HEARING DATE/S: 20, 22, 23, 26, 27, 28, 29 April, 3, 4, 5, 6, 7, 11, 12, 13, 14,

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Orders for compensation, reparation, restitution, forfeiture and other matters relating to disposal of property - Forfeiture or confiscation - Pecuniary penalty order - Whether part of sentence - Effect of pecuniary penalty order on sentence.

Crime (Confiscation of Profits) Act 1993 (Tas), ss4, 16, 20, 21 and 22.

Sentencing Act 1991 (Vic), s5(2A)(c).

R v Hoar [1981] HCA 67; (1981) 148 CLR 32; Allen v R (1989) 41 A Crim R 51; Tsolacos v R (1995) 81 A Crim R 434; Pastras v R (1993) 65 A Crim R 584; McDermott v R (1990) 49 A Crim R 105; Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281; Araya and Joannes v R (1992) 63 A Crim R 123; R v Anderson (1992) 61 A Crim R 382, considered.

R v Brough [1995] 1 NZLR 419; R v Fagher (1989) 16 NSWLR 67; Pepin v R (1996) 86 A Crim R 327, followed.

Judgment Number: [1999] TASSC 73

1 Geoffrey Ian Thorley has been found guilty of the crime of trafficking in the prohibited plant Indian hemp. The following findings, consistent with the verdict of the jury, are made in relation to the determination of penalty.

2 In January 1995, Mr Thorley was involved with another person in the acquisition of a commercial property in Hobart intended to be used for the cultivation of Indian hemp. Between January 1995 and February 1997, he was involved in the commercial operation of three premises, with at least three other persons, which produced substantial quantities of cannabis. The offender provided capital, equipment and expertise. He received a significant commercial return which, on a conservative estimate, exceeded $200,000. The operation at Wellington Street produced, at its zenith, between 100 to 150 plants per week and evidence given on the trial suggested that the premises at Charles Street contained some 800 plants at the time of discovery. The cannabis was dried, packaged and sold for $275 per ounce. The operations were sophisticated and commercial in nature.

3 The course of conduct was commercial in nature and prolonged. The range of penalties applicable to such conduct has been considered by the Court of Criminal Appeal in Vergos v R A89/1996 and Dunford v R A10/1995, and the relevant principles discussed in R v Michieletto A45/1995. In this case, the offender is not entitled to the mitigatory matters afforded by co-operation and early plea. A co-offender, Ewings, who played a different role in the operation and who provided no capital, has received a sentence of three years' imprisonment. That sentence reflected a significant allowance for co-operation and early plea. Given the different roles played by the respective offenders and the particular mitigating matters taken into account in the sentencing of Ewings, little regard is had for the principle of parity, except to note that the sentence of three years' imprisonment represents a significant discount for co-operation and the different role played by Ewings. The penalty range in a case of this nature is a sentence of imprisonment of between five and seven years.

4 The offender is married with young children. He has successfully operated a business for some years, although it is relevant that the capital and stock of that business were used in the commission of this crime. Much of the equipment used in the growing of the Indian hemp was provided by the business and the cost of these inputs recouped from the sale of cannabis. The offender has no previous convictions. The crime was committed for personal gain. The subjective circumstances of the offender are outweighed by the need to impose a substantial penalty as a statement by the community that the commercial production and distribution of drugs is unacceptable.

5 The sentence does, however, reflect the fact that the drug trafficked was cannabis and not heroin, amphetamine or some other similar substance.

6 The Crown has made application for the imposition of a pecuniary penalty order calculated on the proceeds said to have been derived from the illegal operation in accordance with the Crime (Confiscation of Profits) Act 1993 ("the Act"), s11. On the basis of documentation located at two premises, the value of the proceeds derived by Geoffrey Ian Thorley from the operations could be assessed in the sum of $191,228. That figure represents the offender's share of sales of Indian hemp from the Charlotte Street and Wellington Street premises over an identified period. It does not take into account any moneys derived from the Charles Street operation, nor those derived from Wellington Street before the involvement of Ewings. As such, it represents a conservative assessment. The Act, s22(6) provides:

"In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded."

7 Given that there was evidence that Mr Thorley expended moneys for the establishment and maintenance of the operation, the pecuniary penalty order represents proceeds rather than profits and does not reflect the fact that not all of the proceeds would have been appropriated for the personal benefit of the offender. An issue which arises, therefore, is whether the making of a pecuniary penalty order represents an additional sanction, or whether its imposition is to be disregarded in the determination of penalty.

8 The Preamble to the Act states that the legislation is:

" ... to provide for the confiscation of the proceeds of crime and the forfeiture of property in certain circumstances, for the reciprocal enforcement of certain Australian legislation relating to the confiscation of the proceeds of crime and the forfeiture of property and for related purposes."

This statement of purpose and an intuitive approach to the legislation would suggest that the making of a pecuniary penalty order ought not be taken into account in the determination of the sentence or other penalty. In other words, that the two questions are disjunctive. However, the principle is that a statute which affects the status or rights of a citizen ought be construed strictly (Scott v Cawsey [1907] HCA 80; (1908) 5 CLR 132; Smith v Corrective Services Commissioner of New South Wales (1980 - [1980] HCA 49; 1981) 33 ALR 25) should always be borne in mind.

9 The scheme of the legislation is common (with some differences) to jurisdictions within Australia (both state and federal) and New Zealand, and cases decided in those jurisdictions suggest that a simple disjunctive approach has not been applied.

10 The Act, s4, provides for the making of a "confiscation order", which is defined as meaning:

" ... a forfeiture order or a pecuniary penalty order; ..."

Forfeiture orders are dealt with in the Act, Div 2 and relate to property which is tainted "in relation to the offence". Section 16 provides:

"(2) In considering whether to make a forfeiture order a court is, having regard to the information before it, to consider -

(a) the use that is ordinarily made, or was intended to be made, of the property; and

(b) any hardship that is likely to be caused to any person by making the order.

(3) In considering any hardship that is likely to be caused to a person convicted of a serious offence by the making of a forfeiture order, a court is not to take into account the sentence imposed for the offence."

11 Given that forfeiture can involve the confiscation of property valued far in excess of the amount of proceeds of the crime, the statutory provision requiring that consideration be given to hardship is consistent with the purpose of the legislation. Sub-section (3) confines the question of "hardship" to the effect of the taking of the property of the offender or others such as family or commercial associates. The Act, s18, permits a person claiming an interest in the property to make application to preserve such interest from forfeiture.

12 The procedures and principles governing the imposition of "pecuniary penalty" orders are dealt with in a separate Division. Division 3, by virtue of s20, applies to:

"(a) property that comes into the possession or under the control of a person, whether in Tasmania or elsewhere and whether before or after the commencement day; and

(b) benefits, including commercial benefits, that are provided to a person, whether in Tasmania or elsewhere and whether before or after the commencement day."

The Court may, by virtue of s21(2), pay regard to an existing forfeiture order already imposed or imposed in another jurisdiction, or one which is proposed and the order might be increased where an anticipated forfeiture order has not eventuated (s21(3)). That power of variation which is limited to an increase is, given the circumstances of this case, a complication. The Court has been informed that there will be an application for forfeiture, but this cannot be made until the conclusion of proceedings against an alleged co-offender. If such an order is made, there is no power to reduce the amount of the pecuniary penalty order to take into account the value of the property forfeited. Yet, as presently advised, the Court has no information as to the anticipated value of the property to be forfeited. The provisions of the Act, s22(2) and (3), do suggest that forfeiture, which relates to identifiable property, governs the assessment of a pecuniary penalty relating to proceeds which cannot be "traced" into specific or identifiable property. If such be the case, then the concept of "pecuniary penalty" is akin to forfeiture, although the methodology of assessment and identification differs. It is significant that the Act, Div 3, makes no provision for the consideration of hardship and assessment of pecuniary penalty orders is made by reference to defined statutory methods. The amount once assessed is, by virtue of s21(4):

" ... for all purposes, taken to be a civil debt due by that person to the State."

"A pecuniary penalty order made by a court under this section may be enforced as if it were an order made by the court in civil proceedings instituted by the State against that person to recover a debt due by that person to the State and the debt arising from the order is taken to be a judgment debt."

14 The second reading speech of the Minister, recourse to which is permitted by the Acts Interpretation Act 1931 (Tas), s8B(1)(3)(f), does not assist. The Minister stated (Hansard, 31 March 1993 at 1136):

"The second type of confiscation order is a pecuniary penalty order. This order requires the court to assess the benefit which the offender derived directly or indirectly from the commission of the offence, assigning a monetary value to the benefit and making a pecuniary penalty order equal to that amount. Once such an order has been made, it can be enforced as a civil debt in the ordinary way.

In order to assist the court in arriving at the appropriate penalty amount to be ordered, the bill outlines a number of matters that the court is to take into account in assessing the benefits derived. In addition, the bill contains a presumption that, unless the defendant satisfies the court to the contrary, any increase in the defendant's property that occurred after the offence or offences, if more than one is involved, will be treated as benefits derived from the commission of the offence or offences for assessment purposes."

15 On the basis of a textual analysis of the legislation, it would appear that:

(1) A pecuniary penalty order is a form of forfeiture calculated by a different methodology.

(2) Forfeiture (strictly defined) might result in the loss of property far in excess of or disproportionate to the value of the proceeds or benefits of crime.

(3) In a case involving forfeiture (strictly defined), it is permissible for the court to take into account hardship because of potential disproportion and the effect on other innocent parties.

(4) Hardship arising from the imposition of penalty is precluded as a relevant factor.

(5) A pecuniary penalty order is a civil debt, personal in nature, and cannot impact on the property of others.

(6) Hardship is not a factor relevant to the making of a "pecuniary penalty" order.

(7) There is no interrelationship between the making of a "pecuniary penalty" order and any penalty determined in accordance with the principles of sentencing.

That approach does not accord with that taken by courts in other jurisdictions. In Victoria, the courts have paid regard to the effects of both forfeiture and pecuniary penalty orders (Allen v R (1989) 41 A Crim R 51; Tsolacos v R (1995) 81 A Crim R 434; Pastras v R (1993) 65 A Crim R 584). However, the Victorian courts were dealing with the provisions of the Crime (Confiscation of Profits) Act 1986 (Vic) which, in 1991, was amended so as to insert a new provision in the Sentencing Act 1991 (Vic) which provided:

(a) may have regard to a forfeiture order made under the Crimes (Confiscation of Profits) Act 1986 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, 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, 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.

(2B) Nothing in sub-section (2A) prevents a court from having regard to a confiscation order made under the Crimes (Confiscation of Profits) Act 1986 as an indication of remorse or co-operation with the authorities on the part of the offender."

16 In Allen (supra), which was decided before the amendment, Young CJ, Murphy and O'Bryan JJ determined, at 56, that confiscation orders (which included both a forfeiture order and a pecuniary penalty order) were:

" ... clearly intended to be part of the retribution exacted from offenders on behalf of the community."

They decided thus because of the paradox arising through the capacity of the court to defer sentence until the determination of an application for a confiscation order. They observed at 56 - 57:

"It is clear that a judge when sentencing a person convicted of a serious crime cannot take into account an application for a confiscation order which has not yet been determined. Indeed, the application need not be made before the offender is sentenced, ..."

and concluded that in the light of the power to defer sentence, at 57:

"It is difficult to be sure what the Legislature has in mind when it states 'the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the confiscation order'. [Emphasis added.] It may be simply an empowering provision or it may be that the Legislature contemplates that the court may think it 'necessary' to know what sort of confiscation order is to be made before fixing an appropriate sentence for the offence.

It is commonplace, when sentencing, to take into consideration the value of any goods stolen or destroyed - and not recovered from the offender. Similarly, the courts invariably take into consideration the fact that an offender has returned goods or money stolen or has made some other form of recompense. Often this is seen, of course, as evidence of remorse, but apart altogether from remorse it is a relevant circumstance when determining the sentence appropriate to the crime.

This being so, although an offender may be sentenced before an application for a confiscation order is made, then if at the time of sentencing it is apparent that the profits of the crime are confiscated, it is appropriate to bear that circumstance in mind when sentencing the offender."

17 They further stated that the weight to be attached to the making of a confiscation order might have little weight in the determination of penalty, but restated their conclusion at 58 that:

"The scope of the Crimes (Confiscation of Profits) Act is so wide that there must be circumstances where the mere making of a confiscation order will be seen to effect some punishment for the crime in addition to the removal of ill-gotten gains from the offender."

18 Their Honours made no distinction between a forfeiture and a pecuniary penalty order, using instead the comprehensive term "confiscation order". Similarly, the Tasmanian legislation provides that the term confiscation order encompasses both forfeiture and pecuniary penalty.

19 It may well be that the decision in Allen gave rise to the 1991 amendment to the Sentencing Act (Vic), s5. The decision in Allen was followed by the Court of Criminal Appeal of Western Australia in Wignall (1992) 61 A Crim R 54, although that case involved the forfeiture of moneys given to police officers in an attempt at bribery. Subsequent to that decision, there was legislative reversal of the principle in South Australia (Crimes (Confiscation of Profits) Act 1986 (SA), s3(a)) and Queensland (Crimes (Confiscation of Profits) Act 1989 (Qld), s71), although these Acts have been subsequently amended.

20 The decision in Allen was followed by appellate courts, differently constituted in Pastras v R (supra) and Tsolacos v R (supra). However, in Tsolacos, the court had regard to the provision of the Sentencing Act, s5(2A)(c). In following Allen, both courts approved of the decision of the Full Court of the Federal Court in McDermott v R (1990) 49 A Crim R 105, a decision not dependent upon the Victorian amendment. In that decision, Gallop J followed Allen and concluded at 117:

"In my opinion the trial judge should have taken into account the pecuniary penalty order which he made at the time of sentencing the appellant. That fact was a relevant consideration. It was, after all, an order for payment of a substantial sum of money."

In the same judgment, Neaves J, although he approved of Allen, said of the primary judge's statement, at 119:

"However, after taking all those factors [capacity, effect on others and willingness to enforce] into consideration, I come to the conclusion that the pecuniary penalty order in this case is not to be regarded as an additional punishment, but simply the recovery of the proceeds of the offences for which McDermott has been convicted or as was said in Allen's case, the removal of illgotten gains.

In my opinion, his Honour was entitled to take the view of the matter which he did. He was certainly not bound to do otherwise."

21 His Honour did not elaborate upon the reasoning giving rise to his conclusion. It would appear to be based on pragmatism. If the pecuniary penalty is likely to have a real rather than a potential impact, then it is to be regarded as being relevant to penalty. A differently constituted bench of the Full Court of the Federal Court followed McDermott in Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281, and, having observed that a different approach had been taken by other courts, concluded at 287:

"Nevertheless, this Court should continue to follow McDermott and in doing so make the observation that there is nothing in McDermott to contradict the proposition that the extent to which a pecuniary penalty order should affect a sentence will depend on the circumstances. Where the pecuniary penalty order is not likely to have any impact upon the offender or his assets, it might have little or no impact upon the sentence."

Tapper and McDermott were followed by the Full Court of the Federal Court in Whitnall v R [1993] FCA 271; (1993) 68 A Crim R 119.

22 With due respect, the test of impact, whilst logical, gives rise to a paradox. If two offenders derive equal benefits from the proceeds of a joint enterprise, and one dissipates his gains, whilst the other preserves them, there could be disparate sentences because the impact of a pecuniary penalty would be different. An order against a bankrupt would be, in the short term, of little moment, yet against the person with assets, one of significance. In those circumstances, the "grasshopper" who had enjoyed the gains would receive a longer sentence than the "ant" who had hoarded and accumulated capital. Yet both had, in different forms, enjoyed the proceeds of the joint enterprise.

23 The question has been considered in New South Wales. In dealing with the issue of whether a confiscation order made subsequent to the imposition of penalty could be received as fresh evidence, Carruthers J (with whom Gleeson CJ agreed) stated in Araya and Joannes v R (1992) 63 A Crim R 123 at 128:

"May I say, however, that the question of whether, and to what extent, a sentencing judge may take into account the confiscation of property under the relevant legislation raises nice and difficult issues, which should await adjudication by this Court in an appropriate case."

In the earlier decision of the same court of R v Fagher (1989) 16 NSWLR 67, Roden J observed at 71:

"The object of the provision is to prevent offenders from enjoying the proceeds of their crimes. This is clear from the use of the term 'benefits' in the subsection, and is confirmed by the title and short title of the Act, and indeed by the Minister's Second Reading Speech (from which it is unnecessary to quote) when the measure was presented to Parliament. The fact that the Act is directed towards preventing the retention of ill-gotten gains, rather than the imposition of a punishment, will be of importance when consideration is later given to the reasons for the District Court's refusal of an order for a pecuniary penalty."

24 In Pepin v R (1996) 86 A Crim R 327, Hunt CJ, who had been a member of the court in Fagher (supra) stated at 328:

"I do, however, maintain the view which I expressed in Fargher (1989) 16 NSWLR 67 at 78, that hardship is an irrelevant consideration in deciding whether to impose a pecuniary penalty. But, as Smart J has pointed out, that issue does not arise in this case. It remains yet to be determined."

In the same case, Smart J referred to the differing views of the court in Fagher in the following terms at 333 - 334:

"In Fargher the Court of Criminal Appeal was divided on the relevance of hardship. Roden J thought that hardship could be a relevant consideration. Hunt J was unable to see how hardship could be a relevant consideration in deciding whether to impose a pecuniary penalty. He was much influenced by hardship having to be considered under s 18 and no mention of it in s 24. Allen J thought that no question of substantial hardship arose and that the question of whether such substantial hardship was relevant was better left to be determined when, if ever, a case occurs in which such hardship is demonstrated.

I can envisage cases of exceptional hardship where a court might pause. Assume a father who was on an invalid pension with no assets (apart from a little cheap furniture) living in a housing commission flat stole $5,000 and used it to buy medicines and special food for a very sick child. Would a court make a pecuniary penalty order in those circumstances?"

25 Acceptance of the approach taken by Smart J would not involve the taking into account of the sentence imposed on the offender. The relevance of hardship would be referable to the capacity for payment. That factor would govern, not the sentence, but the discretion of the Court in imposing a pecuniary penalty at all.

26 The New South Wales Law Reform Commission in its report (Discussion Paper 33 Sentencing April 1996, at 10.55) did not favour the integration of confiscation into the sentencing process for the reasons that:

"It is by no means obvious how the imposition of either a forfeiture order or a pecuniary penalty order, both of which are aimed at the disgorgement of gains, is to be justified within the traditional objectives of punishment. For example, what is the relevance of rehabilitation to the making of such an order? Further, how is proportionality to apply to the imposition of such an order if it is clear that the legislature intends confiscation in addition to (other) punishment?

Confiscation proceedings will, for practical reasons, generally have to be considered independently of the sentencing hearing, and usually after it. Procedurally, this will create difficulties for the sentencing process. For example, how will the totality principle be applied at the sentencing hearing when the confiscation proceedings are still to be determined?"

27 In R v Hoar [1981] HCA 67; (1981) 148 CLR 32, the High Court regarded the impact of forfeiture as being relevant to sentence, notwithstanding a statutory provision that "forfeiture shall be in addition to and not a part of a penalty". Gibbs CJ, Mason, Aickin and Brennan JJ stated at 39:

"Had forfeiture been authorized by the Act, the Chief Justice would have been entitled to take its impact on Hoar into account in assessing the penalty to be imposed on him, despite the provision under s 48 (2) that forfeiture 'shall be in addition to and not a part of a penalty'."

But forfeiture can involve loss of property far greater than the benefit received and its effect may be disproportionate. A pecuniary penalty differs in that its quantum is governed by the proceeds received.

28 The differences in approach and the legislative reversals of judicial interpretations show a tension between the legislative statement that the proceedings are civil in nature and the requirement that the order may only be made upon conviction for a criminal offence (see Criminal Confiscation, Profit and Liberty, Freiberg (1992) 25 ANZJ Crim 44). In his paper, the learned author concluded at 69 - 70:

"It is obvious to me that the modern forfeiture and confiscation orders have a closer affinity to the law of sentencing than to the civil law of remedies. It has become increasingly apparent that the traditional, but ill-defined, division between civil and criminal is inadequate to explain why the effect of one set of measures should be ignored in allocating sanctions for the same misconduct, particularly when each of the measures inures for the benefit of public coffers, or the public good. The civil and criminal labels tell only the form of process employed without describing the character of the sanction inflicted. That a suit is labelled civil does not imply that it does not impose punishment."

29 The tension was recognised by Fisse (Confiscation of Proceeds of Crime (1992) 16 Crim LJ 138), where he stated at 139:

"The inter-relationship between the impact of sentence and the impact of forfeiture is a vexed and recurrent issue. The courts have struggled to give effect to the legislative intention that forfeiture be a penalty additional to the normal sentence and yet to avoid inflicting excessive cumulative punishment. The trend has been to ensure that the impact of forfeiture is 'proportionate' but the nature and effect of this limiting principle remain problematic."

30 The question of proportionality may be relevant if it is regarded when assessing the quantum of a pecuniary penalty order or forfeiture order by reference to the punishment already inflicted by means of sentence (R v Kardogeros [1991] VicRp 19; [1991] 1 VR 269). But such is precluded in Tasmania in relation to forfeiture by the Act, s16(3). There is no such legislative prohibition in relation to pecuniary penalty orders and given that the power afforded by s21 is discretionary, there may be reason to decline to make any order if its making is disproportionate to the nature or offence committed and/or the penalty already exacted. But if the Court decides to make such an order then the method of assessment is mandatory and there is no power to reduce the quantum because of that penalty. To that limited extent there might be an interrelationship between a pecuniary penalty order and sentence but not otherwise. The converse that the sentence might be reduced because of the making of a pecuniary penalty order is not permitted by the legislation.

31 The Court of Appeal of New Zealand attempted to reconcile the competing principles in R v Brough [1995] 1 NZLR 419, when, in considering comparable legislation and the Victorian decision of Allen and Pastras, Tompkins J stated at 425:

"It is our conclusion, having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional affect on the offender, sufficient for some regard to be had to it when imposing sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of an offence, should have any relevance to an appropriate sentence. These reflect the offender's ill-gotten gains which, in accordance with the policy of the Act, and irrespective of sentencing for offences, the offender should be required to disgorge."

32 If I am wrong in my conclusion that the Act, Div 3, has no application to the determination of sentence, then I would adopt the last sentence quoted above. In this case, the offender benefited by the sale of equipment through his business and, together with his wife, acquired ownership of the Wellington Street premises which were used for the cultivation of cannabis. Leaving aside the issue of forfeiture, those premises acquired by the offender are of significant value, and a penalty order, if made from the proceeds of sale, ought not impact on the sentence.

33 There is unfairness in the effect of the Act, s22(6). The sub-section requires the Court to exclude from the calculation of benefits obtained "any expenses or outgoings of the person in connection with the commission of the offence." The effect of a similar provision has been considered by the High Court in R v Smithers; Ex parte McMillan [1982] HCA 76; (1982) 152 CLR 477 and the Federal Court in Commissioner of Federal Police v Curran (1984) 14 A Crim R 434. The effect is punitive and has been described as draconian (R v Galek (1993) 70 A Crim R 252). However, hardship is not a factor which may be taken into account, as it can be in cases of forfeiture. In cases of forfeiture it may be that, absent a restriction by a provision comparable to the Act, s16(3), other jurisdictions are permitted to take into account the effect of sentence in the making of a forfeiture order but not vice versa. That is the approach taken by Williams J in R v Anderson (1992) 61 A Crim R 382 when, in relation to an application for forfeiture of land on which cannabis had been grown, he stated at 389:

"It was not land acquired to any extent through illegal activity on the part of the respondent. He had used it for a number of years prior to the commission of the offences in question as his principal place of residence, and that was the use ordinarily made of the land. Further, for the reasons I have given, I am of the view that forfeiting the property would create hardship of a kind contemplated by s 8(2)(b) of the Act. It is also my view that the sentences imposed constitute adequate penalty for the offences committed and that in the light of those sentences the hardship which the respondent would suffer if a forfeiture order was made would be out of proportion to the gravity of the offences committed."

34 If, absent legislative prohibition, that is the correct approach, then at best the existence of custodial penalty might be relevant to the determination of the amount of a pecuniary penalty order but not vice versa. The Act, s22(6), is inherently punitive, but its effect cannot be used to vary a sentence determined in accordance with existing principles of sentencing.

35 The legislative scheme does not permit a court to take into account the making of a confiscation (pecuniary penalty or forfeiture) order in its determination of sentence. A court is precluded from paying regard to sentence in its determination of hardship in relation to the making of a forfeiture order. A court might pay regard to the nature of the crime and the concept of proportionality in the exercise of its discretion in deciding whether or not it should make a pecuniary penalty order but, having decided to make such an order, it may not reduce the assessment by having regard either to hardship or a penalty already imposed. This conclusion does not fit comfortably with the principles of punishment or judicial discretion. The combined effect can often be unfair to a convicted offender and there is a need to make the legislation more flexible and adaptable to the particular circumstances of the offender and the crime or offence for which that person is convicted. But such is the responsibility of Parliament, not the court.

36 The Court has been advised that an application will be made for forfeiture of property pursuant to the Act, Div 2. It may well be that the premises owned by Mr Thorley and his wife, and used for the growing of the hemp, will be the subject of that application. Counsel for the Crown advised that the Court ought make a pecuniary penalty order for the full amount assessed and that the value of any future forfeiture order could be deducted from the amount of the pecuniary penalty order. The question as stated by counsel would become one of allocation and payment only. The Act, s21(3), only permits an increase in the amount of a pecuniary penalty order in the event that an anticipated forfeiture order is not made. Although the Court has assessed the amount of the proceeds of the operation received by Mr Thorley, no order will be made.

37 No regard is had to the impact of an anticipated forfeiture or pecuniary penalty order. Given the scale of the operation, a substantial sentence is appropriate. Making allowance for the previous good character of the offender, the sentence is a term of imprisonment for a period of five years.

38 Given the length of the sentence imposed, it is not appropriate to suspend the operation of any portion of the sentence. In this case, the question of parole is best considered by the Parole Board and no non-parole period will be fixed.

39 (1) That Geoffrey Ian Thorley be convicted of the crime of trafficking in a prohibited plant.

(2) That Geoffrey Ian Thorley be sentenced to a term of imprisonment for a period of five years, such sentence to commence as and from 20 May 1999.

The Victims of Crime Compensation levy of $50 is to be paid within three months of the date of release from prison.