The Subjective Matters Personal to the Respondent
20 Only two such matters were put forward by the respondent: first, the respondent's pleas of guilty; and, secondly, the cooperation of the respondent with the New South Wales Crime Commission in connection with action taken by the Commission with respect to the property of the respondent, and pursuant to the relevant provisions of the Criminal Assets Recovery Act 1990 (NSW).
21 As to the respondent's pleas of guilty: It is convenient to begin by noting the relevant provisions of section 439 of the Crimes Act 1900 (NSW), which are:
"439(1) In passing sentence for an offence on a person who pleaded guilty to the offence, a Court must take into account:
(a) The fact that the person pleaded guilty; and
(b) When the person pleaded guilty or indicated an intention to plead guilty,
and may accordingly reduce the sentence that it would otherwise have passed.
(2) A Court which does not, as a result of this section, reduce the sentence that it passes on a person who pleaded guilty to an offence must state that fact and its reasons for not reducing the sentence when passing sentence.
……………………………….."
22 These provisions of section 439 were inserted into the Crimes Act by the Crimes Legislation (Amendment) Act 1990 (NSW). The Attorney-General, moving the Second Reading of the Bill for that Act, made the following statements:
"At present the common law in this State provides that a court when sentencing a person is entitled to, and often will, take into account a plea of guilty as evidence of contrition in imposing a lesser sentence than would otherwise be the case, and other matters, such as recompense, damage suffered, and so on. As former Chief Justice Street said in Regina v Ellis, reported in (1986) 5 New South Wales Law Reports, 603 at page 604:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
Because of the importance of encouraging appropriate guilty pleas, this common law rule will be given statutory force. Therefore, the bill provides that, for all offences and for all courts, the court in sentencing a person who pleaded guilty to an offence must take into account the fact that the person pleaded guilty and when the person either pleaded guilty or indicated an intention to do so, and may reduce the sentence accordingly. It is not mandatory to reduce the sentence. It is a discretion, but a discretion that ought to be exercised on proper sentencing principles.
……………………………………………………………………………………….
There are some cases in which it would be inappropriate to reduce a sentence because of a plea of guilty. It is impossible to predict what sort of cases these will be but one example is where the offence is so serious that it is appropriate for the maximum sentence to be imposed despite a plea of guilty. The amendments therefore give the sentencing court the power to refuse to reduce a sentence. I take it one point further: if the sentence is between, in effect, nothing and the maximum sentence, it is proper for the court to say, where there is clearly no basis for reducing the sentence following a plea of guilty, that a sentence should be imposed which otherwise would have been imposed if the person had been convicted after a plea of not guilty. Thus the court will have a complete discretion with proper discretionary principles applied.
If the court refuses to reduce a sentence it must give reasons for doing so. This reflects the intention of the amendments that a reduction will usually be given. The new provision is not intended to intimidate the bench. The bench has to make such decisions all the time. Reductions will be made in some circumstances and not in others. Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community." [Hansard: NSW Legislative Assembly: 4 April 1990, at 1689, 1690]
23 The way in which, and the limits within which, a sentencing Court should take into account in a prisoner's favour the fact that the prisoner has pleaded guilty, has been the subject of a great deal of curial exposition. In the present respondent's case, that particular factor, being one of only two subjective matters put forward by the respondent in mitigation of penalty, requires a more extended consideration than is often necessary in other, and different types of, cases.
24 It is convenient to begin with the decision of this Court, (constituted by Street CJ, Priestley JA and O'Brien CJ of Cr D), in Reg v Holder; Reg v Johnston [1983] 3 NSWLR 245, a case ante-dating the decision of the Court in Ellis, the case mentioned by the Attorney-General in the Second Reading speech earlier cited. In Holder and Johnston the trial Judge furnished a report for the information and assistance of the Court of Criminal Appeal. The report took note of a submission that had been put to the trial Judge to the effect: "that it was not sufficient for a court in handing down sentence after a plea of guilty to merely refer to the plea having been taken into account, that the sentence itself should necessarily reflect that factor, and that any term of imprisonment imposed should be patently shorter than that which would have been appropriate following a trial".
25 The trial Judge said, in connection with those submissions:
"It seemed to me that there was merit in this submission, particularly in the absence of any suggestion that the pleas of guilty by the offenders had been induced by the laying of charges of a less serious nature. The submission flows from the principle referred to in the well-known passage in Thomas, Sentencing, 2nd ed, at 52. It was my understanding that this principle of substantial reduction for a plea of guilty based on contrition was generally accepted in New South Wales as well as in the other States, at least in relation to head sentences, although the one quarter to one third mathematical calculation made by Thomas would be of little assistance in any particular case.
What I had in mind in assessing the period to be served for the total criminality was that each offender should be given a real and not merely nominal 'discount' for the plea and contrition shown, and that had the convictions followed a trial each offender would have received a head sentence some two to three years longer than that in fact imposed."
26 Priestley JA, with whom O'Brien CJ of Cr D agreed, thought that such approach of the trial Judge had been wrong in law. Priestley JA said:
"The foregoing paragraphs seem to indicate clearly that he accepted the view that he was bound as a matter of sentencing principle to impose a patently shorter term of imprisonment than that which would have been appropriate following a trial. He also appears to have accepted that it would be wrong merely to take that particular factor into account. With due respect, in my opinion the law is otherwise. A sentencing judge is entitled to, and often will, take into account a plea of guilty and evidence of contrition in imposing a lesser sentence than he would otherwise do. There is no statutory provision or relevant authority binding him to do so. The passage in Thomas , Principles of Sentencing, 2nd ed (1979), at 52, referred to by his Honour, although it speaks in terms of "principle", is generalizing from the practice of the English Court of Criminal Appeal. The correct status of the "principle" in England is, in my opinion, set out in Thomas (at 50) where the following citation from a 1974 Court of Criminal Appeal decision appears:
"…… it is a well recognized practice of the courts wherever possible to give some degree of credit in the case of somebody who pleads guilty."
The practice in New South Wales is similar.
In many cases some leniency has been explicitly accorded to a person because of a plea of guilty. However in very many cases appeals against severity of sentence upon a plea of guilty have been dismissed notwithstanding that there has been no reference by the sentencing court to any allowance being made for the plea of guilty (or contrition)……………………………………………
My conclusion therefore is that …..(the trial Judge) ….. felt himself obliged to impose a patently less overall sentence upon Johnston than he otherwise would have done because of what he thought was a rule binding on him, when in law that "rule" was a practice guide which he might or might not act upon according to his sense of its fitness in the circumstances." [3 NSWLR, 268D, 269C]
27 Street CJ, with whom O'Brien CJ of Cr.D agreed, approached the particular point in a somewhat different way. His Honour said:
"It is well established that contrition is in itself a factor weighed in the matter of sentence in favour of accused persons. This is particularly so where the contrition is manifested in a plea of guilty. It is impossible, however, to lay down arbitrary rules regarding the weight to be attributed in any given case to the factor of contrition manifested by a plea of guilty. In examining the extent to which a plea of guilty can take on the colour of contrition, much may depend upon the time and circumstances in which the plea was advanced. To make a commonplace example, a man accused of a sexual offence may make a full and frank admission, coupled with expressions of contrition, to the arresting police at the very outset and, by maintaining that attitude throughout, spare the victim the ordeal both of appearing at committal proceedings and of keeping alive her recollection so that she may be able to give evidence at the trial. Such a man's contrition will weigh more favourably than another, similarly placed so far as concerns the offence, who proffers a plea of guilty for the first time when the indictment is presented against him. Shades of genuineness, too, can affect the extent of the favourable weight attracted by protestations of contrition coupled with a plea of guilty.
It has been said repeatedly in judgments of this Court that guilty persons are to be encouraged to plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty. All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and, for that matter, in the non-parole period also) when proffering a plea of guilty. In order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in the sentence is subsumed under the general category of contrition.
It may be thought that these generalizations provide to sentencing judges little guidance upon the manner and extent to which they should take into account contrition manifested by a plea of guilty. It would, however, in my view, be undesirable to attempt to go further either by way of indicating proportional reductions of the otherwise proper sentence or by any other precise indication. In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court." [3 NSWLR, 258C, 259A]
28 There are, in my opinion, three things to be drawn from the decision in Holder and Johnston.
29 First, the decision has to do with the proper place in the sentencing process of a plea of guilty regarded in the particular sense of a practical manifestation of genuine contrition.
30 Secondly, the decision recognises a sentencing policy or principle to the effect that genuine contrition given practical expression in the form of a plea of guilty is deserving of, and ought normally to be given and seen to be given, real substance as a factor mitigating what would otherwise be the proper sentence in the particular case.
31 Thirdly, that general policy or principle is to be applied in any particular case, either as a "practice guide which ………(the sentencing judge) …….. might or might not act upon according to his sense of its fitness in the circumstances" (Priestley JA and O'Brien CJ of Cr D); or after "evaluation by the sentencing judge in the light of the overall complex of the facts before the court", (Street CJ and O'Brien CJ of Cr D).
32 In the case of the present respondent, I do not see any basis for an affirmative finding than it is more probable than not that the pleas of guilty entered by the respondent give practical expression to genuine contrition. The nature of the offences; their systematic commission over a lengthy time; their contemptuous flouting of the law both in themselves and as continuations of previous similar contemptuous breaches of the law; all point in the opposite direction. The respondent gave no evidence before the sentencing Judge. There was no evidence in the form of pre-sentence or the like reports from which a sympathetically disposed sentencing Judge might properly glean some support for an affirmative finding, reached on the probabilities, of genuine contrition expressed by the pleas of guilty. To make such an affirmative finding in the case of a major drug trafficker such as the present respondent, would be to impute to him, in effect, a Pauline conversion. Such a thing is not impossible; but it is exceptional. For my own part, I cannot see anything about the present respondent's case that makes it exceptional in that sense.
33 Other judgments of differently constituted Benches of this Court have consistently recognised a quite different sentencing policy or principle in connection with the entering by an accused person of prompt pleas of guilty. This further policy or principle has nothing to do with the manifesting, by the pleas, of genuine contrition. It has a blunt, and bluntly acknowledged, utilitarian purpose.
34 A representative exposition of the particular approach is that of Hunt CJ at CL in Reg v Winchester [1992] 58 A Crim R 345 at 350:
"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.
The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the "discount" allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.
Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case - discounts for assistance given to the authorities to one side - it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."
35 As to the principles thus stated, there are certain propositions which, in my opinion, derive from those principles and have particular relevance to the case of the respondent.
36 First, the utilitarian principle recognised in Winchester must now be accepted as being, at least in broad principle, well entrenched in the sentencing law of this State. Subsequent decisions of this Court have consistently so recognised and applied the stated principles.
37 Secondly, the practical application of the principles in any given case will be affected if, and in so far as, the relevant plea(s) result(s) "merely from a recognition of the inevitable": Reg v Beavan: CCA (NSW), unreported, 22 August 1991 per Hunt CJ at CL.
38 Thirdly, it does not, in my opinion, run counter to the general principles stated in Winchester to recognise that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight.
39 The present respondent's case exemplifies, in my opinion, that exceptional type of criminal conduct.
40 There was put for the respondent a submission, the practical effect of which was that the respondent, had he chosen not to plead guilty to the charges preferred against him, could have tied up, perhaps for a year or more, a considerable portion of the limited resources available to the criminal justice system. It was submitted that the respondent was entitled, therefore, to a recognisably substantial discounting of what might otherwise have been thought appropriate sentences in his case.
41 I regard such a contention by a persistent and major criminal offender such as this respondent to show a cold and cynical effrontery to which the Courts, and in particular this Court, should give no countenance whatsoever.
42 In the present particular case, I am strengthened in that view by my opinion that it is a reasonable inference that the respondent's pleas of guilty recognised the virtual inevitability of his eventual conviction on all counts. The evidence against the respondent was, in my opinion, overwhelming. In my opinion it is a reasonable inference that the respondent, recognising that he was facing charges, three of which attracted a statutory maximum penalty of imprisonment for life, was sufficiently street-wise to realise that he had, so to speak, virtually no card to play whether objective or subjective than that of pleas of guilty relied upon as entitling him, practically as of course, to a substantial discounting of what would otherwise be appropriate sentences.
43 As to the respondent's cooperation with the New South Wales Crime Commission: The convenient starting point is a letter written on 6 May 1999 by Mr. Bradley, the Commissioner of the New South Wales Crime Commission. The letter became Exhibit 1 in the proceedings on sentence.
44 The following extract from the letter, Exhibit 1, summarises the assistance given by the respondent to the Commission:
"Kalache made full disclosure of his financial and beneficial interest in the Town & Country Hotel.
Kalache consented to forfeiture at an early stage of the confiscation proceedings. He persuaded Crawford and Burke to do likewise. As a result:
(a) interest in property of Kalche and Deborah Crawford having an estimated value of $1.1 million were forfeited to the Crown.
(b) a proceeds assessment order was made against Burke and Deborah Burke for $375,000;
(c) the Commission's resources were not expended in costly further investigations, examinations and hearings;
(d) the resources of the NSW Police Service were not expended in the investigation or litigation of the matter;
(e) the Supreme Court was not consumed with the hearings for examination and orders for final relief."
45 It should be added to what is there written that the Commissioner, in a separate part of the letter, acknowledges that the respondent contended to the Commission that he would be able to demonstrate "that his assets were lawfully acquired and that he had made, and was continuing to make money, from lawful betting activities". As to this contention of the respondent, the Commissioner acknowledges that electronic surveillance conducted by the Commission had yielded evidence supportive of the respondent's assertion that he had won significant amounts of money through betting.
46 It should be further noted that the person referred to as "Burke" in the Commissioner's letter earlier quoted was, at material times, a business associate of the respondent in the conduct of the business of the Town & Country Hotel; and "Deborah Burke" was Mr. Burke's wife. The person described as "Deborah Crawford" was, at all material times, the de facto wife of the respondent.
47 It was submitted for the respondent that he was properly entitled to a discount in any sentence otherwise appropriate, as an acknowledgment of the utilitarian purposes served by his cooperation with the Commission, and acknowledged in terms in the Commissioner's letter previously quoted.
48 In order to test this submission, it is necessary to consider some features of the relevant legislation. The Criminal Assets Recovery Act 1990 was originally introduced into Parliament as a Bill for an Act to be known as the Drug Trafficking (Civil Proceedings) Act. The long title of the Act, as it now stands, is:
"An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime-related activities; to enable proceeds of serious crime-related activities to be recovered as a debt due to the Crown; and for other purposes."
49 The Second Reading Speech for the original Bill is recorded at Hansard: Legislative Assembly (NSW), 8 May 1990 at 2527 and following. The Second Reading was moved by the Premier himself, a circumstance which would seem to indicate the importance attached by the Government of the day to the legislative policy embodied in the proposed enactment. The Premier introduced the Bill with the following statement:
"This legislation is aimed squarely at those associated with major drug crime. Its purpose is to deprive those involved in the drug trade of their illicit profits - profits earned at the expense of their victims and of the community generally. Importantly, it is not only the profits of a discrete transaction but the proceeds of a life of crime that will be confiscated. Also crucial is the fact that it is not only the person directly involved in the transaction but also those who knowingly benefit from his or her activities who will be called to account for drug-derived assets and profits. Therefore, the legislation represents a comprehensive scheme designed to undermine entire organisations engaged in the drug trade."
50 The Premier went on to refer to recommendations that had been made by a series of Royal Commissioners in connection with the pursuit of the profits of organised crime. The Premier referred in particular to the following comments made by one such Royal Commissioner:
"The modern view held in the U.S. and embraced by many here such as Costigan and Stewart is that the primary attack on organised crime ought to be directed at destroying syndicates and their power.
It is a view that Australian Governments must embrace and act on without delay.
A primary target for attack, if syndicates and their power are to be destroyed, is the money and assets of organised crime.
There are many reasons to support this view.
The goal of organised crime is money.
The financial rewards are very great, and they are the greater because the profits are tax-free.
Money generates power; it allows expansion into new activities; it provides the motive for people to engage in such crime.
It is used to put the leaders in positions, superior to that of others in the community, where they are able to exploit the law and its technicalities and so on.
At the same time, it is the point at which organised crime is most vulnerable."
51 The Premier went on to stress that:
"The most innovative and controversial aspect of this legislation is that it will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process.……………………………………
This legislation, like the Commonwealth Customs Act, treats the question of confiscation as a separate issue from the imposition of a criminal penalty. It essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts. The critical thing that must be proved is that it is more probable than not that the person engaged in serious drug crime. Proof on the balance of probabilities is the same standard of proof as that used in ordinary civil litigation. The more stringent standard of proof beyond reasonable doubt is a creature of the criminal law."
52 The foregoing statements of policy were reinforced further and as follows:
"I mentioned at the outset that the scheme is aimed at those who knowingly benefit from the drug trade. It is fundamental that any confiscation legislation must recognise that the drug trade is not simply a series of discrete activities, but relies on sophisticated organisations and relationships. If honourable members read the Stewart report on the Mr. Asia syndicate and more recent cases involving Cornwall and Bull, it will be obvious that the notion of organised drug crime is not a myth. It is a very disturbing reality. Recent events in Latin America and the United States of America also show that the drug trade involves sophisticated international organisations that involve a lot of people. It is also clear that the people who make big profits from the drug trade are not necessarily, and indeed are not often, involved in the hands-on operational aspects of the drug trade. Complex corporate and international transactions can be used in an attempt to channel money to the Mr. Bigs, to launder illicit proceeds.
………………………………………………..There is, therefore, no doubt that effective legislation has to be able to trace drug-derived proceeds into the hands of third parties and put the onus on those companies or those people to show that they are not involved and have acquired the assets as bona fide purchasers without notice. That is precisely what this legislation will do. There is a very broad definition of drug-derived property, which includes basically any property that has been acquired directly or indirectly using drug proceeds. That property can be restrained and the owner can be put in the position of having to show that he or she did not know or should not reasonably have suspected that the property was illegally derived."
53 The policy thus explained to Parliament by the Premier informs the overall structure of the Criminal Assets Recovery Act, which is a lengthy enactment comprising some 70 sections arranged in five Parts. For present purposes, it is necessary to note the detail of some only of those provisions.
54 The principal objects of the Act are defined in section 3, and are as follows:
"(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and
(b) to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and
(c) to enable law enforcement authorities effectively to identify and recover property."
55 The concept of "serious crime related activity" is the subject of particular, and extensive, definition in section 6. Section 6(2)(b) embraces within the concept of "serious crime related activity" what is described as "a drug trafficking offence". That latter term is itself extensively defined in section 6(3); and is so defined in terms embracing offences in contravention of either section 24 or section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The directly drug-related offences charged against the present respondent were charged, variously, as contraventions of sections 24 or 25.
56 Section 5 of the Act provides as follows:
"(1) For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings.
(2) Except in relation to an offence under this Act:
(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and
(b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act."
57 The particular point now being considered was raised in this Court, and before a two-Judge Bench consisting of Grove and Dunford JJ, in Reg v Rhona Roby, unreported: CCA (NSW), 28 June 1995. The applicant in that matter chose, in the event, not to press the point. The point, as originally formulated by the applicant, had been "………that the applicant's consent to various orders relating to confiscation of her assets amounted to 'assistance to authorities within the meaning of s.442B of the Crimes Act". Grove J notes in his Honour's judgment that the Crown Prosecutor "conveyed his explicit instructions to contend that such activity …………….cannot amount to such assistance". Thereafter, and counsel for the applicant having taken further explicit instructions on that point, the applicant, by her counsel, "expressly disavowed any intention to advance such a submission and was prepared to limit any submission to the more general and, if I may say so, available proposition that the conduct might be seen as some indication of the applicant's progress towards rehabilitation": per Grove J at p.5.
58 The point arose again, and once more before a two-Judge Bench consisting, on this occasion, of Newman and Barr JJ, in Reg v Kellie Marie Murray: unreported; CCA (NSW), 29 October 1997. The case was described, in the principal judgment, which was delivered by Barr J, as entailing "……….. criminality which……………..consisted of many repeated acts of supply over a period of more than three months".
59 In connection with the point now being discussed, Barr J said:
"In my opinion the applicant's co-operation with the authorities and the repayment of moneys derived from her criminal activity did not merit a reduction of the sentence for assistance to authorities. The applicant was entitled to rely on those circumstances as evidence, together with her plea of guilty, of the genuineness of her remorse and that is a finding that his Honour made in her favour."
60 There are four decisions of the Court of Criminal Appeal of Victoria which are relevant to the point now being discussed.
61 The earliest of them is the decision in Reg v Peter John Allen [1989] 41 A Crim R 51. The reasoning of the Court is contained, relevantly, in the following passages from the joint judgment of the Court:
"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, but may be made within six months of conviction: s 5(2) of the Act. Clearly in such a case the sentence could not be affected by the subsequent making of a confiscation order, whether by way of forfeiture order or pecuniary penalty order. However, s 5(3)(a) of the Act reads:
"5(3) If an application is made under sub-section (1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may ---
(a) make a confiscation order at the time of passing sentence and for this purpose 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;"
The Legislature appears to contemplate that the court may wish to postpone sentence until after it has determined the application for the confiscation order, and the section specifically empowers it to do so. It does not say why the court might wish to do this, and the words "for this purpose" would seem as a matter of construction simply to refer to the "purpose" of making the confiscation order at the same time as sentence is passed.
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 had 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.
The weight to be attached for the purposes of sentencing to the fact that a confiscation order has been made is of course an entirely different matter. Often it may be entitled to little weight. But if, for example, the crime was one involving a fraud of some millions of dollars, it might be seen to have some real relevance when sentencing to be aware that a confiscation order had been made that was likely to be effective in the recovery of the amount of the fraud.
It may be that for some reason the court may also see that in the very making of a confiscation order, there is something in the nature of punishment wrought. For example, if an offender who has mixed the profits of his crime of fraud with lawfully gotten gains, and purchased a residential property in which his innocent wife and family live with him in apparent respectability, has a confiscation order made apropos that residence, it might been (sic) that the order, in causing the disruption of his whole family, is in itself a form of punishment to him. The circumstances can vary infinitely, and any attempt to contemplate them in advance is futile.
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." [41 A Crim R at 56,57,58]
62 There are, in my opinion, two points which it is necessary to make in connection with that reasoning.
63 First, there is no equivalent of the Victorian section 5(3) in the New South Wales legislation. The scheme of the New South Wales legislation is much more draconian. That scheme contemplates the making, initially, of what is called a "restraining order". Part 2 of the legislation contains extensive provisions in connection with the making of such orders. Put very simply, the N.S.W. Crime Commission is entitled to apply, ex parte, to the Supreme Court for a restraining order; and the Supreme Court "must make the order" if the application for it is supported by an affidavit made by an authorised officer as defined in the legislation. It is sufficient if that affidavit states, either that the authorised officer "suspects that the person has engaged in a serious crime-related activity or serious crime-related activities and stating the grounds on which that suspicion is based"; or that the authorised officer "suspects that the interest is serious crime-derived property because of the serious crime-related activity or serious crime-related activities of a person and stating the grounds on which that suspicion is based". It is required that the Court itself must, in addition, consider "that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion".
64 Whenever such a restraining order is in force, the Commission may apply at any time to the Supreme Court for what is described as an "assets forfeiture order". Part 3 of the legislation makes extensive provision in connection with the making of, and the consequential effect of, such an order.
65 The relevant provisions are found in section 22 and are as follows:
"(1) If a restraining order is in force under Part 2, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect.
(2) The Supreme Court must make an assets forfeiture order if the court finds it more probable than not that the person whose suspected serious crime-related activity, or serious crime-related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in: (a) a serious crime-related activity involving an indictable quantity or (b) a serious crime-related activity involving an offence punishable by imprisonment for 5 years or more.
(3) A finding of the court for the purposes of sub-section (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime-related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting crime-related activity was committed involving some quantity or other that was an indictable quantity."
66 Secondly, it is noteworthy that the Victorian Court of Criminal Appeal, even given the legislative ambiguities to which it refers in the quoted passages, considered it to be clearly correct that the weight to be attached for the purposes of sentencing to the fact that a confiscation order had been made was, in practical terms, dependent upon particular circumstances which might well "vary infinitely"; and that in at least some cases, the making of a confiscation order "may be entitled to little weight".
67 A differently constituted Bench of the Court, (Young CJ, Murphy and Nathan JJ), dealt briefly with the same point in Reg v Antonio Salvatore Sergi: unreported, CCA (Vic), 23 November 1989. It is sufficient to say that the original sentencing Judge had said, during the course of his remarks on sentence, that he had been "conscious of the impact on" the offender as a result of forfeiture orders that the sentencing Judge himself had made. It is clear that the Court of Criminal Appeal, which refused to reduce the sentence, accepted that, at least as a matter of general principle, it had been correct for the sentencing Judge to give at least some weight to the fact that confiscation orders had been made.
68 In Reg v Leslie Daniel Carroll: unreported; CCA (Vic), 15 October 1999, a Bench consisting of Young CJ , Crockett and O'Bryan JJ considered the extent to which the making of a restitution order in favour of the Commonwealth and against a social security fraud offender, was relevant to the sentencing of that offender. The Court dealt with the point very briefly and as follows:
"We were also urged to take into account the restitution order which was made in favour of the Commonwealth. In R v Allen (CCA, 27th April 1989, not yet reported) this court held that an order under the Crimes (Confiscation of Profits) Act 1986 (Vic) might be taken into account as a relevant factor when determining the appropriate sentence, but the weight of such a factor must vary considerably with the circumstances. The reasoning in that case seems equally applicable to the present restitution order under s. 21B but we do not think in the circumstances that it is entitled to very much weight."
69 The last of the relevant Victorian decisions is that of the Victorian Court of Appeal in R v Tilev [1998] 2 VR 149. The principal judgment was that of Batt JA.
70 The original sentencing Judge had given a suspended sentence to a convicted trafficker in cannabis. The sentencing Judge had made, also, a forfeiture order in respect of various property of the offender. The relevant portions of the judgment of Batt JA, (the other two members of the Court concurring), are as follows:
"Were it not for the existence of the forfeiture order, I would be clearly of the view that an immediate custodial sentence was required and that a sentence which was of a different nature was clearly inappropriate and thus manifestly inadequate. …………………
But the fact is that the learned judge made a forfeiture order, and that the forfeiture order stands. Further, it has, as I have endeavoured to show, a significant effect upon the applicant. ……………………Although not strictly part of the sentence, in substance the forfeiture order has a punitive effect. It is somewhat analogous to a fine paid immediately. The question is not whether this court would have imposed a different sentence, but whether the sentence imposed is manifestly inadequate …………………
In the particular circumstances of this case,…………………….., I have concluded that the forfeiture order has such a significant effect that it cannot be said that the suspended sentence imposed is clearly inappropriate or manifestly inadequate or that, in imposing it, and in particular in suspending the sentence of imprisonment, his Honour gave too mitigatory weight to the forfeiture order." [ (1988) 2 VR, 155(10) - (25)]
71 In Gee v Reg: unreported; CCA (SA), 16 December 1998, a Bench consisting of King CJ and White and Bollen JJ had to deal with an appeal, one of the grounds of which was that the sentencing Judge, before passing sentence upon the appellant, had made an order for the forfeiture of the sum of $10,000 which the appellant had received in exchange for the sale of about 2,300 grams of cannabis. The money had been in the appellant's possession at the time of his arrest; so that the forfeiture order had real effect. The sentencing Judge had taken the view that he was required to disregard the forfeiture in determining the sentence to be imposed; and that he was so constrained by an amendment to the relevant South Australian legislation, being an amendment requiring that in the determination of a sentence, a sentencing Court was to disregard a forfeiture order. That perception of the sentencing Judge had been, in fact, erroneous by reason of the fact that the amendment had come into operation on a date subsequent to the date of the commission of the offence for which the sentence in question was to be imposed.
72 Against that background, King CJ, who delivered the principal judgment of the Court, said this:
"Quite apart from s. 3a, it seems to me that it would have been quite wrong for the learned Judge, in the circumstances of this case, to have mitigated the sentence which the crime otherwise merited by reason of the fact that the appellant has lost his money. It was said on his behalf that he had invested the $9,000 of his lawful savings in the purchase of the cannabis, ……………… If he did so, he invested his money in an unlawful enterprise, and had to take all the risks that are involved in the investment of money in criminal activity. If he lost that money, it is no more than he deserved for embarking upon the criminal enterprise. I think that it would be quite wrong, and indeed bordering on the farcical, for a judge to mitigate a sentence which he would otherwise impose because an offender had lost money which he had chosen to invest in criminal activity. It seems to me, therefore, that the judge's mistake as to the applicability of s.3a of the Act has no effect upon the outcome of this appeal."
73 Further authorities are collected and analysed by Slicer J in Reg v Geoffrey Ian Thorley: unreported; Supreme Court of Tasmania, 25 June 1999. I do not refer to them in detail for three reasons: first, because they do not seem to me to add anything of substance to what I have thus far written; secondly, because there are, among the various authorities, differences between the relevant legislation and the New South Wales Act; and thirdly, because some, at least, of those decisions turn upon there having been made pecuniary penalty orders, so denominated and imposed, rather than confiscation orders of the kind for which provision is made in the New South Wales Act.
74 I advert, finally, to the decision of the Court of Appeal of New Zealand, (Cooke P, Casey and Tompkins JJ), in R v Brough [1995] 1 NZLR 419.
75 In that case, the appellant offender had been convicted of drugs and arms offences. He had been sentenced to imprisonment for 7 years and a fine of $5,000. He had been ordered, also, to forfeit over $17,000 found during a police search of relevant premises; and to pay a pecuniary penalty of nearly $85,000. He contended, relevantly, that the forfeiture and penalty orders should have been taken into account on sentence, and had not been so taken into account. The appeal was dismissed. The relevant portions of the judgment read as follows:
"The policy of the Act, therefore, is two-fold.. First, a person who has engaged in criminal activity should be required to disgorge what in common parlance may be referred to as his or her ill-gotten gains. Requiring these to be paid cannot in any way be regarded as a penalty. Rather, it is simply a recognition that the law should not permit a person to retain the profits of criminal activity. Secondly, it empowers the court to forfeit property used to facilitate the commission of the offences. That too is not for reasons of penalty or punishment, but rather in recognition of the principle that persons who use property to commit crimes should be liable to have that property forfeited. …………….. ……
The court is not directed to have regard to any sentence that may be imposed in respect of offences to which the forfeiture relates. Nor is there any provision in the Criminal Justice Act 1985 requiring a sentencing court to have regard to confiscation orders made under the Act." [ (1995) 1 NZLR at 423(25)-(50) ]
76 After some reference to some of the Australian authorities, and having noted in connection with those authorities that "care must be exercised since in at least some of the State jurisdictions the statutory provisions are different", the Court proceeded:
"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 effect 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." [ (1995) 1 NZLR 424 (25)-(40) ]
77 In my opinion, it would better accord with the manifest policy of the New South Wales legislation to adopt in relation to it the clear and resolute approach of the New Zealand Court of Appeal. Applying the principles thus established to the particular facts of the present case, it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his cooperation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes the one to weaken, rather than to strengthen, the other.