Assets Recovery Agency v Ralph Gregg
| Jurisdiction | Jamaica |
| Judge | V. Harris, J |
| Judgment Date | 28 February 2018 |
| Neutral Citation | [2018] JMSC Crim 1 |
| Date | 28 February 2018 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. HCC 125/15 |
[2018] JMSC Crim. 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
V. Harris, J
CLAIM NO. HCC 125/15
Miss Alethia Whyte for the Applicant
Mr. Ewan Thompson for the Defendant
Application for Pecuniary Penalty Order - The Proceeds of Crime Act — Sections 5, 6, 7, 8 and 11
This is an application by the Assets Recovery Agency (‘ARA’) for a pecuniary penalty order (‘PPO’) to be made against the defendant Mr. Ralph Gregg in accordance with section 5 of the Proceeds of Crime Act (‘ POCA’).
Mr. Gregg is a Jamaican national and a Canadian citizen. He has been residing in Canada since 1992. However, he maintains familial ties, as well as, real and personal properties in Jamaica. It appears from the evidence presented that he visits the Island from time to time, especially during, what he describes as, the “winter months” for short periods of time.
He was convicted in the then Resident Magistrate's Court for the parish of Westmoreland (now Westmoreland Parish Court) on the 23 rd of April 2013 for the offences of possession of and dealing in cocaine. Following his conviction the ARA was successful in its application for a committal order under section 52 of POCA. As a result, Mr. Gregg was committed to the Circuit Court for the parish of Westmoreland on the 2 nd of September 2013. On the 12 th of June 2014 my learned brother D. Fraser J who was presiding in that court transferred the matter to the Home Circuit Court in the parish of Kingston.
The matter came before me on the 28 th of June 2017 and was heard over two days (28 th and 30 th of June 2017). All written submissions from the parties were finally in on the 13 th of October 2017. Given the nature of the matter, I took time to consider.
The court is empowered by section 5 of POCA to grant a PPO. Section 5 of POCA provides in part:
“5. — (1) Subject to section (9), the Court shall upon the application of the Agency or the Director of Public Prosecutions, act in accordance with subsection (2) if the Court is satisfied that a defendant is –
(a) convicted of any offence in proceedings before the Court; or
(b) committed to the Court pursuant to section 52 (committal from Resident Magistrate's Court with a view to making forfeiture order or pecuniary penalty order).
(2) The Court shall
(a) determine whether or not the defendant has a criminal lifestyle and has benefitted from his general criminal conduct;
(b) if the Court determines that the defendant does not have a criminal lifestyle, determine whether or not the defendant has benefitted from his particular criminal conduct; and
(c) identify any property used in or in connection with the offence concerned and make an order that that property be forfeited to the Crown.
(3) Where pursuant to subsection (2) the Court determines that the defendant has benefitted from criminal conduct, the Court shall identify the property that represents the defendant's benefit from criminal conduct, and –
(a) make an order that the property be forfeited to the Crown; or
(b) order the defendant to pay to the Crown an amount (hereinafter referred to as the recoverable amount) equal to the value of his benefits, assessed in accordance with the provisions of this section and sections 6, 7, 8 and 11.”
“Recoverable amount” is defined in section 2 of POCA as the amount payable under a PPO. Simply put this is the value of the benefits that a defendant derives directly or indirectly from his/her general criminal conduct.
Section 5(7) of POCA instructs that the court in making the relevant determination under sections 5(2)(a) and 5(3) shall do so on a balance of probabilities.
Section 6(1) sets out the criteria that the court must utilise to determine the question whether a defendant has a criminal lifestyle. This provision states:
“6. – (1) A defendant shall be regarded as having a criminal lifestyle if the offence concerned –
(a) is specified in the Second Schedule;
(b) constitutes conduct forming part of a course of criminal activity, from which the defendant obtains a benefit; or
(c) is committed over a period of at least one month and the defendant has benefitted from the conduct which constitutes the offence.”
“Offence concerned” is the offence that the defendant has been convicted of.
Where it is found that a defendant has a criminal lifestyle, section 8 of POCA sets out a number of assumptions that the court is entitled to make to answer the question whether that defendant has benefitted from his general criminal conduct. The relevant provisions are:
“8. – (1) Subject to subsection (3) where the Court determines under section 5 that a defendant has a criminal lifestyle, the Court shall make the assumptions listed in subsection (2) for the purpose of –
(a) determining whether the defendant has benefitted from his general criminal conduct; and
(b) identifying his benefit from that conduct.
(2) The assumptions referred to in subsection (1) are that –
(a) any property transferred to the defendant at any time after the relevant day was obtained by him –
(i) as a result of his general criminal conduct; and
(ii) at the earliest time from which the defendant appears to have held it;
(b) any property held by the defendant at any time after the date of conviction was obtained by him—
(i) as a result of his general criminal conduct; and
(ii) at the earliest time from which the defendant appears to have held it;
(c) any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct; and
(d) for the purpose of valuing any property obtained, or assumed to have been obtained, by the defendant, he obtained the property free of any other interests in it.”
However, section 8(3) provides that the court shall not apply these assumptions where “the assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made.”
Where there has been no previous forfeiture order or PPO made against a defendant in relation to benefit from general conduct section 8(5) defines the “relevant day” as the first day of the period of ten years ending with the day when proceedings for the offence concerned were started against a defendant or if there are two or more offences and proceedings were started on different days, the earliest of those days.
However, section 2(10) of POCA places a restriction on how far back the relevant day can go. That section states:
“(10) Nothing in section 5 (making of order, 6 (criminal lifestyle), 7 (conduct and benefit), 8 (assumptions for determining benefit from general criminal conduct), 9 (effect of forfeiture order), 10 (voidable transfers), 20 (reconsiderations of case where no order is made), 21 (reconsideration of benefit where no order was made), 22 (reconsideration of benefit after order is made) or 30 (court's power on appeal) refers to conduct occurring, offences committed or property transferred or obtained, before the 30 th May, 2007.”
Section 7 makes provision for benefit that is obtained from criminal conduct:
“7. – (1) A person benefits from conduct if he obtains a benefit as a result of or in connection with the conduct.
(2) For the purpose of making a pecuniary penalty order, a person who obtains a non-pecuniary advantage as a result of or in connection with conduct shall be deemed to have obtained as a result of or in connection with conduct, a sum of money equal to the value of the non-pecuniary advantage.
(3) References to property or non-pecuniary advantage obtained in connection with conduct include references to property or a non-pecuniary advantage obtained both in that and some other connection.
(4) If a person benefits from conduct, his benefit is –
(a) for the purposes of making a forfeiture order, the property obtained as a result of or in connection with the conduct;
(b) for the purposes of making a pecuniary penalty order, the value of the benefit obtained as a result of or in connection with the conduct.”
Benefit, as defined by section 2, includes “any property, service or advantage.”
How the value of property should be determined is set out in section 11(3):
“11. – (1) The provisions of this section shall apply with respect to determining the value of property for the purposes of a pecuniary penalty order.
…
(3) Subject to subsection (4), for the purpose of deciding the value at any time of property then held by a person –
(a) the value of the property is the market value of the property at that time; or
(b) if at that time another party holds an interest in the property, the value of the property in relation to the person is the market value of the person's interest at that time, ignoring any lien or encumbrance on the property.”
The ARA has advanced that in keeping with section 6(1)(a) of POCA Mr. Gregg is to be regarded as having a criminal lifestyle because he was convicted of the offence of dealing in cocaine which is an offence that is specified in the Second Schedule.
It was also put forward that Mr. Gregg has benefitted from his general criminal conduct. The first benefit that the ARA has identified is the value of the cocaine that he was convicted for. The evidence as to the market value of the cocaine (pursuant to section 11(3)(a) of POCA) came from Detective Inspector St. Barnard Harrison, whom the ARA commended to the court, as being a seasoned and experienced narcotics police officer. Inspector Harrison gave evidence that the market value of a kilogram of...
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