Application is made by the Crown in each of these matters for a drug proceeds order under s 29 of the Confiscation of Proceeds of Crime Act 1989 (NSW) (the Act).
It is not in dispute, and I formally find that each defendant has been convicted for a drug trafficking offence within the meaning of s 4 of the Act. As for Mr Jordan, this conviction was in this Court on 27 June 2023 for supply prohibited drug, being methylamphetamine. As for Mr Field, the conviction was on 4 April 2023 being supply prohibited drug, being methylamphetamine.
Applications for drug proceeds orders must be made within six months from the date on which the defendant is sentenced for a drug offence (see s 13(3) of the Act). I am satisfied that each of the applications was made within the relevant time. The proceedings are civil proceedings so the Court must be satisfied on the balance of probabilities of the relevant matters. Drug proceeds orders are "confiscation orders" within the meaning of the Act. Other confiscation orders are "forfeiture orders" and "pecuniary penalty orders".
Drug proceeds orders are dealt with in Part 2 Div 4 of the Act.
Section 29 of the Act provides as follows:
"(1) If an application is made for a drug proceeds order against a person (in this division called the defendant) convicted of a drug trafficking offence, the Court must -
(a) determine whether the defendant has derived any benefit in connection with drug trafficking at any time, and
(b) if the Court believes the defendant has so benefited, assess the value of any such benefit, and
(c) order the defendant to pay to the State a pecuniary penalty equal to the amount so assessed."
Section 30 of the Act relevantly provides:
"(1) A court is to assess the benefits (if any) derived in connection with drug trafficking by having regard to information before the Court concerning all or any of the following matters -
(a) the money, or the value of property other than money, that came into the possession or control of the defendant, or another person at the request or by the direction of the defendant, at any time in connection with drug trafficking by the defendant,
(b) the value of any benefit that was provided for the defendant, or another person at the request or direction of the defendant, in respect of the defendant's involvement or participation in a public promotion relating to drug trafficking (or such part of the value of the benefit as is commensurate with the proportion of the defendant's involvement or participating that is concerned with drug trafficking),
(c) the value of any benefit, other than a benefit of a kind referred to in para (a) or (b), that was provided for the defendant, or another person at the request or by the direction of the defendant, because of 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,
(e) the amount that was, or the range of amounts that were, ordinarily paid for the doing of an act or thing similar or substantially similar to the doing of the act or thing constituting the drug trafficking,
(f) the value of the defendant's property appearing to the Court -
(i) to have been held by the defendant at any time since his or her conviction, or
(ii) to have been transferred to the defendant at any time since the beginning of the period of six years that ended when the proceedings were instituted against the defendant,
(g) the value of the defendant's income and expenditure -
(i) at any time since his or her conviction, or
(ii) at any time since the beginning of the period of six years that ended when the proceedings were instituted against the defendant.
(2) In considering whether to treat a benefit of the kind referred to in subs (1)(b) as a benefit derived in connection with drug trafficking, a court may have regard to any matter it thinks fit, including the public interest and any research, educational or rehabilitative purpose of the public promotion concerned...
(6) In assessing the value of the proceeds of drug trafficking of a defendant convicted of a drug trafficking offence or offences, any expenses or outgoings of the defendant in connection with the commission of the offence or offences must not be deducted..."
R v Jordan; R v Field [2024] NSWDC 287 | Case summary | Zoe
I heard the application for these orders on 19 March 2024. I stood these applications over until today to allow the Crown to make supplementary submissions with respect to whether or not in assessing the value of any benefit to the defendants derived in connection with drug trafficking offences, hardship to the defendants could be taken into account.
I am grateful to Mr Dixon from the ODPP for his submissions and assistance on the matter. I accept the submissions of the Crown that on a proper application of the Act and in accordance with the authorities I must (see R v Hall [2013] NSWCCA 47):
1. First, determine whether the defendant derived any benefit from their drug trafficking,
2. Secondly, if so, assess the value of that benefit, and
3. Thirdly, once the value of the benefit is assessed, I must make a drug proceeds order for the value of the benefit determined. There is no discretion to refuse the order if a benefit from the drug trafficking can be assessed.
I also accept that there is no mechanism in the legislation to refuse to make such an order on the basis that it would cause financial hardship to a defendant. Section 30 of the Act, as I have mentioned, prescribes the matters the Court is to have regard to in assessing the benefits, if any, derived by the defendant in connection with the drug trafficking. While s 30(1)(g) provides that the Court is to have regard to the value of the defendant's income and expenditure, as I have set out, this is for the purposes of the Court assessing any benefit derived by the defendants and by way of a comparator. I do not think a proper reading of this section means that the assessment of the income or expenditure of the relevant defendant can be used to indicate hardship such that an order ought not be made if there is otherwise a benefit assessed (or capable of being assessed) as having been derived in connection with the drug trafficking. I also note that s 30(6) provides that in assessing any benefit derived from drug trafficking, the Court is to disregard expenses and outgoings of the defendant in connection with the commission of the offences.
I will now assess the evidence with respect to each defendant.
[2]
Evidence with respect to Mr Glen Jordan
As to Mr Jordan, the Crown relies on an agreed facts documents from the sentence proceedings and a statement from Detective Senior Constable O'Rourke from Tamworth detectives dated 30 August 2023.
The agreed facts are that Mr Jordan was involved in the ongoing supply of drugs for financial reward. He supplied a total of 20.6 grams of MDMA and sold one gram for $100. There were 10 separate sales.
The agreed facts also state that he supplied 276.05 grams of methylamphetamine at prices of (i) 0.1 gram for $50, (ii) one gram for $400, and (iii) 1.75 grams, or a half-ball, for $650. The agreed facts state that there were 94 separate sales.
The agreed facts also state that he supplied 500 grams of cannabis; (i) one gram for $20, (ii) seven grams for $120, and (iii) 14 grams for $200. There were 27 separate sales.
I note that the MDMA and cannabis offences were Form 1 offences. Ordinarily, if a matter on a Form 1 is taken into account at sentencing, the offender is not a convicted for that matter. However, under the Act the Form 1 matters are relevant to the assessment of any benefit derived by the defendant as they are captured by the definition of "conviction of serious offence" in s 5(1)(d) of the Act.
Detective Senior Constable O'Rourke states that the sale of the MDMA was $100 per gram. He gives an opinion that the benefit derived from the sales was thus $2,000.
He says that with respect to the methylamphetamines the defendant obtained an average benefit of $102,500 for sale of 276.05 grams. He reached this figure by taking into account an assumption that there were some sales of larger amounts and some sales of smaller amounts. He used an average sale of 1.75 grams at $650. He has assumed in Jordan's favour that he sold the drug as he received it and did not further "cut" it with other substances to increase the amount of the drug that was available for sale.
For the cannabis he reached a figure of $5,400 again making assumptions as to there being sales of larger and smaller amounts and using the average sale of 14 grams for $200.
This gives, in his opinion, a total benefit of $109,900.
The defendant gave evidence. He said he was a heavy user of drugs at the time. He said he broke the drugs down into half which he sold and the other half he used. He accepted that there were values ascribed to his sale of drugs in the agreed facts, although he now thought that they were a little high. He also gave evidence that he did not have any financial gain, he just used the sale of the drugs to finance his habit. He said he was a very bad drug addict at the time and had gambling problems. He said he has no assets and no savings at all, his house had been broken into and all of his belongings had been stolen and his car had been confiscated. He said he had no bank account and when he is released, when he will be about 50 years of age, he will need to find a job.
There was no serious challenge by the Crown to the evidence of the financial circumstances of the defendant.
It is often the case in matters such as this that the Court does not have before it information which would enable a penny perfect calculation of the benefits derived by a drug trafficker. The Court can only do the best it can to assess any benefit on the information before it. Here, that information is the opinion of Detective Senior Constable O'Rourke on the amounts of drugs sold and the values of the drugs based upon the agreed facts on sentence. There is, in my opinion, no reason that evidence should be rejected.
The evidence that the defendant used half of the drugs himself and only sold the other half to fund his own drug habit does not reduce the benefit he earned. That is because he had the benefit of not having had to pay for the drugs he used by reason of him selling the drugs to fund that habit.
I therefore assess the benefit derived in connection with the drug trafficking for Mr Jordan as at $100,000, rounding the figure of Detective Senior Constable O'Rourke down to give some effect to the defendant's statement that he thought the values were a little high.
[3]
Evidence with respect to Mr Jake Field
In respect to Mr Field, the agreed facts on his sentence proceeding contained agreement as to the amount of the drugs supplied by him, but not to their value. The amount in issue is 172.7 grams of methylamphetamine which was supplied by him.
The Crown relies upon the opinion of Detective Senior Constable O'Rourke in order to assess the value of the benefit obtained by the sale of the drugs. The opinion of Detective Senior Constable O'Rourke is based upon his experience as a police officer in the investigation and prosecution of drug offences and his knowledge and belief as to the market value and amounts or range of amounts paid for such drugs. This is a permissible method of the Court assessing a benefit derived by a defendant for the purposes of the drug proceeds order (see s 31A of the Act).
Detective Senior Constable O'Rourke gives evidence as to the range of values and sales of various amounts of the drug in the case of Mr Field. He calculated the maximum benefit that could have been obtained, but he then discounted that amount to account for his assumption that the average sale of one gram at $600. He therefore reached a benefit therefore of $103,620.
There is no reason for me not to accept his evidence and I will similarly discount the benefit by a small amount to round it down to allow for Mr Field's statement that he too thought the values were high.
Mr Field also gave evidence. He told me he had no assets. He had four children to care for on his release. He said he only sold drugs to fund his own habit. He is almost 28 years old and will try and get some work in building when he is released.
Again, the evidence as to his financial status was not seriously challenged by the Crown. Also again, the fact that he only sold drugs to finance his own drug habit does not reduce the benefit to be assessed for the reasons I have stated with respect to Mr Jordan.
I assess the benefit he derived in connection with the drug trafficking as $100,000.
[4]
Comments regarding order against offenders
Before I make formal orders I want to say something further. There is no doubt that the provisions of this Act are, in appropriate cases, a powerful tool to be used by the Crown. I accept the Crown's submissions that the Act is intended to make engaging in such crimes unrewarding and unproductive. The Act enables forfeiture orders, confiscation of property, pecuniary penalty orders and drug proceeds orders. As I have said, in an appropriate case the deterrent effect of such available orders is significant.
However, in this case the unchallenged evidence of each of the defendant's is that they have no assets. They are each serving gaol sentences and when released will need to take steps to ensure they engage upon a path of rehabilitation and become useful members of the society. They will now face a significant debt on their release which can be enforced as a civil debt. This is in the circumstances where the Crown is aware from the evidence that they have given (and which it did not challenge) with respect to their financial circumstances that neither has any assets at all and no prospects of satisfying that debt upon release. Yet the Crown persisted with the application.
In my opinion, in such circumstances where the Court is required by the Act to make the drug proceeds orders and cannot have regard to any hardship that might be caused or the financial position of the defendants, the making of such orders may, in fact and practice, have a significant negative application on the prospects of rehabilitation of defendants. In my opinion, those responsible for the decision to make such applications should carefully consider the benefits and possible negative impacts of these orders in circumstances such as this. Rehabilitation is an important purpose of sentencing. Orders against defendants such as these which mean that on release from prison they will be confronted with a significant pecuniary debt and no lawful means to satisfy it, could have a negative impact on the offender's rehabilitation.
As I have said, this is not a case where the defendants have multiple properties or assets gained from the drug trafficking which would properly the subject of such applications and used to satisfy a confiscation order of any type. Rather, it is the case of the Crown making an application for a drug proceeds order in circumstances where the defendants will now come out of prison with significant civil penalty orders against them with no means to pay.
Nevertheless, for the reasons I have given, I am bound to make a drug proceeds order with respect to each defendant.
[5]
Orders
In respect to Mr Jordan, I therefore make the following orders:
1. Pursuant to s 29(1)(a) of the Act, I determine that the defendant has derived a benefit in connection with drug trafficking.
2. Pursuant to s 29(1)(b) of the Act, I assess the value of such benefit to be $100,000.
3. Pursuant to s 29(1)(c) of the Act, I order the defendant pay to the State a pecuniary penalty of $100,000.
In respect to Mr Field:
1. Pursuant to s 29(1)(a), I determine that the defendant has derived a benefit in connection with drug trafficking.
2. Pursuant to s 29(1)(b) of the Act, I assess the value of such benefit to be $100,000.
3. Pursuant to s 29(1)(c) of the Act, I order the defendant pay to the State a pecuniary penalty of $100,000.
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Decision last updated: 15 July 2024