyer
If you have been served with a restraining order on your property you absolutely must see a lawyer and make an application for the property to be exempt from the order. There are ways to get the property exempted from the order (and others who may be a part owner in the property, such as your partner, also have rights). It is beyond the scope of a short article like this to explain all these rights and opportunities in all their complexities.
As a former Magistrate I understand this restraining order process really well you. You should come to see me if you’re facing a restraining order.
As a former Magistrate I made such restraining orders. So, if you want to consult with a lawyer who knows this law really well then you really should come to see me before making a decision about whether to plead guilty to such an offence.
The 2nd way: General forfeiture order (‘GFO’)
The DPP can make an application for forfeiture of your home within 6 months of your conviction of a ‘serious offence’. There is no way to know in advance whether the DPP will make such an application except to say that they cannot make an application unless you have used your home in the commission of a ‘serious offence’.
You won’t get any warning that these applications are going to happen
You won’t get any warning that these applications are going to happen until it is almost too late. You will probably only learn about this type of application after you have pleaded guilty to, or been found guilty of, the serious offence. Clearly, the best way to avoid such an application is to make sure you do not plead guilty or are not found guilty of a ‘serious offence’.
The 3rd way: Pecuniary Penalty Order (‘PPO’)
If you are convicted of a ‘serious offence’ the DPP can apply to the court for an order that you are to pay an amount determined by the Court under s 99 of the CAC Act as a pecuniary penalty. That court order is a pecuniary penalty order.
The amount that the court fixes as a pecuniary penalty can be very significant – so significant that you would be unable to raise the funds to pay that amount other than by selling your house.
The amount of the penalty order is highly negotiable with the DPP and usually reflects the degree of use of the property when compared with the whole value of the property.
Growing cannabis at home – a typical (and risky) scenario
You are a 50/50 owner with your partner of a residential home that you live in. Instead of buying cannabis you decide to grow it at home. You decide to fit out a room in the shed to grow the cannabis hydroponically.
Assuming that, despite your objections, the police lawfully enter and search your home and find all of the above which they photograph and seize, you now find yourself charged with the following offences:
Let us assume that you have not yet been served with a restraining order**.
**(Remember if you have, then you need to file an application for exemption of the home from the restraining order, otherwise your home is likely to be forfeited automatically.)
Are you now at risk of forfeiture of your home?
In this situation there are basically two issues to resolve:
1st Issue: Can it be said that your home was used as ‘an instrument’ in connection with the commission of an offence which is classified as ‘serious offence’. under the CAC Act?
Your home is ‘used as an instrument in the commission’ of an offence where it facilitates, assists or in some material way contributes to the commission of an offence.
2nd Issue: Are you charged with an offence which is classified as ‘serious’ under the CAC Act?
In our scenario where you are charged with a number of offences it would be necessary to look at each of those offences to see whether any of them is classified as a ‘serious offence’ under the CAC Act.
Certainly, the charge of trafficking is a ‘serious offence’ under the CAC Act, so in this scenario you are now at risk of forfeiture of your home.
The allegation is that you intended to sell the cut 800 grams of cannabis. (Trafficking simply means selling cannabis or intending to do so.) The maximum penalty for trafficking in cannabis, being a basic offence, is $50,000 or imprisonment for 10 years, or both.
So, if you plead guilty to trafficking, or if you plead not guilty but are then found guilty, you are then at risk of the DPP making an application for the forfeiture of your home.
But I only grew it and cut it for my own use
I can hear you saying
‘But I only grew it and cut it for my own use. How am I charged with trafficking when I wasn’t going to sell any at all?’
The amount that you have cut from the growing cannabis was weighed by the police at the time of seizure at about 800 grams. Sure the cannabis was wet at the time. Unfortunately, based on the weight of the cannabis at the time of seizure, you had more than ‘the prescribed amount’ in your possession. So, you are deemed by law to have had it for the purposes of sale and intending to sell it.
The onus therefore then falls on you to prove, by giving or presenting evidence sufficient to satisfy the court, that you did not intend to sell it. The prosecution do not have to prove anything other than that the cannabis was more that the prescribed amount and that it was in your possession.
So, on the face of it you have used your residential home to facilitate the commission of a ‘serious offence’ under the CAC Act and so your home is now at risk of forfeiture.
If you want to avoid the complexities of defending an application to have your home forfeited or an application for a pecuniary penalty order, you should seriously consider pleading not guilty to trafficking and try to prove to the court what you say is true, that you only grew it and cut it for your own use.
4 Take Away Messages
As a former Magistrate who has dealt with these types of orders here are my take-away messages.