R v Diep; R v Vosinthavong [2003] VSCA 203

5. Leave was granted to each appellant to appeal against these sentences. In the case of the appellant Vosinthavong there were three grounds of appeal. In the first place, it was said that the sentence was manifestly excessive; secondly, it was said that there was a failure to give sufficient weight to four factors, namely, the appellant's age, lesser participation in the offence, her efforts at rehabilitation since June 2002 and her lack of significant prior convictions; and thirdly, that the judge failed to give sufficient disparity between the sentence imposed on Diep and on the appellant Vosinthavong. In the case of Diep there were some ten grounds but they may be summarised in the following way having in regard to the way in which they were argued. In the first place it was said that the sentence was manifestly excessive and in particular, having regard to the appellant's addiction to heroin and his attempts at rehabilitation, that excessive weight was given to the element of general deterrence (grounds 1 and 3). Secondly, it was said that the judge failed to give sufficient weight to the immediate possibilities for rehabilitation (ground 2). Thirdly it was said (encapsulating the essence of grounds 4 and 5) that his Honour failed to give sufficient weight to the plea of guilty and in particular to the principles stated by the High Court in Cameron v. The Queen[1]. There were another five grounds but each was either explicitly abandoned or no argument was addressed to the Court upon them.

8. In addition, an application was made by leave out of time for leave to appeal against Diep's conviction on the second count of being in possession of a drug of dependence, being heroin. This arose during the course of the appeals relating to sentence in the following way. It is apparent that count 2 was a count that Diep had heroin in his possession on 1 June 2001, which was a date included within the "between dates" charge of trafficking on count 1 over the period 1 March to 2 June 2001. It will be seen that Diep conceded for the purposes of his plea and the appeal that he had been trading in heroin to the extent of $250 to $300 worth of heroin each day over the relevant period and that the heroin the subject of count 2 was found immediately after his arrest at the appellants' unit together with scales, scissors, tweezers and other similar equipment. The apparent confusion in dates in the two counts only emphasises that the charge relating to possession could not apply to events after Diep's arrest and must therefore relate to heroin which had been in his possession during the period of trafficking. Although the sentence of two years was to be served wholly concurrently and thus did not have any direct effect on the total effective sentence nor, seemingly, on the minimum period to be served before eligibility for parole, the Crown properly conceded that in the circumstances a separate conviction and penalty for that offence could not stand in that the appellant was thereby in part convicted twice with respect to the same offending. No objection was therefore made to the bringing of an application out of time for leave to appeal against conviction on the second count and the Crown likewise conceded that that application ought to succeed, with the consequence that the conviction and sentence should be set aside and a verdict entered in favour of Diep. It is unnecessary therefore to consider that application further save to make the required orders.

11. In the sentence appeals it is necessary to know something of the factual background which led to each of the appellants' sentences. In many ways the plea hearing and these appeals were simplified by concessions made on both sides as to the nature overall of the trafficking in question which came after considerable negotiation immediately before a contested trial was due to get underway. Unfortunately, what was thereby conceded and agreed, while making the case against Diep relatively clear and straightforward, left a good deal of uncertainty in relation to the activities of Vosinthavong, so far as her participation in the trafficking over the alleged three month period was concerned. Apart from confining the period of alleged trafficking down to a three month period, the only difference explicitly conceded in the case of Vosinthavong was that her involvement was less than Diep's. It might be thought also that, to a degree, the level of participation was reflected in the pecuniary penalty orders inasmuch as an order for $15,000, presumably as a proportion of $23,000 (although that was not stated), was accepted without apparent further discussion. It is clear that $23,000 imposed in the case of Diep corresponded precisely with a figure calculated at the rate of $250 a day for the 92-day period, choosing the lesser of the agreed daily figure received for the drugs. There seems to have been no further discussion of the figure of $15,000 in the case of Vosinthavong except to the extent that the judge accepted that her part in the trafficking was less.

14. As a result of the agreement between the parties the circumstances of the trafficking, at least in the case of Diep, were relatively simple. His and Vosinthavong's participation were entirely at street level, there being no evidence as to how and from whom the heroin was obtained, although it seems to have come from one Hung, a person not otherwise identified, and in a manner not described. The method adopted was relatively simple inasmuch as potential customers on a regular basis would contact Diep or Vosinthavong by phone, normally by ringing their house at Blackburn but occasionally on Diep's mobile phone, and arrangements would be made to fix a price and a meeting point. The customer would arrive at the designated meeting point, would ring Diep again and shortly thereafter he would arrive, sometimes alone, sometimes with Vosinthavong and very occasionally Vosinthavong came alone. The appellants, either separately or together, would arrive in a car, frequently a black Suzuki owned by Vosinthavong's parents and occasionally in a BMW apparently owned by Diep. The heroin would be exchanged for the agreed money sum and the transaction would ordinarily be finished in less than a couple of minutes. The meeting points were usually close to the Blackburn Station, although it seems that different streets and different points along each street would be chosen specifically for each transaction. Occasionally, especially in the earlier stages, a meeting point in Forest Hills was chosen and used. The phone calls were largely made to the appellants' premises at Blackburn where after the arrest some heroin was found together with the equipment, to which I have referred, which was necessary to package the heroin professionally into an acceptable form. It seems that more often than not Diep would answer the phone to take the order, but there were many occasions on which Vosinthavong answered the phone and took the order, though occasionally passing the phone to Diep. To what extent they each participated in the preparation of the heroin for sale is not clear, for, although Diep made most admissions readily upon being interviewed, Vosinthavong denied any knowledge of the transactions other than a suspicion that Diep might have had had an occasional dealing in the heroin. On the other hand records were found suggesting that Vosinthavong at least participated in the preparation of the "books" relating to the trafficking business.

17. As to volume of business, the agreed basis of the plea was that sales were made every day in the three month period from 1 March to 2 June and at the rate of $250 to $300 worth of heroin each day. When asked whether that was intended to represent merely an average or whether it represented a constant and unvarying rate of transactions, it appeared to be conceded that there may have been an occasional day when no business was done and that the rate per day approximated more to an average than to a precise figure, though in broad terms it was said that the figure of $300 was rarely exceeded. I should add that most transactions involved a payment of $50 per cap, although it seemed that some clients occasionally bought $100 worth.

20. What I have said so far should be sufficient for the purpose of Diep's appeal, but the participation of Vosinthavong is far harder to ascertain. She pleaded to the very same between-dates count of trafficking with an agreed level of business which was primarily directed to Diep's participation. When it was and is still said that Vosinthavong's participation was less, that unfortunately was left to the court to work out for itself and to deal with as best it may. The comparison is important because of the claim made of disparity, but there is relatively little upon which one might reach a firm conclusion. Complaint was made by the Court as to the extent of the appeal summary which in its original form seemed largely based on what the Crown proposed to open to the jury before the plea negotiations took place. A far more extensive summary has now been provided to the Court which is properly founded on the depositional and other materials available to the judge, but the difficulty is that the accepted level of offending by Diep, though confined by the concession as to dates, could not be extracted directly from those depositions or from his admissions. Whereas his concession and the agreed basis has at least made clear a very regular and businesslike trading, albeit at street level and in small amounts, the participation of Vosinthavong cannot be so easily deduced from those materials, in part because they cover only a small proportion of Diep's trafficking and in part because her own admissions when interviewed were so limited.

23. Doing the best I can, I would draw the following inferences from the materials now provided to the Court. As to storing and parcelling of the heroin, there must be little doubt that Vosinthavong was well aware of the business being carried on at their unit in Blackburn, so that she was clearly party to that aspect of the trafficking. As to the taking of orders, although it would seem that Diep was the prime contact and the one who most frequently fixed the places where the dealing would occur, there is again little doubt that Vosinthavong frequently answered the phone and took orders and made arrangements, at least occasionally, as to carrying out of the dealing. She was sufficiently familiar with the method of dealing to reach agreement as to individual transactions and, in fact, on occasions to carry them out by herself. On the other hand, there can be little doubt that most of the actual direct sales transactions with customers were carried out on the street by Diep. On a number of occasions Vosinthavong came too in the sense that she was either driving the car or in the car while the transactions took place. Sometimes it seems that she was the person who handed over the heroin in return for the money. The difficult matter is to determine how often she was in fact present for, although in one statement that appeared to be on almost every second occasion, her participation seems to have been less according to other witnesses. That, however, says nothing about the occasions in respect of which there is no direct evidence. Of course the matter cannot be determined merely by ascertaining who the direct perpetrator of each sale was, for, if she were a party to the transactions and acting in concert with Diep, then it may be that her responsibility was greater than if she were merely occasionally aiding and abetting him. The plea, nevertheless, was to a joint count of trafficking over the whole of the relevant period and the agreement as to degree of participation must therefore be solely as to the level of direct activity, not of responsibility. There is much material which suggests that she was the beneficiary, at least to a significant degree, of the business of trafficking carried on by both of the appellants, for the evidence as to the accounting records, such as they were, would strongly support that inference. That was reflected in the pecuniary penalty orders, whatever their conceptual defects, bearing in mind that no appeal was brought specifically as to the extent of the order against her.

27. Although the Crown conceded in the case of Vosinthavong that her sentence was outside the permissible range, it is preferable to deal first with the appeal of Diep because his offending was clearly the more serious and questions of parity and disparity have been raised only in the case of Vosinthavong. The sentence now to be imposed in her case must to some degree reflect the differences between the two cases and, insofar as disparity is relevant, her new sentence must be tailored to whatever is thought appropriate in the case of Diep.

30. Diep was the older of the offenders being 32 or thereabouts at the time of offending and 34 at the present time. He had a record of serious previous offending resulting in six convictions on three occasions in New South Wales for supplying or possessing drugs. The significance of these prior convictions may be gauged by the fact that, even on the first occasion of his being convicted of supplying a prohibited drug, he was sentenced in 1989 to 8 years' imprisonment with a minimum of 5 years before becoming eligible for parole. Not long after his release, in 1992, he was convicted of three counts relating to the possession of drugs for which he received 5 months' imprisonment, and then in 1996 he was convicted on one count of conspiring to supply prohibited drugs, as well as one of supplying prohibited drugs, for which he was sentenced in total to 5 years 9 months' imprisonment with a minimum term of 3 years 6 months.

33. Diep came to Australia as a refugee from Laos when he was 12 and had certain difficulties in his youth leading to his becoming a heroin addict. Before coming to Melbourne to be with Vosinthavong he had undergone a detoxification program, though he had clearly lapsed into taking heroin again. Since his arrest he has not taken any heroin and has obtained at least one educational certificate in clothing design and production. It was said that he had expressed some remorse at his behaviour and he had family support, including a brother willing to accommodate him upon his release. The judge, nevertheless, had no confidence that he had any genuine remorse and characterised him as a "career criminal". His Honour made no direct finding as to the extent of his prospects for rehabilitation, saying only that Vosinthavong's prospects were better. Concluding that each of the appellants had been carrying on trafficking in heroin for profit, the judge imposed the sentence on Diep that I have described earlier.

36. I shall leave the first ground asserting manifest excess until I have dealt with the other grounds put forward in favour of this appellant. It was said that insufficient weight had been given to Diep's prospects for rehabilitation. The judge clearly referred to the treatment he had sought and the fact that in prison he had been both drug-free and had made use of occupational education opportunities. However, bearing in mind his very serious previous record in what in this state would be described as trafficking, it would not be surprising if the judge had concluded that his prospects for rehabilitation were very limited and I see no direct evidence of the judge's failure to take into account that which the appellant had attempted to achieve in recent years. There seems little basis for considering that ground 2 has been made out, although the question of rehabilitation may bear upon the issue of manifest excess.

39. It was further said that the judge failed to give sufficient weight to Diep's plea of guilty and for this purpose ignored the statements of the High Court in Cameron's case. The dispute largely turned on whether the appellant Diep had pleaded guilty at the earliest opportunity. There is no doubt that at the Magistrates' Court the principal charge was first expressed in terms confined to the period in the count to which the appellants pleaded. At that hearing, because of the materials contained in the depositions, the principal charge was in effect expanded to allege trafficking over the period 1 December 2000 to 2 June 2001. Negotiations took place on and off thereafter, but a decision was made to present the two appellants for trial in respect of the count for trafficking over the longer period. It was only in the period immediately before the proposed trial that prosecutor and defence counsel reached agreement that each appellant would plead to a count confined as it had been in the first place, namely in respect of the period 1 March to 2 June 2001. This sort of bargaining is very frequent in relation to drug counts and it may be said that it is essential for those pleading guilty that they should have a firm understanding of the nature of the offending alleged against them before agreeing to make a plea. Doubtless it could have been said in this case, if Diep had pleaded at an earlier stage, that he pleaded at the earliest possible opportunity, but the converse would perhaps not be entirely fair to an accused in these circumstances, at least where the depositional materials were more consistent with a longer period of trafficking. The judge observed in this case that the pleas were made after the case had been called on for trial and in fact after there had been certain submissions relating to the law. He said that the Crown case was very strong and that must certainly be accepted in the case of Diep, who made a significant number of admissions in the course of his record of interview.

42. I am more concerned however that the judge appeared to accept the plea only "as indicating a willingness to facilitate the course of justice". Doubtless that is a relevant element in any plea if it can be shown to be the case, as it ordinarily will. But in my opinion, for reasons which have been stated in this Court on a number of occasions[2], the basis for accepting a plea of guilty and its significance as described in Cameron's case must take into account the nature of the legislation applicable in that jurisdiction. Without examining further those authorities it is sufficient to say that the willingness to facilitate the course of justice is in this state but a limited aspect to the plea of guilty's effect in the ordinary case. There is a mandatory requirement in this jurisdiction[3] that a plea of guilty should be taken into account in every case, whether or not one can discern a willingness to facilitate the course of justice or indeed to produce any other relevant benefit ordinarily described as resulting from a plea, such as relieving witnesses from the burden of undergoing cross-examination and the like. Perhaps the ground relied on misunderstood the significance of Cameron's case in this jurisdiction, but in my opinion the description of the use to which the plea might be put was in fact too narrow. In broad terms it may be said that in every case a person pleading is entitled to some discount from a sentence which he or she would otherwise be subjected to: if there are other factors, as often there are, they may also be taken into account in determining the significance of the plea. In my opinion in the present case, there is good reason to believe that the sentence imposed on Diep was excessive and this particular factor may indeed be one reason for the judge's imposition of the sentence he did impose, to which I shall now turn.

45. In my opinion, although the matter has not been free from difficulty because of the serious nature of the offending and Diep's bad record, the sentences here imposed were excessive, partly for the reason I have already stated and partly for general reasons arising from the nature of the offending and the conduct of this offender.

48. Before dealing with the general considerations relating to this ground, there is one specific argument relied upon which I have already dealt with, although in a different way. Counsel for Diep contended that the sentence of 2 years' imprisonment on the charge of possession of heroin was itself manifestly excessive. It may be conceded that it had no effect on the total effective sentence and one cannot be sure what bearing it had on the minimum term imposed by the judge. Nevertheless, the judge obviously viewed it seriously and it cannot be thought that it was entirely irrelevant to that latter question. Arguably, therefore, there was some double counting so far as that offence was concerned but it has already been accepted by the Crown that the conviction itself should be set aside, and that is what the Court proposes to do. Consequently in law it was improper to sentence this appellant for this offence, albeit that no point was taken before the learned judge. As the conviction and sentence on count 2 must be set aside, the Court must re-sentence in a manner appropriate to conviction solely on count 1, forgetting for the present the fine imposed on count 3 as to which there is no challenge. I would add parenthetically that there is be some reason to think that the sentence imposed on count 2 was itself excessive having regard to the small amount of heroin in fact found.

51. The question whether the present sentence is manifestly excessive may thus be thought to be somewhat artificial if the Court must re-sentence. Nevertheless the arguments have a bearing on what will be an appropriate sentence. To my way of thinking the sentence of 8 years with a minimum of 6 years for this offence was manifestly excessive. There is no doubt that it represented a serious and consistent breach of the law in respect to an offence which the courts have properly always viewed as very serious. Moreover such mitigating factors as ran in favour of this appellant so far as his character and potential for rehabilitation were concerned had to be discounted significantly if one took into account on the other side his very serious record of prior offending in precisely the same field. He has continually flouted the law for well over 10 years and seems to have been incapable of learning from the severe sentences handed out to him in New South Wales. On the other hand, one cannot ignore his plea of guilty, especially having regard to the statutory requirements, and it must be inferred that the sentence which would have been passed upon him but for his plea would have been significantly greater, in the range of nine to ten years for the head sentence.

54. Looking at the matter from that perspective I cannot accept that the level of sentencing imposed was within the appropriate range. Persistent and flagrant though the offending was, it was all at street level and for comparatively small sums. The income obtained by this appellant and Vosinthavong was relatively modest and the total amount obtained gross over the three month period was in the range only of $23,000 to $27,000. My impression in the present case is that the sentence was manifestly excessive as being beyond the customary range.

57. The question remains what is an appropriate sentence for the appellant Diep. In my opinion, having regard to the level of trafficking, his character and record and the various other factors, including his plea of guilty, I consider that the appropriate sentence in this case should be that the appellant Diep be sentenced to be imprisoned for a term of 6 years. As to a minimum term, having regard to the real doubts which must be expressed as to his capacity for rehabilitation, notwithstanding his attempts in the last year or so, I consider that the period to be directed before he becomes eligible for parole should be 4 years. I shall deal with the pecuniary penalties below.

61. It should be apparent that, apart from the concession made by the respondent that the sentence was outside the permissible range (to which I have already referred), the re-sentencing of the appellant Diep would itself call for a re-sentencing of Vosinthavong in order that the principles of parity and disparity should be properly reflected.

64. Before dealing with these questions it is necessary to say something about the appellant Vosinthavong herself. At the time that the offence was committed she was 20 years of age and is now 23. She was born and educated in Australia though she is of Laotian origin. She appears to have had a stable family background, such that there is little explanation for either her addiction to heroin or her participation in this and similar offences. She had only one prior finding of guilt, for using a drug of dependence, namely heroin, for which she was released for 12 months on her own undertaking, but regrettably, bearing in mind that she was awaiting trial and sentencing for this offence, she was later charged and convicted for trafficking in heroin which took place almost one year later. That resulted in a community based order which she complied with and which has led, perhaps fortunately, to some clear evidence of her attempts at rehabilitation, for she is now again living at home and has obtained a number of occupational qualifications. The judge, however, appeared to treat this matter as evidence supporting the unfavourable conclusions which he drew in relation to the present offence, in particular against the inference that she was overborne by the appellant Diep and in favour of the conclusion that she intended to "pursue a criminal career". It was not legitimate for his Honour to use this later material to draw inferences as to the offending, at least in these circumstances, although the facts were not irrelevant for the purpose of drawing conclusions generally as to her character and the likelihood of rehabilitation. Nevertheless the judge did take into account the absence of any earlier criminal record and her better prospects for rehabilitation. The sentence he imposed, he said, reflected those matters and in particular her lesser role in the offending itself, as well as her comparative youthfulness.

67. There is, nevertheless, no reason to doubt the propriety of the respondent's concession that the appellant Vosinthavong had received a manifestly excessive sentence in all the circumstances. Apart from the question of parity, which is now exacerbated, the sentence was too great for a person who had no significant prior record, who was comparatively young and who, as the judge found, was to a degree influenced by Diep, which led to the inference that it was his initiative that lay behind the trafficking operation in which she participated. I have already attempted to deal with the extent of that participation in the offence. It must be borne in mind that there was a clear concession at all stages of plea and appeal that her participation was less, but the extent was not described. There is little doubt that her participation on the street, for the purpose of the individual sales and deliveries, was less frequent, but it is clear that her participation at the unit they jointly occupied was by no means so unimportant. She seems to have participated to some extent in the "banking" processes of the trafficking business, as well as regularly answering the phone to customers. Because of her failure to make any relevant concessions in her record of interview, it is difficult to be sure of much else. Nevertheless, bearing in mind her plea of guilty, the head sentence of 5½ years was clearly outside the appropriate range.

70. It is unnecessary to say anything further as to the other grounds which largely went to the issue of manifest excess in any event. Although her offending was deliberate and serious, nevertheless, having regard to all the circumstances her sentence must be reduced. In my opinion a head sentence of 4 years' imprisonment is the appropriate term for the count of trafficking. I would direct that two years be served before the appellant Vosinthavong becomes eligible for parole, which should make sufficient allowance also for her greater prospects for rehabilitation.

74. There was no specific notice of appeal pursuant to s.142 of the Confiscation Act 1997, nor was that subject a ground of either appellants' notice of appeal as that section appears to allow. It arose rather by a side wind while considering the comparative degree of Vosinthavong's offending as compared with that of Diep. When raised, however, it was manifest that pecuniary penalty orders totalling $38,000 had been made against the two accused notwithstanding that the agreed extent in monetary terms of their offending was $23,000. Counsel for the Crown readily conceded that such an outcome would be unfair to one or both of the appellants. The matter was stood over to the extent of allowing each party to put in written submissions, though otherwise judgment was reserved in each case.

77. Thereafter counsel for the respondent in a helpful supplementary submission set out the relevant statutory basis for such orders together with a brief analysis of the relevant authorities. More importantly they conceded both that the orders made against each appellant were not made on a basis consistent with authority in this State and that on re-sentencing orders of different quantum should be made in each case. Moreover it was accepted that it was inappropriate to make pecuniary penalty orders on a joint and several basis so that, whatever orders were made, the total should not exceed $23,000. The latter principle was said to derive from the decision in R. v. Nieves[4], albeit that in certain respects the reasoning in that judgment was qualified in R. v. Peterson[5] and Tsolacos[6]. The reasons for those qualifications, however, have now been largely set at nought by the provisions in the more recent Confiscation Act and in amendments thereto.[7]

80. The concession made that there should not have been pecuniary penalty orders exceeding the total amount agreed to have been received from the drug dealings means that, in effect, both orders must be set aside. Though there is no ground in either case specifically invoking the powers under s.142 of the Confiscation Act, the Court may either act on the Crown's concession or, perhaps, deal with the issue merely as a particular of manifest excess, treating, as have the authorities, the imposition of a pecuniary penalty order as part of the sentence itself.

83. What was said in Nieves and is accepted by the respondent is not merely that there should not be joint and several orders but also that there should be orders based on the appropriate allocation of the benefits received by each accused. In the case of a joint offence that would be close to impossible except in the most unusual case, but it was also said in Nieves and likewise accepted by the respondent that, in the absence of any specific evidence as to the benefits received by each of two or more parties jointly convicted, a court should merely allocate the benefits equally between the accused thereby making orders which do not exceed the total sum by which the accused in general benefited. In the present case, therefore, it would be open to the Court to make an order merely by equally dividing $23,000, so that the pecuniary penalty order in each case would be $11,500.

86. On the other hand, it is said that, although there is no direct evidence of the extent to which each appellant in the present case benefited, there was at least a concession that one party, Vosinthavong, played a less significant role and there is likewise a decision by the learned judge whereby, even if in irregular form, he differentiated between the two appellants so far as the pecuniary penalty orders were concerned, in that, although an order was made for $23,000 against the appellant Diep, the order against Vosinthavong was only in the sum of $15,000. However, it is not possible from reading the materials available to this Court or from the transcript to discern why, precisely, those figures were chosen. Consequently, it is not practicable to ascertain the benefits derived by each of the appellants, and one should not act on the basis merely that one party's participation was less. Living in the same household they may simply have shared their ill-gotten gains.

89. In all the circumstances, therefore, I consider that it would not be appropriate to make orders in differing amount against each of the appellants. As the total amount of the orders may amount to, but should not exceed, the agreed sum

received, namely, $23,000, especially having regard to s.67(1)(aa) of the Confiscation Act[8], there should be a division equally of that amount for the purpose of that act, in accordance with the decision in Nieves. In each case the amount of the order will be considerably less than that formerly imposed upon them, so that I would propose that both in the case of Vosinthavong and in that of Diep there should be a pecuniary penalty order substituted in the sum of $11,500.

93. In my opinion therefore each of the appeals should be allowed and new sentences substituted, including new pecuniary penalty orders, in the manner and form already described.

103. I agree with the disposition of these appeals proposed by Ormiston, J.A. I do so for the reasons advanced by him in his judgment.

[2] See R. v. Barnes [2003] VSCA 156 at [24] and esp. R. v. Tasker and Tasker [2003] VSCA 190 at [16]- [26] and R_. v. RND_ [2002] VSCA 192 at [18]- [19], referring to R. v. Sharma [2002] NSWCCA 142; (2002) 54 N.S.W.L.R. 300 and R. v. Place [2002] SASC 101; (2002) 81 S.A.S.R. 395.

[3] See s.5(2)(e) of the Sentencing Act 1991.

[4] [1992] VicRp 15; [1992] 1 V.R. 257, decided under the Crime (Confiscation of Profits) Act 1986.

[5] [1992] VicRp 20; [1992] 1 V.R. 297.

[6] (1995) 81 A.Crim.R. 434.

[7] See esp. s.67 and the amendments made in 1998 by the Miscellaneous Acts (Omnibus No. 1) Act of that year.

[8] Which entitles the Court to make an order on the basis of "any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money".