(2) The order of Latham J under s.27 was made upon the basis that, on the civil standard of proof, between 1997 and 2003, the applicant had in fact obtained the amount of $407,084 from illegal activities in the six year period. That money and those activities were clearly unrelated to the establishment and maintenance of the cannabis plantation.
50 Accordingly, the submission for the Crown must be accepted, namely, that the finding made and the basis for the order by Latham J on the application by the Crime Commission, "… reflects the offender's ill-gotten gains which, in accordance with the policy of the Act, and irrespective of the sentence for this offence, the offender should be required to disgorge" (Crown's written submissions at [28]).
51 The Crown's further submission is plainly correct (at [30]):-
"The mere fact that the applicant had yet to make further ill-gotten gains from this particular criminal venture through an intervention of the NSW Police force does not take away from the fact that he had obtained from other illegal activities $407,084."
52 In relation to the two qualifications referred to in Brough (supra), it is important to note that the evidence at the sentencing hearing did not focus upon factual matters that would be required for a determination as to whether there existed "exceptional or unusual circumstances" or whether the sentence may have "a disproportionate or exceptional effect" on the applicant.
53 There was, in particular, little by way of evidence before the sentencing judge directed to establishing that the recovery of $407,084 had created exceptional or unusual circumstances or would give rise to a disproportionate or exceptional effect on the applicant.
54 There was a paragraph in the Agreed Statement of Facts, Exhibit A, recording the fact and terms of the order made by Latham J on 6 September 2005.
55 There was relatively brief evidence called from Ms Natolo, the applicant's step-daughter: transcript, 17 September 2009 at pp.12 to 17. However, her evidence was directed to other issues. There was no evidence as to the applicant's financial position before or after the making of the order under the Criminal Assets Recovery Act.
56 The scope of the submissions made at the sentencing hearing was quite narrow. They are recorded at transcript, p.20, line 35 to p.21, line 45 and p.24, lines 20 to 26. There was no submission made on the issue of exceptional or unusual circumstances. Indeed, no reference was made to the judgment in Brough (supra) or Kalache (supra).
57 Hence, the Crown's observation in its written submissions (at [35]) that an examination of the submissions made before the sentencing judge revealed that not only was this Court's decision in Kalache (supra) not referred to but no attempt was made to argue that the applicant fitted within the first of the two exceptions referred to in the passage from Brough (supra) set out above.
58 It was contended for the applicant on this application for leave to appeal that an order under s.27 of the Criminal Assets Recovery Act meant that there was "a disproportionate or exceptional effect" for three reasons (Appellant's Written Submissions, p.8):-
"1. No real parity was achieved between the appellant and the co-offender, Mr Mangano.
2. Given the appellant had demonstrated rehabilitation and had the burden of a significant delay in his arrest by police … this ought to bring the matter into the exceptional category so that a reduction in his sentence would be proper.
3. The confiscation order meant that the appellant's sentence was totally disproportionate and more so, when considered that none of the other co-offenders suffered such an impact."
59 The issue raised as to the absence of any "real parity" between the appellant and his co-offender, Mr Mangano, is, with respect, without any foundation and, in my opinion, cannot establish exceptional or unusual circumstances as discussed in Brough (supra).
60 The fact that the co-offenders were not made subject to an application or an order made pursuant to the Criminal Assets Recovery Act is entirely irrelevant. That fact could not on any basis constitute exceptional or unusual circumstances such as to justify a different approach to sentencing the applicant.
61 A matter of importance on this issue is that the applicant was to be sentenced on the evidence that was before the sentencing court. In that respect, it is to be noted that there was no evidence adduced at the sentencing hearing that any of the applicant's co-offenders had the benefit of illegal or "ill-gotten" gains during the relevant six year period and there was no evidence that any application under the Criminal Assets Recovery Act had been made concerning them. Accordingly, there was no basis upon which leniency ought to have been extended to the applicant because of the confiscation order.
62 I accept the Crown submission that the question of parity in relation to criminal asset recovery simply does not arise on the facts of this case. I accept, in particular, the submission made on behalf of the Crown (written submissions at [37]):-
"… To suggest that this applicant should be dealt with more leniently because he had gained $407,084 in illegal gains over six years, whilst his co-offenders had not, and his illegal gains had been lawfully obtained by the State pursuant to the relevant legislation is perverse"
63 It was further argued on behalf of the applicant that rehabilitation and delay should have been taken into account. Quite apart from the fact that the sentencing judge did consider those matters and take them into account, it was, in my opinion, simply not appropriate for her Honour to have additionally been required to take those matters as also establishing "exceptional circumstances" as referred to in Brough (supra).
64 In relation to the deterrent effect in sentencing, the order that the applicant pay to the Treasury the amount of $407,084, being the amount assessed under s.27 of the Criminal Assets Recovery Act was, as already noted, on the findings of Latham J, related to other illegal activities that generated unlawful income.
65 The criminality for which the applicant was sentenced by the District Court was one for which the applicant stood to gain a very significant financial benefit from the commercial cultivation of cannabis. In determining the criminality of the applicant, the sentencing judge was required to take into account the applicant's prospective gain from the plantation. The fact that he had been required to disgorge ill-gotten gains from other illegal activities could have no relevance to or bearing on sentencing in respect of the specific offence under s.23 of the Drugs Misuse and Trafficking Act.