By Aja Styles
A 65-year-old man from Perth’s working-class suburbs faces losing the modest home that is his only retirement asset under Western Australia’s extreme and outdated ‘proceeds of crime’ confiscation laws.
Kenneth Williams bought his house in the south-eastern suburbs 21 years ago and was paying it off legitimately, well before his crime of growing five cannabis plants in his shed. The mature plants were to make cannabis butter for what he says was medical reasons.
Kenneth Williams, pictured, and his Camillo home seized under criminal confiscation laws.
The state has not acted on a former chief justice’s 2019 recommendation to overhaul the archaic laws now out of step with the rest of the nation, something prominent lawyer Tom Percy recently labelled “one of the most disgraceful things that the McGowan government hasn’t done”.
WAtoday can reveal that according to the Auditor General, police and prosecutors have targets to seize large numbers of ‘proceeds of crime’ assets annually with potential bonuses for exceeding them. The Department of Justice, however, denies there are targets.
Mr Williams claimed the plants police found in 2016 were for butter to manage side effects from medication for Hepatitis C, and eight small cuttings were to pay back the grower who lent him the set-up.
“It was going to be something that I could just put in the fridge,” Mr Williams told WAtoday.
“I [wouldn’t] have to worry about chasing people to get marijuana off them.”
Mr Williams admitted to police that he had grown cannabis in his shed and given some away, which led him to pleading guilty to one count of cultivating a prohibited plant with intent to sell or supply in 2017.
An Armadale magistrate fined him $3500 and $169 in court costs.
Mr Williams says he was unaware of the potential consequences of admitting to an offence that fell under the Criminal Property Confiscation Act.
“Here I am making one bloody mistake, and I’m getting crucified for that,” Mr Williams said.
“I’m just easy prey.”
His house has been held under a freeze order for the past six years as he tried to fight for it in the Supreme Court.
According to Department of Public Prosecutions guidelines it decides whether to proceed with or settle such disputes based on the likely profits and prospects of success.
The state stands to gain $250,000 from Mr Williams’ house, since he only owes about $70,000 on the mortgage.
It proceeded despite numerous medical letters attesting to his incurable condition.
Legal medicinal cannabis sales from WA company Little Green Pharma began in late 2018.
In a sworn statement to the Supreme Court in the same year, in a bid to keep his house, Mr Williams said he underwent intensive treatment for Hepatitis C and liver disease from 2012 to 2014 with an antiviral drug with severe side effects (now superseded by better treatments).
“I was nauseous all the time, lost weight and my hair thinned out,” he told the court.
He also had depression and anxiety, at times contemplating taking his own life.
Then friends introduced him to cannabis butter.
“The benefits were immediate: I was able to relax, communicate better, my nausea subsided, and I felt less aggressive and depressed,” he told the court.
He said his doctor advised him to continue with the cookies as his physical and mental health improved.
He was able to return to work intermittently.
But after an attempt to stop using cannabis left him “all mangled up again,” he borrowed his source’s grower’s hydroponic set-up in October 2015 and grew five 1-metre plants in his shed.
Police swooped in January 2016 after a Crime Stoppers tip-off.
In a letter to Mr William’s lawyer Anna Trewarn, the prosecutor said property confiscation was appropriate.
“Your client made admissions to police at the time of the search that he had four crops to date and that he was supplying one person and receiving $5000 per supply, [and] admitted that he had begun cultivating cannabis because of financial pressures,” the letter said.
“The [DPP] does not accept that this was not a serious offence for which confiscation was not appropriate.
“Your client’s medical condition appears to have been under control for some time now.”
But Mr Williams told the court in 2018 this was his first and only attempt at growing cannabis.
He had not intended to sell it but would have given some away to friends.
He said he was offered $5000 but refused as he needed the majority for himself.
Ms Trewarn argued that Mr Williams was reaching retirement age and the confiscation of a house not bought with illegal proceeds, for offending limited in duration and personal gain, far exceeded the bounds of “general deterrence principles”.
But the law’s mandatory parameters meant the court had little choice but to deem the house “crime-used” and seize it last November.
The state then sent him a $10,000 bill for court costs.
The ruling has left Mr Williams broke.
His income of $600 a week is just above the poverty line of $457 per week set by the Australian Council of Social Services.
He has only $30,000 in superannuation after working intermittently for the past decade due to his frail health.
“My house was my super – that was what I planned for, but really I’ve got nothing,” he said.
Mr Williams has another 12 months in the house, after which he can try to appeal the decision to seize it.
The year Mr Williams was raided, WA Police had a target to confiscate $12 million worth of ‘proceeds of crime’ assets and the Department of Public Prosecutions a target of $9 million, according to the 2018 Auditor-General’s report.
The report into criminal confiscation said the department and police could get bonuses for beating these targets.
Funding agreements with the Department of Justice meant the DPP received $4.2 million of the $9.2 million successfully confiscated that year, while police got $1.75 million.
A justice department spokesman said the primary purpose of the confiscation process was to disrupt crime.
He said the office of the Director of Public Prosecutions made orders to confiscate assets under the Act.
Under Department of Justice funding arrangements, top-up payments could be made to the DPP or to police to pursue that objective.
These payments were subject to the same conditions and acquittal requirements as annual funding.
He said there were several years recorded where the funding level was not met by either agency.
Former chief justice Wayne Martin’s review of the decades-old Criminal Property Confiscation Act been acted upon after its completion in 2019 criticised the law and recommended a complete overhaul due to the lack of provision for a court’s discretion over freezing or confiscation orders on the basis of hardship, unfairness or injustice.
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