The Payroll Tax Scam of Plutus Payrol CEO Simon Anquetil: $16m in assets seized, crime doesn't pay, you do the time and lose the proceeds
The plaintiff seeks a declaration of forfeiture in respect of property covered by restraining orders made under s 18 of the the Proceeds of Crime Act 2002 (Cth) 'POC' Act against the third defendant, Mr Simon Anquetil. Ms Han effectively claims that $150,000 should be excluded from forfeiture. The Court, in adjudicating whether or not the requirements of s 95 the POC were satisfied, took into consideration whether a person is taken to have been convicted of an offence.
Facts:
The plaintiff, the Commissioner of the Australian Federal Police, through notice motion, seeks a declaration of forfeiture under s 95 of the Proceeds of Crime Act 2002 (Cth) (POC Act) in respect of property covered by restraining orders made under s 18 of the POC Act against the third defendant, Mr Simon Anquetil. The notice of motion relates to 155 items of property. A restraining order was made against Mr Anquetil in respect of property suspected of being relevantly associated with him. Where the owner was a corporation, in some cases it is noted that the corporation has subsequently been deregistered.
Each of the affected persons was provided with a copy of the notice of motion. On 6 May 2021, the directions hearing in relation to the motion took place as part of the general directions hearings in relation to all extant applications in these proceedings. Many of the affected parties do not seek to contest the forfeiture of the items of property which are referred to in that form of orders and which are also the subject of the present application.
Ms Han effectively claims that $150,000 should be excluded from forfeiture. She alleged that the $150,000 listed in the trust account ledger was not property of, or under the effective control of, Mr Anquetil. By her amended notice of motion, she had made applications under ss 29 and 73 of the POC Act that this property be excluded from any further restraining order or forfeiture order as sought by the Commissioner in his notice of motion filed on 10 April 2019.
Issue:
Whether or not the requirements of s 95 the Proceeds of Crime Act 2002 (Cth) are satisfied.
Applicable law:
Crimes Act 1914 (Cth) s 4G - provides that offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
Mutual Assistance in Criminal Matters Act 1987 (Cth) - defines "australian forfeiture order” as a forfeiture order within the meaning of a proceeds of crime law; or a declaration made under section 95 of the Proceeds of Crime Act; or a declaration made under subsection 30(8A) of the Proceeds of Crime Act 1987 ; or an interstate forfeiture order within the meaning of the Proceeds of Crime Act; or an order or declaration, made under Australian law, that orders the forfeiture of property in respect of an offence against Australian law or declares that property has been forfeited in respect of an offence against Australian law; and is, in accordance with the regulations, to be taken to be an Australian forfeiture order for the purposes of this Act.
Proceeds of Crime Act 2002 (Cth) s 92A - requires the responsible authority, before property is forfeited, to give notice of the forfeiture to any person who has or may have an interest in the property.
Proceeds of Crime Act 2002 (Cth) s 95 - provides that a Court may make a declaration that property has been forfeited under Pt 2-3, which includes ss 92 to 114, of the POC Act.
The Commissioner of the Australian Federal Police v Cranston and Ors (No 1) [2017] NSWSC 624 - where restraining orders in respect of the subject property were made by Fullerton J.
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 - where it was held that on the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.
Burgess v Boetefeur (1844) 7 Man and G 481 [1844] EngR 567 - where it was observed that 'the word “conviction” is undoubtedly verbum aequivocum. It is sometimes used to mean the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.’
R v Tonks [1963] VicRp 19- the Victorian Full Court said that a plea of guilty does not if its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged.
Analysis:
At the time the orders were made, the Court was satisfied, for the purposes of s 18(2) of the POC Act, that there were reasonable grounds to suspect that the items of property were one or more of the following:
(1) specified or unspecified property of Mr Anquetil;
(2) specified property of another person that was subject to the effective control of Mr Anquetil; or
(3) specified property of another person that was proceeds of the offence which Mr Anquetil was suspected of having committed or an instrument of the offence.
None of Ms Han's applications have been heard or determined. If Ms Han’s outstanding applications have been overtaken by events, she might nonetheless seek to have the $150,000 transferred to her under s 102 of the POC Act by making an application under s 104. A person is relevantly taken to have been convicted of an offence if “the person is convicted, whether summarily or on indictment, of the offence”. Mr Anquetil was convicted of the offences referred to above, within the meaning of the POC Act, when sentence was passed on 31 July 2020.
The offences of which Mr Anquetil was convicted under s 135.4(3) and s 400.3(1) of the Criminal Code carry maximum penalties of 10 years and 25 years respectively and were offences against the law of the Commonwealth that may be dealt with as indictable offences by virtue of s 4G of the Crimes Act 1914 (Cth). Thus, they were “serious offences” within the meaning of the POC Act.All of the applicable requirements in s 92(1) of the POC Act have been satisfied in this case so that, by operation of that section, the Remaining Property was forfeited to the Commonwealth at the end of 30 January 2021.
Conclusion:
The Court is of the view that all the relevant requirements under s 95(a) and (b) have been satisfied in respect of the Remaining Property.The Court declares that each item of property set out in the schedule to these orders was forfeited to the Commonwealth at the end of 30 July 2021, by operation of s 92(1) of the Proceeds of Crime Act. These orders are to be entered forthwith.
