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[2014] NSWDC 17
District Court of NSW
2014-03-13
Mr J
Original judgment source is linked above.
Confiscation of Proceeds of Crime Act 1989 1The Confiscation of Proceeds of Crime Act 1989 (the Act) empowers a court on the conviction of a defendant, to make orders for the confiscation of property derived from, or used to commit a "serious offence" within the meaning of the Act 2The principal objects of the Act as set out in s 3 relevantly include: (1)To deprive persons of the proceeds of, and benefits derived from, the commission of offences against certain laws of the State, and (2)To provide for the forfeiture of property used in or in connection with the commission of such offences. 3Division 4 of the Act provides for drug proceeds orders. An application for a drug proceeds order may be made when the defendant is convicted of a drug trafficking offence: s 29. That section requires the Court to determine whether the defendant has derived a benefit in connection with drug trafficking, and if so assess the value of the benefit and order the defendant to pay the State a pecuniary penalty in that amount. 4Section 30 (1) provides that in assessing the benefits (if any) derived in connection with drug trafficking, the court is to have regard to information before the court. Here relevantly those matters noted in subsections 1 (a) and 1 (d) as no evidence relating to the other subsections was before me: (a)the money that came into the possession or control of the defendant at any time in connection with drug trafficking by the defendant, (d) the market value, at the time of the drug trafficking, of substances similar or substantially similar to the prohibited drug or prohibited plant involved in the drug trafficking offence or offences, 5Section 30(6) provides, relevantly, that in assessing the value of the proceeds of drug trafficking of a defendant convicted of a drug trafficking offence, any expenses or outgoings of the defendant in connection with the commission of the offence or offences must not be deducted. Those terms are not defined in the Act and carry their ordinary meaning.
The evidence 6On 13 March 2014 at Nowra I sentenced Mr Delovski to a term of imprisonment of 6 years with a non-parole period of 4 years 6 months for the supply of a commercial quantity of Methylamphetamine. Mr Delovski had indicated a guilty plea in the Local Court. He adhered to that plea before me. 7The following facts were not in dispute: 1)In September 2011 Mr Delovski agreed to supply 10 ounces/280 grams of Methylamphetamine to a police undercover operative, "UCO". A middleman, Mr "X", facilitated the deal. 2)On 13 October 2011 the UCO gave X $45,000. X took the money into Delovski's home. 3)Delovski then organised for the delivery of 279 grams of Methylamphetamine to the UCO. He did not participate directly in the handover but observed the transaction take place. 4)Shortly after the drugs were supplied, X and the UCO handed $45,000 to Delovski. 8Four important matters were disputed during the sentence hearing: 1)Whether X initially handed $45,000 or $30,000 to Delovski, that is; did X take $15,000 for himself? 2)Whether Delovski was pressured into the deal by X 3)Whether Delovski was paid only $1,000 for facilitating the transaction between a unnamed principal and X and the UCO; that is, was he simply a facilitator who had no contact with the drugs and only passed on the money to his principal. 4)Whether Delovski used his runner/ employee, Mr Guest, to deliver the drugs or whether like himself, Guest was just helping the unnamed principal. 9Both X and Mr Delovski gave evidence. The other evidence was contained in the Prosecution brief. Exhibit A contained a facts document and transcripts of recorded conversations between Delovski, X and the UCO in October 2011. Exhibit B was a visual recording of X outside Delovski's home during the initial delivery of money. 10When I sentenced Delovski, I rejected his version of events. It was neither convincing nor consistent with what was recorded. While X could hardly be regarded as a person of credit, what he said did conform with what was recorded. 11I held, applying the principles set out in Olbrich v The Queen (1999) 199 CLR 270, that: 1)X initially handed $45,000 to Delovski. 2)X did not pressure Delovski into doing the deal. 3)Delovski was a drug dealer. This was not a one-off transaction. There was no other evidence as to the nature and extent of the offender's business. 4)I could not accept that Delovski was paid only $1,000 for facilitating the transaction between an unnamed principal, and X, and the UCO. 5)Delovski employed Mr Guest as runner to deliver the drugs. As a consequence I concluded: 6)Delovski had to obtain his drugs from someone, there being no evidence to suggest he was a manufacturer, but there was no evidence how much he paid for them.
Relevant Authorities 12The Proceeds of Crime Act manifests a plain and clear intention to effect the confiscation of property in the circumstances which it prescribes, regardless of the interests of any person in the property: Lee v DPP (CTH) 75 NSWLR 581 at [21]. 13In R v Staas (No 3) [2013] NSWDC 289, Judge Cogswell SC refused to make an order under s 29 of the Act that Mr Staas repay $62,000 which was given to him by an undercover operative as part of a supposed drug supply transaction. 14In that case there was evidence that the money for the transactions was passed on, on two of the occasions, to a specific person and on the third occasion probably to another person. It was also common ground that the extent of Mr Staas' profit was $500 an ounce and that the total value to him of the transactions with the undercover operative was some $3,500. As a consequence His Honour was satisfied Staas derived a benefit of $2,000 in connection with drug trafficking. He did not assess the value of that benefit at $62,000 because Mr Staas was the middle man. And as a result there was vagueness in the estimate of the amount actually taken as profit by him. 15In DPP v Nieves [1992] 1 VR 257, the Victorian Court of Appeal, dealing with that State's equivalent of the Act, set out "compelling reasons" for giving to the word "benefits" a meaning different from the word 'profits". Holding that: "The receipt of a sum of money is the benefit which a convicted person derives from the commission of the offence of which he or she has been convicted. The value of the benefit is the amount of money the convicted person has so received." 16In R v Hall [2013] NSWCCA 47, the Court of Criminal Appeal considered a matter where Judge Conlon SC refused to make a s 29 order as he did not believe there was sufficient evidence to enable him to do so. The Court there noted, applying R v Fagher (1989) 16 NSWLR 67, that when assessing the benefits derived from the illegal activity of drug taking there will normally be no records, or at best very inadequate records, unlike the evidence that may be available when the court is performing a conventional judicial task. 17The Court emphasised that the section does not speak of the facts proven or even of the 'evidence' adduced. It speaks of the 'information before the Court'. The Court held that: "Section 29(1) (a) requires the court to determine whether a defendant has derived any benefit in connection with drug trafficking at any time. If the court believes that a defendant has so benefited it must assess the value of that benefit (s 29(1) (b)) and order the defendant to pay a pecuniary penalty equal to the amount so assessed: s 29(1) (c). The assessment is to be made having regard to the information before the Court as to the matters identified in s 30(1) ..."
Determination 18Mr Delovski received $90,000 from the UCO. He had possession of and organised delivery by his employee of 279 grams of Methylamphetamine to the UCO in return for that sum. 19The defendant clearly has derived a benefit in connection with drug trafficking. 20To assess value of that benefit I must have regard to information before the court. In making that determination I must rely on the facts admitted or found by me at sentence. Here the only information is that Mr Delovski came into possession and had control of $90,000 and he received that sum in connection with his drug trafficking. 21There is evidence that at the time this sum was the market value of the drug. 22It seems reasonably clear that in order to have 280 grams in his possession Mr Delovski would have had incurred a debt or made an outgoing in order to obtain control of it but s 30(6) is clear in its terms. When assessing the value of the proceeds of drug trafficking I must not deduct any expenses or outgoings of the defendant in connection with the commission of the offence. I do not know what, if anything, Mr Delovski paid or promised in order to obtain the drugs supplied and for which he received $90,000 but whatever he paid or promised would, on the evidence available, be an outgoing or expense. 23The term 'benefit' is not restricted to profit. Even if what was done by Judge Cogswell in Staas is the correct approach, there is no information here that I could accept and rely on which allows me to conduct an assessment similar to that made by his Honour in that case.
Order 24I assess the value of the benefits derived by the respondent in connection with drug trafficking to be $90,000. 25I order the respondent to pay a pecuniary penalty to the State of $90,000 being an amount equal to the value of the benefits derived by the respondent in connection with drug trafficking.
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R
Darko DELOVSKI