R v McLeod [2007] VSCA 183

Court of Appeal (Vic)|2007-09-06|Before: MAXWELL P, REDLICH JA and HABERSBERGER AJA

CRIMINAL LAW - Sentencing - Whether forfeiture of property subsequent to sentencing a basis for reopening sentencing discretion - Automatic forfeiture offence - Application for exclusion of property after plea - Where application for exclusion settled after sentence - Whether sufficient evidentiary basis for sentencing judge to assess likely outcome of exclusion application - Whether sufficient evidentiary basis for sentencing judge to assess punitive effect of forfeiture - Onus on offender to prove forfeiture a mitigating factor - Whether evidence of subsequent forfeiture admissible on appeal as fresh evidence - Need for legislative change to enable subsequent forfeiture to be dealt with by sentencing judge - Whether 'fresh evidence' limited to facts capable of discovery by diligent enquiry - Sentencing Act 1991, s 5 - Confiscation Act 1997, , , &

The judgment of the court was delivered by Redlich JA

**1 This appeal raises a point of general importance about the relationship between sentencing and forfeiture of property under the Confiscation Act 1997 ("the Act"). The issue is as follows: where a person is convicted and sentenced for an offence, and there is subsequent forfeiture of property of that person by reason of the conviction, can the forfeiture be relied on in an appeal against sentence as a basis for reopening the sentencing discretion?

2 For reasons which follow, we have concluded that the subsequent forfeiture can be relied on on appeal, provided that the evidence of forfeiture constitutes "new evidence", that is, it shows the true significance of facts in existence at the time of sentence. We express the view, however, that subsequent forfeiture of property should preferably be dealt with by the sentencing judge, not by the Court of Appeal. The sentencing judge is best placed to make any necessary adjustment to the sentence imposed. To achieve this would require legislative amendment.[1]**

**3 The appellant pleaded guilty to two counts of trafficking in a drug of dependence (methylamphetamine and ecstasy), and single counts of obtaining property by deception, dealing with property suspected of being the proceeds of crime ($30 671 in cash), possessing cartridge ammunition without a licence and driving whilst disqualified (these last three being summary charges). He was sentenced in the County Court to a total effective sentence of three years and four months' imprisonment, with a non-parole period of two years, and ordered to pay fines totalling $800.

4 On 27 October 2006 this Court granted the appellant leave to appeal against the sentence. The principal ground relied upon is that the learned trial judge failed to take into account that some of the appellant's property was likely to be forfeited.

5 After the appellant was charged, a restraining order was made in respect of some of his property, including the family home, two motorcycles and money held in a bank account. The order was made pursuant to s 15(1)(b) and s 18 of the Act, the appellant having been charged with a Schedule 2 offence which was an "automatic forfeiture offence". That meant that the restrained property would be automatically forfeited 60 days after his conviction,[2] unless within that period of time application was made for an order under s 22 of the Act excluding the property from the operation of the restraining order.[3] Application for exclusion of the property from the restraining order could be made by any person (including the appellant) claiming an interest in the property.[4]

6 At the time of the plea in mitigation, no application for exclusion had been made. The sentencing judge was informed that the appellant's wife intended to make an application that her interest in the family home be excluded. The prosecutor informed the sentencing judge that the appellant might also be entitled to make application for exclusion of his interest in the family home. The prosecutor also informed the judge that the liability of the appellant's home to forfeiture would be a matter for negotiation and that the entire property would not necessarily be lost. The prosecutor submitted that, because of the uncertainty, the sentencing judge could only take the risk of forfeiture into account "in a general way".

7 Two days before the appellant was sentenced, he and his wife applied pursuant to s 20 of the Act for an exclusion order under s 22 in relation to the family home, one of the motorcycles and the money held in the bank account. They claimed unspecified "interests" in the property. In the application the appellant claimed that the property was "lawfully acquired" and was not "tainted property".[5] The appellant's wife claimed that she was not involved in any way in the commission of the offence and that she had not known that the appellant would use any of the property in connection with the commission of the offence.[6] It appears that the application was adjourned sine die without opposition from the Crown, pending the sentencing of the appellant.

8 The appellant and his wife subsequently entered into terms of settlement with the Director of Public Prosecutions in resolution of their exclusion application. They agreed to pay $30 000 to the Crown and further agreed to the automatic forfeiture of approximately $6600, being the funds in the bank account the subject of the restraining order. The cash which had been seized by the police at the time of the appellant's arrest had been automatically forfeited to the Crown 60 days after his conviction, there having been no application for exclusion in relation to that money. The Director agreed to release and discharge all of the other property from the operation of the restraining order. Orders which gave effect to the terms of settlement were pronounced by consent.

9 The prosecutor's submission on the plea had the effect of persuading his Honour to disregard the prospect of forfeiture of the appellant's property in sentencing him. The learned sentencing judge said that, as no further information was available as to what was likely to happen to the property the subject of the exclusion application, it was not a matter that he took into account in sentencing the appellant.

10 On this appeal, counsel for the Director conceded[7] that the learned sentencing judge had erred in failing to have regard to the likelihood of the appellant's property being forfeited, and that the sentencing discretion must be reopened as a result. (This was, effectively, a reversal of the position adopted by the Crown on the plea). To assist with re-sentencing (if such submissions were accepted), the appellant's counsel was asked to provide the Court with material establishing the lawful acquisition of the property[8] and verifying the agreed disposition of the exclusion application. The Court also indicated that further material could be filed by the appellant concerning his rehabilitation during his time in prison.

11 In supplementary submissions, however, counsel for the Director withdrew the earlier concession of sentencing error, arguing instead that the learned sentencing judge had been correct to disregard the potential forfeiture of the appellant's property, since he had had insufficient information to assess the likely extent of any forfeiture. Reliance was placed on the decision of this Court in R v Tabone[9] (referred to below).

12 Counsel for the Director further submitted that the evidence relating to the settlement of the exclusion application did not qualify as fresh evidence on the appeal,[10] and that the sentencing discretion was not reopened. Understandably surprised by the Director's further change of position, counsel for the appellant was given leave to file further submissions in reply.

13 To answer the questions raised by this appeal, it is necessary to examine the policy which underlies the circumstances in which forfeiture may occur, the interrelationship of the existing forfeiture and sentencing regimes, and when and how forfeiture may be taken into account in fixing a sentence.**

**14 In Sentencing: State and Federal Law in Victoria, Professors Fox and Freiberg describe the forfeiture measures of the Confiscation Act as "making no claim to serving any rehabilitative purpose, their impact intended to be incapacitative and deterrent." In their view, the operation of the legislation was not intended to be subject to the restraints of proportionality, totality and mitigation imposed by general sentencing principles.[11]

15 There has been limited judicial analysis of when and how confiscatory legislation should affect sentencing. This may reflect the great variation in circumstances, relating both to the acquisition of the forfeited property and to its use in the commission of the crime, and the variations which exist in the statutory regimes which provide for confiscation. Difficult questions arise as to how, as a matter of proportionality, forfeiture legislation should interact with the judicial imposition of sentences.[12]

16 The obligation to disgorge the proceeds of crime is not a penalty.[13] Disgorgement is necessary to prevent unjust enrichment.[14] Forfeiture of the proceeds of crime has, nevertheless, been treated as a mitigating factor in some cases.[15] Thus it has been said that pecuniary penalty orders which relate entirely to profits from the unlawful activity constitute an additional punishment.[16]

17 Disgorgement of benefits apart, forfeiture is relevant to penalty.[17] At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor in sentencing,[18] since it places the offender in a worse position than he/she was before the commission of the offence. That is, forfeiture has a punitive or deterrent effect.[19]

18 The sentencing principle of proportionality requires that the nature and extent of any forfeiture of property be considered in fixing the sentence.[20] That is not to say that such orders are always to be viewed as warranting mitigation of penalty.[21] It is necessary to consider whether the forfeiture will have a disproportionate or exceptional effect on the offender and may have a substantial deterrent effect.[22]**

Sentencing Act 1991 - when may forfeiture orders be taken into account?

19 Soon after it was enacted in 1991, the Sentencing Act was amended to include prescriptions as to the manner in which a sentencing judge might have regard to forfeiture. Introducing the amendments, the then Attorney General said:

"... [T]here have been difficulties in reconciling confiscation proceedings with the various aims of the sentencing process. In particular, on occasions courts have been reluctant to make confiscation orders where to do so would impose a punishment which would under general sentencing principles be regarded as disproportionate or unduly harsh. The bill resolves that difficulty by providing that, where the effect of the confiscation order is to disgorge the profits gained from the offence, it is not to be taken into account when a sentence is being imposed. This is because in divesting offenders of ill-gotten gains, the order simply restores them to the position they were in before the offence was committed. However where the order relates to previously owned property used in connection with the offence, or otherwise goes further than merely disgorging ill-gotten gains, the court will be able to take this into account in fixing sentences."[23]

20 Section 5 of the Sentencing Act 1991 deals with forfeiture in the following terms:

(a) may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property -

(i) that was used in, or in connection with, the commission of the offence;

(ii) that was intended to be used in, or in connection with, the commission of the offence;

(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

(ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property -

(i) that was used in, or in connection with, the commission of the offence;

(ii) that was intended to be used in, or in connection with, the commission of the offence;

(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

(b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence;

(c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence;

(d) must not have regard to a pecuniary penalty order made under that Act to the extent to which it relates to profits (as opposed to benefits) derived from the commission of the offence;

(e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act.

(2B) Nothing in sub-section (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the Confiscation Act 1997 as an indication of remorse or co-operation with the authorities on the part of the offender."

**21 A clear distinction is here drawn between forfeiture of the proceeds of crime which must be disregarded[24] and other forfeiture of property.[25] Where forfeiture "constitutes a punishment and not simply the deprivation of profits of crime, a sentencing judge can take that punishment into account in the determination of an appropriate sentence in the circumstances."[26] A failure to do so may constitute sentencing error.[27]

22 In R v Le; R v Nguyen,[28] for example, the offender's house had been used for the purpose of trafficking and hence was "tainted property", liable to automatic forfeiture. The sentencing judge accepted a Crown submission that he was entitled to disregard the prospect that the offender would almost certainly lose his property, because no adequate submissions or material had been placed before him. On appeal, however, the Crown argued that the sentencing judge ought to have had regard to the likely forfeiture of the offender's property, citing R v Do and DPP v Phillips in support of that conclusion. This Court agreed. The sentencing discretion was reopened to take account of the offender's loss of his interest in the house, as this would result in a substantial additional punishment.

23 In Whisson v Mead, the South Australian Full Court viewed the South Australian equivalent of s 5(2A) as a restatement of the law that forfeiture of property acquired for a lawful purpose, but applied to an unlawful purpose, is a matter properly to be taken into account in sentencing, to ensure that there is proportionality between the final outcome and the gravity of the offence.[29]**

24 Particular difficulties arise where, at the time the offender falls to be sentenced, there exists a possibility of future forfeiture. As Fox and Freiberg have said:

"Indeed, if any judicial discretion is retained in relation to forfeiture, it may not be exercised by the same court as that responsible for fixing sentence. This makes it difficult to rationalise the two sanction systems and to allow for their total effect on the offender. The timing of the sentencing and ancillary orders is also critical, particularly if a discretionary sanction precedes a mandatory one, rather than the other way around. The essential problem for the sentencer is whether, in determining the type of criminal penalty appropriate to the offender, and in determining its severity, allowance should be made for any confiscatory steps that have already been taken, or which might occur in the future. ... If sentence and forfeiture are being decided by the same judicial officer and the legislation authorising these sanctions is couched in discretionary terms, it is easier for the total punitive effect to be calculated and, if necessary, either or both sanctions be fine tuned to achieve the overall impact desired. But if mandatory forfeiture comes after sentence, particularly if ordered by a different court, the leeway for adjustment is negligible. It is possible for the sentence to be deferred to await the result of forfeiture proceedings, but if the latter are likely to be protracted, and the offender is being held in custody pending sentence, the tendency is to impose sentence immediately and either estimate the possible impact of forfeiture, or disregard the possibility altogether."[30]

**25 Recent decisions of this Court have held that the fact that property of an offender is at risk of forfeiture should be taken into account in determining sentence, as the forfeiture could constitute a substantial additional punishment: see R v Le;[31] Director of Public Prosecutions (Vic) v Phillips;[32] and R v Do.[33] In each case, there was sufficient evidence before the sentencing court to enable an assessment to be made of the likely effect of the forfeiture order upon the offender.[34]

26 In R v Yacoub,[35] a bench of five members of this Court found that the sentencing judge had erred in failing to take into account the risk of forfeiture of some or all of the appellant's restrained assets[36]. The sentencing judge had before him sufficient information to conclude that the limited forfeiture of the appellant's interest in some of the restrained property might well constitute a significant additional penalty.[37]

27 No error is committed, however, if the information available is insufficient to enable the sentencing judge to make an assessment of the likelihood of forfeiture, or of its likely effect. In R v Tabone,[38] Nettle JA pointed out that, even where forfeiture will occur automatically by operation of the Act, there must be "some basis in fact on which to assess the likely results for the offender". Otherwise -**

"any attempt to assess the effects [is] bound to be speculative and consequently of minimal utility."

"It may be added, generally speaking, that if a sentencing judge is to make anything of the effects of automatic forfeiture, it is incumbent on the offender to adduce evidence of the likely effects of the forfeiture and obviously mere assertions from the bar table or otherwise are not evidence. In the absence of that sort of evidence, there will be no error in a judge declining to take the effects of forfeiture into account."[39]

28 Tabone was subsequently applied in R v Tezer and Davis.[40] The appellant had pleaded guilty to an automatic forfeiture offence. His property was the subject of a restraining order under the Act. No application having been made for an exclusion order at the time of sentence, the Court concluded that the sentencing judge was unable on the material before him to decide whether the appellant would suffer the hardship of forfeiture.[41] The likely outcome of any application for exclusion remained so uncertain that it could not be predicted, even at the time of appeal.[42]

Onus of proof that forfeiture is a mitigating factor - identifying the penal element

**29 An offender who relies on forfeiture (whether it has occurred or is anticipated) as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded. Where lawfully acquired property has been used in the commission of the crime and is "tainted" property, the punitive element in its forfeiture must be sufficiently identified for the sentencing judge. How much of it was lawfully acquired, the offender's interest in the property and the extent to which it was used to facilitate the commission of the crime may all require proof.

30 The sentencing judge is not required to speculate as to whether, or to what extent, the property in question was lawfully acquired or, alternatively, represented profit which the offender derived from his activities.[43] It is for the offender to present "credible material" identifying the source of the property, so as to permit the sentencing judge to form a positive conclusion that at least some substantial portion**

of the property has been lawfully acquired.[44] Likewise, where an offender seeks to rely[45] in mitigation upon the loss of "benefits in excess of profits derived from the commission of the offence", the offender must produce evidence to enable a positive determination to be made on the balance of probabilities.

31 Axiomatically, an appellate court may not intervene merely because events which have occurred since the imposition of sentence[46] make the sentence passed appear excessive.[47] Evidence of subsequent events is admissible only to show the true significance of facts in existence at the time of sentence.[48] It is not the function of an appellate court to supervise the consequences of imprisonment for an individual. Such matters call for the exercise of administrative powers, which reside in the hands of executive government.[49]

The present appeal: fresh evidence admissible

**32 In the present case, no sentencing error has been established. There was no adequate evidentiary basis upon which the sentencing judge could have assessed either the likely outcome of the exclusion application or the punitive effect of any forfeiture which might result. The administration of justice would not be well served were a sentencing judge required to speculate as to likely forfeiture and/or its punitive component. The sentencing judge was correct to adopt the course which he did. It accorded with the principle as expressed in Tabone.

33 The remaining question is whether the evidence tendered by the appellant on this appeal, concerning the settlement reached with the Director over the forfeiture of his property, is admissible as fresh evidence. On the basis of the established principles, we consider that the material does constitute fresh evidence.

34 The appellant's property was, at the time of sentencing, subject to a restraining order. An application for exclusion had been made but had not been determined. As he had committed an offence listed in Schedule 2 of the Act, the property was subject to automatic forfeiture to the Crown under s 35 unless an exclusion order was made. Thus, the appellant's property was at the time of sentence exposed to the risk of forfeiture. That is, he was exposed to the risk of an additional penalty, but a risk which could not be quantified.

35 Evidence as to the subsequent settlement of the exclusion application and the making of the forfeiture order threw new light on that matter. The situation is analogous to that of an offender who at the time of sentence is awaiting the results of medical tests,[50] or is awaiting a determination by the Parole Board as to the cancellation of his/her parole.[51] In Tezer this Court permitted fresh evidence relating both to the acquisition of an asset the subject of a restraining order and to the appellant's intention to make application for exclusion of that asset from the order.[52]

36 The Director contended that the appellant could not rely upon the outcome of the exclusion application, first because he failed to place before the sentencing judge evidence which he could have obtained by the exercise of reasonable diligence as to the likely result of the exclusion application. This point may be disposed of shortly. The evidence relating to the terms of settlement could not have been obtained for the plea hearing. The material simply did not exist at that time.

37 It is therefore unnecessary to decide whether evidence may be viewed as "fresh" if it relates to facts the existence of which was known to the appellant or his advisers and could with reasonable diligence have been obtained at the proper time.[53] Suffice it to say that the principle limiting "fresh evidence" to facts which could have been discovered by diligent inquiry - a principle relied upon in appeals against conviction - is of doubtful application to a sentence appeal.

38 The Director argued, secondly, that the appellant should have pursued the application for exclusion before being sentenced and that, having failed to do so, he could no longer rely upon the outcome of the subsequent exclusion proceedings. This argument is also without substance. The Act contemplates that an exclusion order may be made before, at the time of or after sentence has been imposed. The appellant was not obliged to bring the exclusion application to a conclusion before he was sentenced. Nor did the prosecutor so submit at the time of sentence. It was quite inappropriate for this submission to be advanced for the first time on appeal.

39 Of course, it would have been preferable for the exclusion application to have been heard and determined prior to, or at the same time as, the hearing of the plea in mitigation. Sentencing judges should encourage such a course wherever possible. But where it is not possible, the offender is still entitled to rely upon its likely outcome as a relevant matter.**

**40 It is, in our view, unsatisfactory for the impact of subsequent forfeiture to be left to be dealt with by this Court. Subsequent forfeiture is not a true appeal ground, precisely because the sentencing Judge could not have known what the appeal court subsequently learns about the forfeiture. The need to take account of the new information about forfeiture means that in every such case this court is required to act effectively as the primary sentencing court, which is not appropriate.

41 Moreover, the need to satisfy the "new evidence" requirement in this Court may be productive of injustice. It may be that, in a particular case, forfeiture occurs after sentence but cannot be treated as "new evidence". It is impossible to envisage all of the circumstances in which forfeiture may be pursued after conviction and sentence.

42 In our view, the proper approach, where forfeiture occurs after sentence and has not been able to be adequately taken into account at the time of sentencing, is for the sentenced person to have the right to apply to the sentencing judge (or another judge of the sentencing court, if the sentencing judge is unavailable) for a review of the sentence in the light of the subsequent forfeiture. This would ensure that every case of subsequent forfeiture could be considered on its merits, by the judge (or at least the court) which imposed the original sentence.

43 Legislative change would be required to enable this procedure to be adopted. Given the frequency with which forfeiture occurs, we recommend that this be done as a matter of urgency.**

**44 Once fresh evidence is admitted, it is no longer a question of whether the sentencing judge has erred but it is for this Court to determine whether on the entirety of the material a different sentence should be substituted for that passed by the sentencing judge.[54] The same principle is applied by the New South Wales Court of Criminal Appeal.[55]

45 In this case the family home was subject to forfeiture because the appellant had between 1 December 2004 and 18 March 2005 used the house to facilitate his trafficking. Even if the proceeds of his unlawful activity were utilised to make mortgage payments, the majority of the payment made to the Crown by way of settlement should be viewed as a forfeiture of lawfully-acquired property. The settlement avoided the worst possible result for the appellant; the loss of his home. But the payment of $36 555[56] is a considerable financial burden. It represents a substantial penalty arising from the forfeiture of his lawfully-acquired property. As noted earlier, this payment was in addition to the $31 500 in cash forfeited to the Crown as the proceeds of crime.

46 The appellant filed further material relating to his rehabilitation since he has been serving his sentence. The evidence was impressive. It included numerous character references; certificates and applications evidencing the appellant's willingness to participate in rehabilitative programs; and a letter from the Acting Operations Manager at Fulham Correctional Centre. The appellant has responded well to his period in custody, moving relatively quickly into minimum security accommodation and displaying a sound work ethic. He has participated in a range of rehabilitative, work and volunteer programs. He enjoys support from family and friends and has good prospects for employment upon his release.

47 Taking these matters into account, we would vary the sentence on the first count and otherwise impose the same sentences on the other counts and charges but would make no order for cumulation of the sentence in relation to the summary charge concerning the possession of the proceeds of crime. The sentencing judge had found that offence was closely connected to the two trafficking counts and that the proceeds were derived from the sale of drugs.

48 The appellant should be re-sentenced as follows:**

On the summary charge of possessing $30 671 reasonably suspected of being proceeds of crime - six months' imprisonment.

On the summary charge of driving a vehicle during a period of disqualification - one month imprisonment to be served cumulatively upon the sentence imposed on Count 1.

**49 The total effective sentence would therefore be two years and ten months. We would fix a non parole period of one year and nine months before the appellant is eligible for parole. We would affirm the other orders made by the sentencing judge.

[1] In these reasons, "forfeiture" is used compendiously to refer to the various sanctions which can be imposed by or under the Act, including pecuniary penalties.

[2] Section 35(1) Confiscation Act 1997.

[7] Having regard to the decision in R v Yacoub [2006] VSCA 203, [17] and the cases therein cited.

[8] Section 5(2A)(ab) of the Sentencing Act 1991 only allows the Court to take the automatic forfeiture of property into account where it is satisfied that the property was lawfully acquired.

[10] Citing R v Dorning (1981) 27 SASR 481, 485.

[11] Fox and Freiberg "Forfeiture Confiscation and Sentencing" in Fisse, Fraser and Coss (eds) The Money Trail (Law Book, 1992), 106, 136.

[12] R v Campbell and Greig [1999] VSCA 177; (1999) 109 A Crim R 174, [37] (Tadgell JA).

[13] R v Brough (1994) 12 CRNZ 634, 639.

[14] Burrows, Finn and Todd, "The Law of Contract in New Zealand" (Butterworths, 1997), 22; M Hinton, "Are Drug Trafficking Confiscation Orders Punitive?" (1992) 136 Solicitor's Journal 1264; Fried "Rationalising Criminal Forfeiture" (1988) 79 Journal of Criminal Law and Criminology, 328, 358.

[15] R v Allen (1989) 41 A Crim R 51, 57-8; Kardogeros [1991] VicRp 19; [1991] 1 VR 269; McDermott v R (1990) 49 A Crim R 105; Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281; Stocks v R [2000] TASSC 106, [15]; R v Whitnall [1993] FCA 271; (1993) 68 A Crim R 119; R v Purdon (Unreported, NSW Court of Criminal Appeal, 27 March 1997 Hunt CJ at CL, McInerney J and Donovan AJ); Confiscation that counts: A Review of the Proceeds of Crime Act 1987, Australian Law Reform Commission Report 87, 3.43

[17] R v Hoar [1981] HCA 67; (1981) 148 CLR 32 (Gibbs CJ, Mason, Aickin and Brennan JJ).

[18] R v Tiler [1998] 2 VR 194; R v Sergi, unreported CCA (Vic) 23/11/89; Macri v The State of Western Australia [2006] WASCA 63; Urbano v The State of Western Australia [2006] WASCA 147; Borbil v The State of Western Australia [2007] WASCA 24.

[19] See Black v R (1997) 15 CRNZ 278; Solicitor-General v Wong (1997) 14 CRNZ 624; Mada v The Queen [2003] WASCA 1, 168; R v Carpentieri (2001) 81 SASR 164, 170-3; R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152; New South Wales Crime Commission v Farah [2003] NSWSC 1026; (2003) 142 A Crim R 108; Whisson v Mead [2006] SASC 195; R v Errigo [2005] SASC 322.

[20] R v Errigo [2005] SASC 322 [44] (Doyle CJ); John Thornton "The Objectives and Expectations of Confiscation and Forfeiture Legislation in Australia - An Overview" (1994) 1 Canb LR 43.

[21] Where the offender has by an order for forfeiture lost his lawful savings which he had invested in a criminal enterprise, the offender has been treated as having taken the risk involved in the investment of money in such circumstances and that its loss was no more than he deserved for embarking upon the enterprise: Gee v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, White and Bollen JJ, 16 December 1998); R v Kalache [2000] NSWCCA 2; (2000) 111 ACR 152, [72] (Sully J).

[22] R v Brough [1995] 1 NZLR 419, 640; R v Stafford (1997) 97 A Crim R 85, 91 (Myles CJ); McDermott v R (1990) 49 A Crim R 105; Allen (1989) 41 A Crim R 51, 57; Pastras (1993) 65 A Crim R 584, 592; R v Thomas [1991] VicRp 60; [1991] 2 VR 207, 208-9; R v Wignall (1992) 61 A Crim R 54; R v Campbell and Greig [1999] VSCA 177; (1999) 109 A Crim R 174, [40] (Tadgell JA).

[23] Crimes (Confiscation of Profits) (Amendment) Bill, Second Reading Speech, 10 October 1991, 1153-4.

[25] Section 5(2A)(a); s 5(2A)(ab); s 5(2A)(c).

[26] R v El Cheikh [2004] VSCA 146 [12] (Vincent JA).

[27] R v Nguyen [2007] VSCA 165, [23]-[24] (Neave JA).

[29] Solicitor-General v Sanders (1994) 2 HRNZ 24, 31-2; R v Rintel [1990] 3 WAR 527, 531; R v Lister [1982] 4 Cr App R (S) 331; R v Carpentieri (2001) 81 SASR 164, 170-3 (Doyle CJ); R v Nguyen [2004] SASC 405.

[30] Fox and Freiberg, above n 12, 6.402-6.403 (emphasis added).

[33] [2004] VSCA 203, [13]. See also [46] from below.

[35] [2006] VSCA 203. The decision was not the subject of reference in R v Tabone.

[36] Ibid, [17] citing R v Do, DPP v Phillips and R v Le.

[41] Ibid, [25] (Habersberger AJA with whom Maxwell P and Eames JA agreed).

[43] Macri v State of Western Australia [2006] WASCA 63, [9] (Wheeler JA).

[44] R v El Cheikh [2004] VSCA 146, [13]-[14] (Vincent JA), [17]-[18] (Batt JA); Kirby v The Queen [2003] WASCA 164; Sinagra-Brisca v The Queen [2004] WASCA 68; Urbano v The State of Western Australia [2006] WASCA 147 (Pullen JA).

[45] Reliance is placed upon s 5(2A)(c) of the Sentencing Act 1991.

[47] R v Babic [1998] 2 VR 79 ; R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451, [34] (O'Bryan AJA); R v Selcuk [2007] VSCA 143, [60] (Neave JA).

[48] R v Eliasen (1991) 53 A Crim R 391; R v Rostom [1996] VicRp 60; [1996] 2 VR 97; R v Pividor and Dale [2002] VSCA 174; R v Williams [2005] VSCA 274; R v SH [2006] VSCA 83, [25]; R v Ahmed [2006] VSCA 200.

[49] R v Vachalec (1981) 1 NSWLR 351 (Street CJ); R v Williams [2005] VSCA 274.

[50] R v Eliason (1991) 53 A Crim R 391; R v Orbach [2007] VSCA 166, [40]

[51] R v Alashkar and R v Tayar [2007] VSCA 182.

[52] R v Knights (1993) 70 A Crim R 105, 110 (Crockett J) and R v Duy Duc Nguyen [2006] VSCA 184, [36] (Redlich JA) were cited in support of this conclusion.

[53] See, for example, Vasquez-Felipe v The Queen [2006] NSWCCA 411; (2006) 167 A Crim R 321, 325 [20] (Bar J).

[56] Comprising the money in the frozen bank account and the amount of the negotiated settlement.

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