Assets Recovery Agency v Ombretha Duffus

• Jurisdiction: Jamaica
• Judge: Shelly Williams J
• Judgment Date: 23 October 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. CACT2020CR00109
• Date: 23 October 2020

[2020] JMSC Crim 7

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CRIMINAL DIVISION

CLAIM NO. CACT2020CR00109

Between

Assets Recovery Agency

Applicant

and

Ombretha Duffus

1 ^st Defendant

and

Alando Howell

2 ^nd Defendant

Mrs Ann Monique Bailey Hutchinson for Assets Recovery Agency.

Ms Tamara Lovelace for the Defendants.

Proceeds of Crime-Application for Pecuniary penalty order — Proceeds of Crime Act Sections 2,5,6,7 and 8 — Standard of proof — Burden of proof

IN OPEN COURT

Shelly Williams J

Background

1 On the 1 ^st day of May 2018, the Assets Recovery Agency filed an Amended application for Forfeiture/ Pecuniary penalty order against the two named defendants. This application arose out of the conviction of the two defendants on the 5 ^th of February 2018. The first defendant Ms Ombretha Duffus pleaded guilty to the offences of:-

contrary to the Law Reform (Fraudulent Transactions) (Special Provisions) Act in the Clarendon Circuit Court.

• a) caused to be used an access devise to transfer money,

• b) using an access device to transfer money and

• c) knowingly possessing identity information

2 The second defendant Mr Alando Howell pleaded guilty to the offences of:-

contrary to the Law Reform (Fraudulent Transactions) (Special Provisions) Act.

• a. unauthorized access contrary to the Cybercrimes Act,

• b. using device to transfer money and

• c. obtaining money by means of False Pretences

3 The applicant filed an application on the 22 ^nd of March 2018 for a Forfeiture and/or a pecuniary penalty order. This application was amended on the 1 ^st of May 2018 where the applicant is now only seeking a pecuniary penalty order.

4 In support of their application the Asset Recovery Agency filed four statement of information, the first filed on the 30 ^th of November 2018, a supplemental filed on the 1 ^st of May 2019, a second supplemental filed on the 25 ^th of July 2019 and the third supplemental statement of information filed on the 23 ^rd of February 2020.

5 The first defendant filed her first response to the statement of information on the 21 ^st of March 2019. Attached to the first affidavit were a number of letters from:-

• a. Martin Myles.

• b. Rene Smith David.

• c. Ronald Evan.

• d. Simone Edwards

• e. Carmen Reid and

• f. Hasbourne Ferguson

6 The contents of these letters sought to show the reasons the remittances were sent. The reasons included the payment of taxes, housing taxes, loans, renovation for houses, birthday presents, unofficial saving scheme (partner), purchase of clothing and the maintenance of the first defendant's grandmother. Attached to the affidavit of the first defendant dated the 21 ^st of March 2019 were a number of receipts including payments to National Housing Trust (NHT) in the sum of $7,979.00, one Jamaica Public Service receipt in the sum of $1,000.00, the payment of school fees to one institution in the sum of $17,000, one property tax receipt covering on number of years in the sum of $15,000.00 and receipts for vendor's arcade in the sum of $26,500.00.

7 In further defence of this application, the first defendant filed a second affidavit on the 16 ^th of September 2019, the second defendant filed his response on the 29 ^th of January 2019, and three affidavits filed on behalf of the defendants. The additional affidavits were filed by: —

• a. Mr Martin Marshall Myles.

• b. Ms Claudine Brown.

• c. Ms Rene Smith David.

The Application

8 The application is for a pecuniary penalty order for the sum of: —

• a. $2,424,449.79 from the first defendant and

• b. $552,022.82 from the second defendant.

9 This sum for the first defendant is broken down into: —

• 1. $309,911.87 which is the value of the fraud.

• 2. $1,266,990.63 which is unexplained cash deposits.

• 3. $770,776.41 which is unexplained remittances

• 4. $76,761.88 which is unexplained cash payments to COK Sodality Co-operative Credit Union Ltd. (COK) in relation to a loan.

10 The sum for the second defendant is broken down into: —

• 1. $372,544.79 which is the value of the fraud.

• 2. $101,762.07 which is unexplained cash deposits.

• 3. $77,716.06 which is unexplained remittances received.

11 The two defendants have argued that these sums should not be the subject of a pecuniary penalty order.

12 Before the court can proceed to make the order requested, the applicant has to establish not only that they are in a position to make the application, but also that the defendants fall under the category of persons for which such an order can be made.

The Law

13 The application for pecuniary penalty is made under the Proceeds of Crime Act ( POCA). The starting point in relation this application is to ascertain whether or not the applicant falls under the category of persons who can make the application. Section 2 of POCA states that:-

– (1) In this Act – “Agency” means the Assets Recovery Agency referred to in section 3;

“authorized financial investigator” means—

• a) A member of the Constabulary Force so designated by the Commissioner of Police;

• b) An officer of the Agency; or

• c) Any other person so designated by the Minister;

14 The application was filed by the Assets Recovery Agency and as such the court is satisfied that they can properly pursue the current application.

15 The court would then be directed by Section 5 of POCA as to how to proceed with such applications. Section 5 (1) states that: —

• “5(1) Subject to subsection (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).”

16 The applicant would then have to establish whether the offences for which the defendants were charged fall under POCA. The defendants were charged with offences under the Law Reform (Fraudulent Transactions) (Special Provisions) Act, the Cybercrimes Act and the Larceny Act.

17 The Second Schedule of POCA lists a number of offences that would cause the defendants to be the subject of an order. In particular Sections 11 and 14 of the second schedule clearly places the defendants under the category of persons for which such an order can be made. Sections 11 and 14 speak to: —

• 11. An offence under Part II of the Cybercrimes Act.

• 14. An offence under the provisions of the Law Reform (Fraudulent Transactions) (Special Provisions) Act.

18 The court has to first determine if the defendants have a criminal lifestyle. Section 5 (2) of POCA states that: —

• “5(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) Identity any property used in or in connection with the offence concerned and make an order that that property be forfeited to the Crown.”

19 Criminal lifestyle is defined by POCA in Section 6 which states that:-

• “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 benefited from the conduct which constitutes the offence.”

20 Whilst criminal conduct is defined in Section 2 of POCA as: —

“criminal conduct” means conduct occurring on or after the 30 ^th May. 2007, being conduct which—

• a) Constitutes an offence in Jamaica;

• b) Occurs outside of Jamaica and would constitute such an offence of the conduct occurred in Jamaica;

21 In light of the conviction of the defendants in relation to the abovementioned offences under the Second Schedule of POCA they can be defined as having a criminal lifestyle.

22 Once the court is satisfied that the defendants had either engaged in criminal conduct or have criminal lifestyles then the court can then proceed to make certain assumptions in relation to them. These assumptions are detailed in the section 8 of POCA. Section 8 which states that: —

• (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 benefited 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.”

23 There are of course limits that have been placed on these assumptions as detailed in Section 8 (3) of POCA which states;

• (3) The Court shall not make an assumption under subsection (2) in relation to a...