DPP v STUDMAN

• 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 12262/04

HULME J Thursday, 18 August 2005 DIRECTOR OF PUBLIC PROSECUTIONS v Michael Simon STUDMAN JUDGMENT 1 HULME J: By Summons dated 20 July 2004, the Commonwealth Director of Public Prosecutions (hereinafter referred to as "the DPP") commenced proceedings under the Proceeds of Crime Act 2002 (C'th) against Mr Studman. On 20 July, 2004 Kirby J made an order pursuant to Section 18 of the Act restraining the disposition of property of Mr Studman and other property described as:- 1. Funds standing to the credit of the Australia and New Zealand Banking Group Ltd cash management account number 012-0031088-89972 in the name of Michael Simpson; 2. Commonwealth Bank of Australia shares held in the name of Michael Simpson; 3. Burns Philp shares held in the name of Michael Simpson; and 4. Highland Pacific shares held in the name of Michael Simpson. 2 In February of this year Mr Studman pleaded guilty to a number of offences of stealing from the Commonwealth and otherwise of fraud. The amount involved is in excess of $300,000. In an affidavit of a Paul Fox read in the proceedings before me, the value of the benefit derived by Mr Studman by way of receiving property of the Commonwealth was said to be, as at 31 March 2005, approximately $360,500. Sentencing proceedings against Mr Studman have commenced but not concluded. They presently stand adjourned until 19 August 2005. 3 By Notice of Motion dated 8 April 2005 Mr Studman has applied to the Court for orders, inter alia:- "1. Pursuant to Section 31 of the Proceeds of Crime Act 2002 ("the Act"), the balance of the property detailed and restrained in accordance with Part One of the Schedule of the Orders of this Court dated 20 July 2004 ("the Orders") be transferred to the Defendant. 2. In the alternative, pursuant to Section 94 of the Act the balance of the property detailed and restrained in accordance with Part One of the Schedule of the Orders be transferred to the Defendant. 3. Pursuant to Section 39 of the Act, the Plaintiff and/or the Official Trustee take all necessary steps to facilitate transfer of the balance of the restrained property to the Defendant forthwith." 4 It is that Notice of Motion which is the inspiration for these reasons. Consideration of it requires detailed reference to some of the provisions of the Proceeds of Crime Act but before turning to its terms, it is convenient to provide a brief, and not necessarily comprehensive, summary of some of its major provisions. Sections 17 to 20 require courts to make orders restraining the disposition of property if application is made by the DPP in circumstances where a person has been convicted or charged with an indictable offence or if it is proposed that he be charged or even if the person is suspected on reasonable grounds of committing a serious offence. The property in respect of which such orders must be made is any property of or under the control of the alleged offender or property that is "proceeds of the offence or an instrument of the offence". 5 Sections 29 to 31 empower the court to which application for a restraining order is made to, in certain circumstances, exclude specified property from the restraining order and if the court is satisfied that certain reasons exist. The permissible reasons are listed in s29(2) although there is a further qualification in s29(4). These sub-sections provide:- (2) The reasons for excluding specified property from a restraining order are: (a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a serious offence - the property is neither proceeds nor an instrument of unlawful activity; or (b) … (c) for a restraining order under section 18 - the property is neither (i) in any case - proceeds of unlawful activity; nor (ii) if an offence to which the order relates is a terrorism offence - an instrument of any terrorism offence; or

(d) … (4) However, the court must not exclude property form a restraining order under section 17 or 18 unless it is also satisfied that neither a pecuniary penalty order nor a literary proceeds order could be made against: (a) the person who owns the property; or (b) if the property is not owned by the suspect but is under his or her effective control - the suspect. 6 Section 39 of the Proceeds of Crime Act deals with ancillary orders and any consideration of it that may be necessary can be deferred. 7 Section 92 provides that if, at the end of 6 months, or if an extension is granted the period so extended, after a person is convicted of a serious offence property is still covered by a restraining order, the property is forfeited to the Commonwealth. Section 94 permits a court that has made a restraining order to exclude particular property from forfeiture under s92, if:- "(a) the person referred to in paragraph 92(1)(a) applies for an order under this section; and (b) the property is covered by the restraining order; and (c) the person owns the property; and (d) the person has been convicted of a serious offence to which the restraining order relates; and (e) the court is satisfied that the property is neither proceeds of unlawful activity nor an instrument of unlawful activity; and (f) the court is satisfied that the defendant's interest in the property was lawfully acquired." 8 The Act also contains extensive and extended definitions of many of the terms used. Particularly relevant to the matter before me are the following:- "329(1) Property is proceeds of an offence if: (a) it is wholly derived or realised, whether directly or indirectly, from the commission of the offence; or (b) it is partly derived or realised, whether directly or indirectly, from the commission of the offence; whether the property is situated within or outside Australia. (2) Property is an instrument of an offence if: (a) the property is used in, or in connection with, the commission of an offence; or (b) the property is intended to be used in, or in connection with, the commission of an offence; (c) whether the property is situated within or outside Australia. (3) Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence. (4) Proceeds or an instrument of an unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity." "338 In this Act, unless the contrary intention appears: .… interest in relation to property or a thing, means: (a) a legal or equitable state or interest in the property or thing; or (b) a right, power or privilege in connection with the property or thing; whether present or future and whether vested or contingent. property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property. unlawful activity means an act or omission that constitutes: (a) an offence against a law of the Commonwealth; or (b) an offence against a law of a State or Territory that may be dealt with on indictment (even if it may also be dealt with as a summary offence in some circumstances); or (c) an offence against a law of a foreign country." 9 I turn to the evidence upon the basis of which the application before me proceeded. Much of that evidence did not relate to the offences with which Mr Studman stands charged, counsel for the DPP contending that the unlawful activity upon which he was entitled to rely in opposing Mr Studman's application was not restricted to that the subject of the charges but included breaches of section 24 of the Financial Transaction Reports Act and of s8U of the Taxation Administration Act, 1953. Conceptually, the submission is correct - see Director of Public Prosecutions (Cth) v Jeffery (1992) 58 A Crim R 310 and on appeal Jeffrey v DPP (Cth) (1995) 79 A Crim R 514 - but whether there were breaches of these statutes and, if so, what their significance is to the property the subject of the Application are matters to which I will return. 10 Account 012-0031088-89972 was in the name of Michael Simpson. (Hereafter I will refer to it, and in the case of other accounts, on the second and subsequent occasions simply by use of the last 5 digits.) It was opened on 3 June 2003 with a deposit of $148,305.08 and it was closed on 27 July 2004 at which stage the balance in the account was $121,308.28. The only other amounts credited to the account seem to have been monthly amounts of interest and the only amounts debited, $13,000 withdrawn on 10 May 2004 and $20,000 withdrawn on 2 July 2004. 11 The $148,305.08 was transferred from account No. 9870-27825 which was also in the name of Michael Simpson. The sum was largely the product of the following transactions on that account.

Credits 3 March 2000 $46,800.00 6 September 2000 $3,270.00 5 November 2001 $71,000.00 5 November 2001 $438.00 6 March 2002 $9,000.00 6 June 2002 $5,000.00 5 December 2002 $14,000.00

Debits 6 June 2002 $15,000.00 12 In addition, between 4 September 2000 and June 2003 irregular interest payments totalling something of the order of $10,000 were credited to the account. These interest payments were commonly, although not universally, quarterly and the account seems to have been one which represented fixed term deposits. There were interest payments credited in each of the financial years ending 30 June 2001, 2002 and 2003. 13 At the time, Mr Studman has been in a domestic relationship with a Miss O'Malley and to a large extent the above sums were provided by her. Thus, of the amounts indicated:- $46,800.00 $43,720.06 came from a term deposit Miss O'Malley had with the National Australia Bank. $3,080 came from an account No: 20-923-1002 which Miss O'Malley had with that Bank. $3,270.00 withdrawn from Miss O'Malley's account No: 20-923-1002 $71,000.00 $59,438 came from an Endeavour Credit Union Account in the name of Michael Studman. and $12,000 came from Miss O'Malley's account No: 20-923-1002 $438.00 $9,000.00 withdrawn from Miss O' Malley's account No: 20-923-1002 $5,000.00 withdrawn from Miss O'Malley's account No: 20-923-1002 $14,000.00 withdrawn from Miss O'Malley's account No: 20-923-1002

14 The sums in the above table emanating from Miss O'Malley total $90,070. Miss O'Malley asserts and I accept that the funds in account No: 20-923-1002 were almost exclusively the product of her salary. I also accept that the reason Miss O'Malley provided to Mr Studman the funds she did was because Mr Studman persuaded her that he would be able to procure a better return than she could obtain or had been receiving. 15 On 11 March 2005 and with the consent of the DPP and Miss O'Malley this Court ordered, inter alia:- "Pursuant to Section 39 of the Proceeds of Crime Act 2002 ("the Act"), that the Restraining Order be varied to allow payment to Maureen Carroll O'Malley ("the Applicant") or her legal representative of a sum of $90,070.66 in full satisfaction of the Applicant's Notice of Motion…" 16 The Short Minutes of Order of that day noted that in consideration of the orders being made Miss O'Malley:- "(a) Releases the Commonwealth, the Plaintiff and the Official Trustee from any claim for loss or damages in consequence of the making of the restraining order or of any other aspect of the conduct of these proceedings; (b) Undertakes not to make any further claim, whether pursuant to the Proceeds of Crime Act 2002; or (c) Otherwise, against the Commonwealth, the Plaintiff or the Official Trustee in relation to the restrained property." 17 There was evidence that Miss O'Malley also provided further moneys to Mr Studman to invest. These included the following:- 10 July 2000 $5,680 10 January 2001 $10,300 4 October 2001 $12,000 2 October 2003 $23,000 18 It is clear that this indebtedness to Miss O'Malley over and above the $90,070 provides part of the motive or argument of Mr Studman in support of the present Application. However, it is also clear that the Application is to be determined by reference to the terms of the statutes to which I refer in these reasons and mere indebtedness of Mr Studman to Miss O'Malley, whether caused by fraud or gambling or simple borrowing is not among the matters to which the statutes direct attention. Furthermore, although I doubt whether it matters, the evidence does not permit one to conclude that any of these further sums found their way into the property the subject of the restraining order. Indeed, the evidence tends to indicate that they did not. So far as the bank accounts to which I have referred above are concerned, the records in evidence of the Endeavour Credit Union Account show that the $59,438 paid by Mr Studman on 5 November 2001 were largely the product of a deposit of $57,461.85 paid to him by his then employer on 10 July 2001 - prior to which deposit the account was in debit - and there is no deposit to that account between 4 October and 5 November which could incorporate the sum of $12,000. The timing of the 4 payments referred to and of the purchase of the shares referred to below is also such that there is no apparent connection between them. 19 In these circumstances, it does not seem to me necessary to attempt to canvass the history of these four or any other payments by Miss O'Malley. 20 Mr Studman conceded that the interest earned on the bank accounts and the dividends on the shares in the name of Michael Simpson had not as yet been declared in any of the tax returns he had filed in the name of Michael Studman for the years 2002, 2003 and 2004. Tax returns were also filed in the name of Michael Simpson for, inter alia the year ending 30 June 2001. The return for that year did show a sum of $6,232 for interest as the total income of that taxpayer. There were some deductions and the Notice of Assessment showed as the taxable income a sum of $6126, the tax payable thereon as some $21.42 and rebates or other credits for a similar amount. Mr Studman said that no tax was paid on that income. 21 For the years ended 30 June 2002 and 2003 he filed documents with the Taxation authorities in the name of Michael Simpson indicating less than the threshold for filing a return. He acknowledged that a letter from the ANZ Bank showed that Michael Simpson in the year ended 30 June 2003 earned $5,903 by way of interest. 22 Mr Studman said that he had never told Miss O'Malley of the amount of interest that was being obtained for her, also saying that she received no interest to declare. 23 Mr Studman gave evidence as to why he had used the name Michael Simpson. In an interview with Federal Agents on 29 July 2004, the following is recorded at Questions and Answers 627 and 661:- "Q…(indistinct)… Why did you submit tax returns in the name of Michael A SIMPSON? A Ah, just to keep that entity going as long as possible. To, um, just - because, ah, well, it was a tax benefit of - he was getting the interest from the ANZ apportioned to, to him. There was …(indistinct)… no other income …(indistinct)… the last ten years. …(indistinct)… Wilson Parking or BP. Q You mentioned that you banked money into the bank, bank account in the false name of SIMPSON for a tax advantage. What do you mean by that? A Yeah, well, we went - 'cause we were saving, ah, quite a bit and when we got up to, um, oh, a hundred thousand or so - I mean even at the poor rates they were giving on term deposits, um, ah, I would've had to declare or Maureen would've had to declare that on her tax returns and at the marginal rate, even on, even on three thousand dollars interest, you'd be paying fourteen hundred bucks a year in interest or something. So, by having it in SIMPSON's account the threshold is, um, five thousand or so and, um, I don't think we ever made that much interest in one year. Um, so it was just a tax free investment. Um, that's purely the reason. Maureen trusted it being there. There was - we had access and, ah, we could get it out and it was a tax, a tax benefit." 24 Taken during the course of the hearing before me to the topic of his motivation, Mr Studman said that there were many reasons why money was banked in the name of Simpson. His primary purpose was to obtain money with which to gamble, but he also said that it was to "defer the Commonwealth". He said that when he filed his 2003 return he deliberately did not include the interest obtained on the account of Michael Simpson "because by that stage the account was being dwindled down quite rapidly with gambling". 25 In response to implied criticism in respect of these matters Mr Studman on a number of occasions referred to the possibility of filing amended returns and what he asserted were entitlements to deductions in respect of his gambling. 26 It is common ground that the shares the subject of the restraining order were acquired through T D Waterhouse, stockbrokers. Some records from that organisation became Exhibit 6. They are not entirely clear but seem to show that on an account in the name of Michael Simpson, $15,000 was received on 9 July 2002, and that on 10 and 19 July respectively $1,000 and $12,000 were the subject of "external transfer" to Michael Simpson. Thus both of the first 2 pages of Exhibit 6 show a cash balance of $2,015.33, there having been a small amount of interest credited. Records produced by Commsec which took over T D Waterhouse in July 2003 show the purchase of shares as follows:- ASX Code Number Price Date of Order HIG 2000 0.31 7/10/2002 CBA 145 27.68 7/11/2002 BPC 10,000 0.62 22/4/03 27 The total of those amounts and numbers is some $10,833 although presumably there would have been some amount by way of brokerage added. 28 In paragraph 11 of his affidavit of 4 March 2005 and in an annexure to his affidavit of 8 April 2005 Mr Studman maintained that the shares were purchased with $15,000 withdrawn from account 27825 on 6 June 2002. However, it seems to me that the records to which I have referred are likely to be more accurate that Mt Studman's recollection. Furthermore, it strikes me as inherently unlikely that money would have been provided to stockbrokers in July 2002 for shares purchased in and after November 2002. Of course, money could have been provided in the first instance to be put on deposit and only later share purchases ordered. However, given the extent to which Mr Studman was himself placing funds with banks or other financial institutions prior to July 2002, it does not seem to me likely that the funds placed with T D Waterhouse at that time were simply for placing on deposit. 29 Mr Studman also said that he had not informed the ANZ Bank or T D Waterhouse or Commsec or the Adelaide Bank (into which some of the moneys given to T D Waterhouse may have been deposited) that, apart from the name Michael Simpson, he was also known as Michael Studman 30 I return to a consideration of the relevant legislation. So far as is presently relevant, s24 of the Financial Transaction Reports Act provides:- (1) A person shall not open an account with a cash dealer in a false name. (2) A person shall not operate an account with a cash dealer in a false name. 31 There follow other sub-sections prohibiting the use of more than one name to open or operate an account with a cash dealer without disclosing the other name or names. A "cash dealer" includes a bank and a securities dealer. It is thus clear that Mr Studman in both opening and operating account 89972 was in breach of the Financial Transaction Reports Act and engaged in unlawful activity. In that situation, was the account "property (which) is neither proceeds of unlawful activity nor an instrument of unlawful activity" within s94 of the Proceeds of Crime Act", particularly bearing mind the terms of s329 of the Act which I have set out above? 32 In order to answer this question, it is appropriate to reflect for a moment on the nature of a bank account. It is, of course, not a tangible item of property. Rather is it is a term used to denote the bundle of contractual rights and obligations or choses in action which exist between a bank and one of its customers. Those rights and obligations are liable to change, or at least vary in value, as moneys are paid to, or withdrawn from, the bank.

33 So far as the establishment of the ANZ Bank account is concerned, Mr Studman's use of the pseudonym Michael Simpson was an incident of the formation of the contract encompassed by the terms "bank account". Given that the Bank had no knowledge that its customer had any other name, it may be inferred that among the terms of the contract was one which required the account to be identified by that name.

34 It seems to me that in the circumstances I have to consider, the name "Michael Simpson" was a false name within the meaning of that expression in the Financial Transactions Act. Thus at the time of opening the accounts with which I am concerned, he engaged in unlawful activity. Probably - see DPP v Jeffery to which I have referred above - it is appropriate to regard the bundle of rights and obligations encompassed by the term "bank account" as derived, wholly or partly from this activity but there can be no doubt that the account or the bundle of rights and obligations encompassed by the term "bank account" was "used in, or in connection with, the commission of an offence", viz. operating the account in a false name.

35 In this regard, I should perhaps record that Mr Muir, counsel for the DPP, drew my attention to Taylor v Attorney-General (SA) (1991) 53 A Crim R 166, and Rodney John King (2000) 114 A Crim R 14, wherein it was pointed out that the words "used … in connection with" particularly when used in the alternative to "used in" were words of wide import. However, I have not found it necessary to rely on these decisions. The conclusion at which I have arrived seems to me to flow clearly and simply from the words themselves. 36 It follows also from the decision in DPP v Jeffery that ownership of the shares in the name of Michael Simpson was equally derived from the illegality of using a false name. 37 Even if Michael Simpson should not be regarded as a false name, Mr Studman's omission to tell the bank and T D Waterhouse of both his names were breaches of the Financial Transactions Reports Act. However, it is not so easy to regard the bank account or the ownership of the shares as derived from that omission but this is a matter which I do not need to decide. 38 The conclusions at which I have arrived makes it unnecessary for me to pursue any of the other matters which must be considered before a Court can make an order under s94. However I think I should briefly refer to some. It was conceded on behalf of the DPP that Mr Studman fulfilled the requirements of paragraphs (a) and (d) of s94(1) and reference was made to the decision in DPP v Helou [2003] NSWCA 301. Certainly I am persuaded that Mr Studman has been convicted of a serious offence. 39 There was no discussion of the requirement in s94(1)(d) "to which the restraining order relates". The expression is somewhat vague and, except that the offences with which Mr Studman has been charged seem to have been the inspiration for the restraining order, there does not seem to me to be any connection between the bank account, the subject of the restraining order and those offences. Because I am not satisfied as to the source of the funds for the purchase of the shares, I am not able to make a similar finding so far as they are concerned, but it may be that the same can be said as to them. However, it is also clear that the Act envisages that restraining orders will be made in circumstances where an authorised officer suspects a person to have committed an offence, the Court is satisfied that suspicion is held on reasonable grounds, the DPP has applied for an order and the person has been convicted of, or charged with or it is proposed that he or she be charged with an indictable offence and that in many situations there is no requirement that the property the subject of restraint have anything to do with the offence committed. 40 Thus it seems to me that the relationship of which paragraph (d) speaks may be no more tangible than that the serious offences referred to are those specified or identified when the restraining order is obtained. It seemed to be common ground that that was the situation in this case. 41 Having regard to the phraseology of the second prayer for relief the requirements of subsection 1(b) are also satisfied. 42 Section 94(1)(c) requires that the Applicant "owns the property" sought to be excluded from the restraining order. At times the Applicant seemed to assert that it was owned by Miss O'Malley although I think that this approach was more based on a perception that because he had defrauded her, what he had left should be hers and that if it was, his chances of having the property excluded were raised. The facts being before me, I am not disposed to place any weight on any such admissions or assertions by the Applicant. 43 However the circumstances as apparent in the evidence do raise a question whether at least the funds represented by the bank account were entirely owned by the Applicant. The same question does not arise in the case of the shares because of the uncertainty concerning identification of the funds with which they were acquired. 44 It is at least arguable that the funds provided by Miss O'Malley and which found their way into bank account 89972 were not simply lent to the Applicant but provided to him for a purpose, viz. investment on her behalf and in circumstances where she either had an equitable interest in them or at least some equity to have them restored to her. However, insofar as that was the situation, implementation of the orders of 11 March last - which I assume has occurred - would have restored to her at least the principal amount to which she was entitled and her agreement would seem to be a bar to any other claim to the funds which were represented in that account. Thus I would conclude that as at this time the property the subject of the restraining order is owned by the Plaintiff. 45 No significant attention was given in the proceedings before me to the terms of s94(1)(f). Although at least the vast bulk and possibly the whole - I do not find it necessary to decide - of the moneys which went into bank account 89972 and which did not come from Miss O'Malley would seem to have been lawfully acquired by the Applicant, it is the bank account - the rights and obligations encompassed by that term - which is the subject of the restraining order. Because of the unlawfulness in opening that account in a false name, the Applicant's rights in that connection were not lawfully acquired and thus the Applicant fails to meet the requirements of paragraph (f) also. Similar considerations apply in the case of the shares. 46 As I have said, it was also submitted on behalf of the DPP that bank account 89972 was also "proceeds of unlawful activity" and "an instrument of unlawful activity" because of breaches of s8U of the Taxation Administration Act, 1953. So far as is presently relevant that section provides:- A person who: (a) engages in conduct that results in the falsification or concealing of the identity of, or the address or location of a place of residence or business or, the person or another person; or (b) … with any of the following intentions, namely: (c) deceiving or misleading the Commissioner or a particular taxation officer.

(f) hindering, obstructing or defeating the administration, execution or enforcement of a taxation law; or (g) defeating the purposes of a taxation law; (whether or not the person had any other intention) is guilty of an offence. 47 I am satisfied that in placing the funds he did in the name of Michael Simpson, and in either not including the interest earned on those funds in his own tax return or informing Miss O'Malley of the interest earned, Mr Studman breached the terms of this section. It is, of course, a separate question whether the funds the subject of the restraining order are in whole or in part the product of this illegality but in light of the other conclusion at which I have arrived, this is not an issue I need decide. 48 Out of deference to one of Mr Studman's submissions, I would add that although the Commissioner of Taxation might be satisfied with the submission of an amended return, that would not have the effect to abrogating, ab initio, the offences previously committed so far as the taxation legislation is concerned. 49 I turn then to the application under s31 of the Proceeds of Crime Act. The first question is whether I can be satisfied that the property the subject of the restraining order was not "proceeds of unlawful activity". For reasons indicated above I cannot be so satisfied. The Defendant's rights in relation to the bank account were the proceeds of his unlawful activity in opening it in a false name. Similar considerations apply, and a similar result follows in the case of the shares. 50 Also in issue was whether I could be satisfied that a pecuniary penalty order could not be made against Mr Studman. (The facts are such that no consideration need be given to the possibility of a literary proceeds order.) 51 Section 116 of the Proceeds of Crime Act provides that an appropriate court must (my emphasis) make such an order if the DPP applies for one and the court is satisfied of either or both of the following:- (i) The person has been convicted of an indictable offence, and has derived benefits from the commission of the offence; (ii) Subject to subsection (2), the person has committed a serious offence. 52 As the requirements of sub-section (i) are met, for present purposes, I can ignore sub-paragraph (ii). 53 It was common ground that the DPP had, on 12 July last, made application for a pecuniary penalty order, which application has not as yet been heard. Section 121 et seq. dictate how the amount is to be calculated. It is unnecessary that I set out verbatim the relevant statutory provisions. It is sufficient to say that the commencing point for a calculation under that section is "the value of the benefits the person derived from the commission of the offence". Provision is made for subtracting from that value amounts determined in accordance with Sections 130-132 of the Act. "Benefit" is defined in Section 338 to include a "service or advantage" although I do not regard this as taking the matter any further. 54 Mr Studman contended that in fact he had derived no benefit from his offending because all of the moneys he received in consequence, together with substantial other moneys of his own, had been expended in feeding a gambling addiction to which he clearly seems to have been subject and which inspired his offending. 55 It is, I am satisfied, clear that the benefits of which the Act speaks are to be assessed by reference to what proceeds were received and by disregarding the expenditure of them. On the completion of each offence Mr Studman had received the proceeds of it. At that time he had the benefit of the use of the funds involved and the fact that subsequently he used them as he did is no more to be taken account of than if he had spent them on alcohol, heroin or any other addiction. While I accept that addictions are commonly regarded as compulsive, in fact addicts generally and perhaps invariably spend some of the money they acquire on matters other than their addiction, e.g. food. The fact that from time to time there were significant sums of money in accounts to which Mr Studman had access demonstrates that he did exercise a degree of choice in what he did with money coming into his hands or under his control. 56 Most of the provisions of the Act providing for deduction from the value of benefits derived are of no present relevance. However, s132 provides:- "The court may, if it considers it appropriate to do so, reduce the penalty amount under a pecuniary penalty order against a person by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to an offence to which the order relates." 57 Mr Studman argued that a loss of entitlement to superannuation and the like benefits which flowed from his offending and consequent cessation of employment with the Commonwealth should be taken into account in reduction of any amount otherwise payable as the Commonwealth would benefit from this loss. Mr Studman asserted that this loss exceeded $526,266, an amount well in excess of the loss calculated by Mr Fox and to which reference was made early in these reasons. 58 What Mr Studman said in this regard seems to have been notified first to those conducting the proceedings before me on behalf of the Commonwealth only very late and in insufficient time for them to be able to deal with them. The argument is not without its complexities and were it necessary to deal with it, I would require further help from the parties before arriving at a conclusion. It is common ground that, unless time is extended, forfeiture of the property restrained will occur on 24 August next and subject to the following remarks, I would have been disposed to grant an extension of time as Mr Studman has requested, either to permit further argument before me or, as seems to me preferable, to allow the debate to occur in the context of a hearing of the Commonwealth's application for a pecuniary penalty. In this connection, I may mention that counsel for the DPP submitted that there was not the evidence before me which would enable Mr Studman' superannuation benefits to be calculated. That may well be right but I suspect that there are a variety of statutory instruments which would need to be considered and which might be sufficient if only they can all be identified. Furthermore, given that it was only on 12 July that the Application for a pecuniary penalty order was filed, clearly both parties should have more time to consider the various issues which that application throws up. 59 However, given that to obtain the exclusion from the restraining order which he seeks, Mr Studman has also to show that the property involved was not, within s29(2)(c), the proceeds of unlawful activity, and I have concluded that it was, there does not seem to me any point in granting such an adjournment or extending time under s93 of the Act. 60 In light of the conclusions at which I have arrived, it becomes unnecessary to consider the third prayer of the Notice of Motion, involving s39. Costs of the Motion remain to be dealt with but at this stage the appropriate order is:- The Notice of Motion dated 8 April 2005 is dismissed. **********

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