Stocks v R [2000] TASSC 106

Supreme Court of Tasmania|2000-08-01|Before: Slicer JJ, Crawford J, Underwood J

CITATION: Stocks v R [2000] TASSC 106

Criminal Law - Appeal and new trial and inquiry after conviction - Interference with discretion or finding of judge - Particular grounds - Misdirection and non-direction - Presentation of the defence case - Duty to put defence case fairly - Extent of obligation - Strong Crown case.

R v Ali (1981) 6 A Crim R 161, followed.

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Reparation and restitution by offender - Whether Court may take order of forfeiture and/or pecuniary penalty order into account - Weight to be given to such an order(s) in the exercise of the sentencing discretion.

R v Thorley [1999] TASSC 73, overruled.

Allen v R (1989) 41 A Crim R 51; McDermott v R (1990) 49 A Crim R 105; Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281, followed.

Judgment Number: [2000] TASSC 106

1 The appellant was convicted of one count of trafficking in a prohibited plant, namely Indian Hemp, and sentenced to a term of imprisonment for five years. In addition, the learned sentencing judge made a forfeiture order and a pecuniary penalty order, pursuant to the provisions of the Crimes (Confiscation of Profits) Act 1993 ("the Act"). By two notices of appeal, the appellant has appealed against his conviction and his sentence.

2 With respect to the appeal against conviction, I have had the advantage of reading the reasons for judgment written by Crawford J. I agree with them. There is nothing I want to add.

3 On 19 November 1999, the learned sentencing judge ordered the appellant to serve a sentence of five years' imprisonment to commence on 19 October 1999. At the same time, the learned sentencing judge made the following orders, pursuant to the Act, ss16 and 21, respectively:

* forfeiture to the State of $46,770 cash found in the appellant's possession and certain property to the value of $1,678;

At the conclusion of his comments on passing sentence and reasons for making orders under the Act, the learned sentencing judge said:

"I record that consistent with the decision of Slicer J in R v Thorley [1999] TASSC 73, I did not take these orders into account in determining the sentence imposed on Mr Stocks."

4 That conclusion is the subject of challenge by ground 2 of the notice of appeal against sentence.

5 The Poisons Act 1971, s47(5) provides that a person who traffics in a prohibited plant or prohibited substance "is guilty of a crime and is liable to punishment on indictment under the Criminal Code accordingly". The Criminal Code ("the Code"), s389(3) provides:

"Subject to the provisions of the Sentencing Act 1997 or of any other statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case."

6 Thus, absent express fetter, the question of what was an appropriate sentence was to be determined by an exercise of the unfettered judicial discretion upon the facts of the case. Error will have occurred in the exercise of that discretion if (inter alia) the learned sentencing judge "[did] not take into account some material consideration", per Dixon J (as he then was), Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.

7 Ground 2 asserts that such an error occurred by the failure of the learned sentencing judge to take into account the confiscation orders (the Act, s4(1)). Prima facie such orders were material considerations.

8 There is no express statutory direction to the effect that confiscation orders are, or are not to be taken into account upon the proper exercise of the sentencing discretion as is the case in South Australia and Queensland. See Crimes (Confiscation) Act 1989 (Qld), s98 which provides:

"In deciding the sentence to be imposed upon a person (the 'defendant') for a serious offence the court must not have regard to the question of whether or not -

(a) the defendant's property is, or may become, the subject of a forfeiture order or a forfeiture under section 25; or

(b) the defendant has been or may be ordered to pay a pecuniary penalty or to forfeit an amount to the State under section 86."

9 See also the now repealed Crime (Confiscation of Profits) Act 1986 (SA), s3a which provided:

"A court, in determining sentence for a prescribed offence, must not have regard to the question of whether or not the offender's property is, or could be, the subject of an application for forfeiture under this Act."

10 That South Australian Act was repealed by the Criminal Assets Confiscation Act 1996 (SA), s10 of which provides:

"10 - (1) A court must make an appropriate forfeiture order under this Part if the court is satisfied that forfeiture is necessary to prevent the defendant from retaining the profits of criminal activity.

(2) The court's power to order forfeiture of property beyond what is required under subsection (1) is discretionary.

(3) In deciding whether to impose a discretionary forfeiture and, if so, the extent of the forfeiture, the court may take into account any penalty imposed on the defendant for the forfeiture offence and, conversely, the court may take a discretionary forfeiture into account in fixing penalty for the relevant forfeiture offence."

11 I have been unable to find any judicial interpretation of the South Australian Act, s10.

12 In R v Thorley (supra) Slicer J analysed the provisions of the Act, Pts1 and 2, and referred to a number of authorities in other jurisdictions. Having done so, he concluded at par35:

"The legislative scheme [of the Act] does not permit a court to take into account the making of a confiscation (pecuniary penalty or forfeiture) order in its determination of sentence."

13 I regret that I find myself in respectful disagreement with that conclusion. Such conclusion involves the proposition that some provision in the Act imposes a fetter on the unfettered discretion conferred by the Code, s389(3). I am unable to find any such provision, viz, one similar in effect to that presently and formerly enacted in South Australia and to that presently enacted in Queensland. The Act is silent with respect to the relevance of a confiscation order in the proper exercise of the sentencing discretion. While s16(3) prohibits the court from taking the sentence into account upon a consideration of any hardship likely to be caused to any person by the making of a forfeiture order, there is no statutory direction that the court is not to take any confiscation order into account upon consideration of sentence.

14 There are quite a number of cases decided in other jurisdictions in which the equivalent legislation to the Act imposes no fetter on the exercise of the sentencing discretion. Some of them are set out in Thorley. They include Allen v R (1989) 41 A Crim R 51; McDermott v R (1990) 49 A Crim R 105; Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281.

15 In all those cases, it was held that the making of a confiscation order was a material matter in the exercise of the sentencing discretion. So far as I can see, it does not seem to have been argued to the contrary. Those cases were recently followed in Perkins and Anor v R [1999] SASC 212; (1999) 109 A Crim R 1.

16 The reluctance to fetter the sentencing discretion in the absence of clearly expressed legislative intention to do so, is apparent in Hayes v Weller (1988) 50 SASR 182. In that case, the Full Court of the Supreme Court of South Australia considered the Customs Act 1901 (Cth). The respondent imported a car, and by a fraudulent scheme, evaded payment of duty. Upon detection, the car was forfeited to the Crown. The appellant sued for a pecuniary penalty order in addition. The Customs Act provided for a minimum and a maximum pecuniary penalty. The learned sentencing judge avoided imposition of a pecuniary penalty by discharging the respondent on a bond, pursuant to the Crimes Act 1914 (Cth), s19B(1). The Customs Act, s239 provides that, "all penalties shall be in addition to any forfeiture". Notwithstanding this statutory admonition, the review of the learned sentencing judge's decision proceeded upon the basis that those words did not prevent the court from taking the forfeiture into account when assessing the appropriate pecuniary penalty. In R v Hoar [1981] FCA 20; (1981) 34 ALR 357, the Full Court of the Federal Court was concerned with the provisions of the Fisheries Act (NT), s48, subs(1) and (2) of which provide:

"(1) Anything seized under this Ordinance may, on conviction of a person for an offence in connexion with which that thing was seized, at the discretion of the court recording the conviction, be forfeited to Her Majesty.

(2) The forfeiture shall be in addition to and not a part of a penalty imposed under this Ordinance."

17 Again, notwithstanding the statutory injunction, review of the impugned penalty proceeded upon the basis that the forfeiture was a relevant consideration in fixing an appropriate penalty. This aspect of the case was approved on appeal to the High Court, see R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at 39.

18 Although the scheme of the Act contemplates that a confiscation order may be made after sentence has been imposed, I do not thereby see any warrant for finding an implied fetter on the discretion conferred by the Code, s389(3). The sentencing discretion is quite often exercised in the light of future uncertainties, eg, whether an accused will lose his or her employment by reason of the conviction or whether imposition of a custodial sentence will result in the loss of property or, indeed, even whether an accused will not re-offend as he or she contends.

19 In concluding, as I do, that there was no inhibition on the learned sentencing judge taking into account the confiscation orders he made when exercising his discretion to fix sentence, I say nothing at all about the weight or impact of those orders in the sentencing process. That is an entirely different matter.

20 Specific error attended the order of sentence in that the learned sentencing judge failed to take into account a material circumstance. Accordingly, as is provided by the Code, s402(4), the sentence must be set aside if some other sentence should have been passed.

21 The evidence at trial established that over a period of approximately two years, the appellant was involved in a major illegal operation trafficking in Indian Hemp. The plants that were later trafficked were grown hydroponically in five different premises in Hobart and New Norfolk. The operation was carried out by the appellant and co-offenders, Stephen Ewings, Geoffrey Thorley and, to a lesser degree, Russell Smith.

22 The appellant's involvement in this crime began in January 1995 when he and Mr Thorley acquired possession of a warehouse at 55 Wellington Street, Hobart. There, Indian Hemp was grown hydroponically and after harvesting, was sold by the appellant.

23 Mr Thorley was also involved with Mr Ewings and, to a lesser extent, Mr Smith, in the growing of Indian Hemp in Charlotte Street, New Norfolk. Soon, the separate operations merged and other premises were involved. In general terms, it could be said that Mr Ewings was responsible for the production of the Indian Hemp, Mr Thorley was responsible for the provision of capital and equipment and the appellant was responsible for selling the harvest on the illicit market. In his comments on passing sentence, the learned sentencing judge said:

"In January 1995, you and Mr G I Thorley embarked on an Indian hemp cultivation and marketing enterprise. On 20 January 1995, you together entered into an agreement to purchase a property at 55 Wellington Street, Hobart and thereby obtained occupancy of the warehouse at that site. Thereafter, until the warehouse was raided by police on 17 February 1997, it was used by you or others who became involved in the enterprise for the hydroponic cultivation of Indian hemp.

The enterprise was pursued with professionalism and planning. You educated yourself on the cultivation of Indian hemp by reading books and magazines. In November 1995, you travelled to Amsterdam to purchase Indian hemp seeds suitable for indoor cultivation. Subsequent to that trip, Mr Thorley introduced two others into the enterprise when he initiated the development of a cultivation site at New Norfolk. One of those he introduced was Mr S Ewings, who supervised the growing of Indian hemp at that site. Early in 1996, you moved out of 55 Wellington Street and Mr Ewings took over the growing of Indian hemp at that site. At about this time, you set up operations at a new site, a warehouse at 200 Argyle Street. You vacated that site in August 1996.

In November 1996, you leased a warehouse at 78 Bathurst Street where you dried Indian hemp provided by others involved in the enterprise. At about this time, Mr Thorley, Mr Ewings and Mr R Smith set up a further growing site in a warehouse at Charles Street, Moonah.

In about July 1996, Mr Ewings assumed responsibility for the delivery of Indian hemp harvested from sites used in the enterprise to you. You paid Mr Ewings $275 per ounce for the Indian hemp and you dried and on-sold it for $350 an ounce.

This was a large scale commercial operation. Records found at 78 Bathurst Street show that during about the last eight months of your activities, you sold Indian hemp for a gross return of $531,280. Your cut from that amount was $122,512.50. During this period you were involved in sales effected on an almost daily basis.

Your conviction is for trafficking in Indian hemp, that is your involvement in the drying and marketing of the Indian hemp which was produced. It is for trafficking, and trafficking alone, that you are to be sentenced. You are not being sentenced for any role you played in the cultivation of the Indian hemp.

Mr Ewings, who pleaded guilty to a charge of trafficking, was sentenced to three years' imprisonment. With parity in mind, I note that the duration of your involvement in the enterprise was almost twice as long as that of Mr Ewings. You were a participant in the enterprise from the outset. He set up cultivation sites and grew the Indian hemp. You dried and marketed the product. Significant mitigatory factors taken into account when Mr Ewings was sentenced were his admission of guilt, his co-operation and his remorse. These factors are absent in your case.

Mr Thorley was sentenced to five years' imprisonment. You were both involved in the enterprise from the beginning. As with you, Mr Thorley could not claim mitigation for an early plea of guilty or remorse. Your roles in the enterprise were not the same. Mr Thorley provided capital and oversight. Your activities were more hands-on and regular.

I reject your counsel's submission that you were a small fry in the enterprise. I am in no doubt that you were a major participant.

Like Mr Ewings and Mr Thorley, you have no relevant prior convictions.

You have three dependent children with whom you enjoy a close relationship. Your imprisonment will have a most adverse impact on their lives. You are a qualified tradesman and enjoyed a good work record until your involvement in this criminal enterprise.

For reasons of greed, you committed a most serious crime. For a period of about two years, in participation with others, you trafficked in Indian hemp as part of an operation which required considerable guile and planning. The dominant consideration when dealing with a crime such as yours is general and personal deterrence.

You are sentenced to five years' imprisonment from 19 October 1999."

24 In argument in support of ground 1, Mr Hodgman QC, counsel for the appellant, submitted that the learned sentencing judge's categorisation of the appellant's role in the commission of the crime as having been on a par with that of Mr Thorley, was erroneous. In part support of this submission, Mr Hodgman relied upon an observation allegedly made by senior counsel for the Crown in his opening address on the trial of Mr Thorley to the effect that the appellant's involvement in the operation was that of a "bunny". Of course, this submission is of no assistance to the appellant. With respect to the material facts, the learned sentencing judge was obliged to sentence the appellant upon the material properly put before him upon the appellant's trial and the sentencing hearing, and nothing else.

25 The evidence given at trial clearly showed that the appellant was just as involved in the unlawful enterprise as was Mr Thorley, albeit, each played a different role. Mr Thorley was sentenced to five years' imprisonment. Mr Ewings was sentenced to three years' imprisonment. As the learned sentencing judge noted, the involvement of the appellant in the illegal enterprise was almost twice as long as the involvement of Mr Ewings. Even if it might be said that Mr Ewings' and the appellant's involvement in the commission of the crime was about the same, there were significant personal circumstances concerning Mr Ewings that justified the imposition of disparate sentences. Mr Ewings pleaded guilty and in the circumstances of this case, such a plea entitled him to a substantial discount. See Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 and cases referred to therein. Mr Ewings was remorseful, the appellant showed no remorse. Most importantly, Mr Ewings was extremely co-operative with the police. The extent of that co-operation was set out in material which was put before the learned judge who imposed sentence on Mr Ewings.

26 Neither the appellant nor Mr Ewings had any prior convictions but, as the learned sentencing judge rightly observed, in cases like this personal and general deterrence are of great significance in the sentencing process.

27 Mr Russell Smith was not charged or convicted of trafficking. He was convicted of growing prohibited plants between November 1996 and February 1997 at Moonah and possession of prohibited plants between those dates at that place. Contrary to Mr Hodgman's submissions, Mr Smith is not a comparable offender. There is no substance in the complaint that error occurred by reason of lack of parity of sentence with either Mr Ewings or Mr Smith.

28 What was the significance of the confiscation orders in the sentencing process? The Act contemplates the making of either a forfeiture order and/or a pecuniary penalty order. Tainted property, as defined by the Act, s4(1), is liable to forfeiture. As Slicer J pointed out in Thorley (supra) this may result in a convicted person losing property having a value far in excess of the value of the unlawful gains. Further, in the calculation of a pecuniary penalty order, although s21(2) makes it is necessary to take into account the value of any forfeited property, s22(6) expressly prohibits the deduction of "any expenses or outgoings of the person in connection with the commission of the offence when calculating the amount of a pecuniary penalty order".

29 In this case, the property forfeited was $46,770 cash found in the appellant's possession and hydroponic gear to the value of $1,678.

30 The Crown's application for a pecuniary penalty order was based on a calculation of the expenditure of the appellant and his wife during the period covered by the indictment in excess of their legitimate income. The sum totalled $220,195. The learned sentencing judge said that the evidence from documentation seized by police disclosed that during the last eight months of the period covered by the indictment, the appellant received $122,512.50 from trafficking. The learned sentencing judge further found that it was likely that the appellant's gross earnings from trafficking during the previous 17 months substantially exceeded that amount. He concluded:

"This leaves me in no doubt that the value of the benefit derived by Mr Stocks from trafficking totalled at least the amount which is the subject of the order sought, $222,195."

31 From that sum, the learned sentencing judge deducted the value of the property which was the subject of the forfeiture order.

32 Thus, in summary, although the statutory prescription for the calculation of a pecuniary penalty order might result in a convicted person being required to pay a sum far in excess of the net gain from the commission of the crime, in this case, the evidence tends to suggest that that did not occur or alternatively, any part of the pecuniary penalty order that represents a sum in excess of the net gain to the appellant, is small.

33 With respect to the relationship between the exercise of the sentencing discretion and the making of orders under Crime (Confiscation of Profits) legislation, Professors Fox and Frieberg say in Sentencing (State and Federal Law in Victoria) 2nd edn at 507:

"Forfeiture and confiscation orders are supplementary sanctions designed to buttress traditional penal methods in areas of more serious crime, but are poorly integrated into the existing sentencing system. At this stage of the development of modern forfeiture legislation, it appears that there are two parallel sanction systems rather than a unified one making use of both criminal and civil sanctions. While the modern 'proceeds of crime legislation' is designed to be incapacitative and deterrent in its impact, those who draft the legislation are not willing to have it submit to some of the restraints imposed by general sentencing principles, such as proportionality, totality and mitigation."

34 The observation with respect to the unwillingness to submit to the restraints of proportionality are apposite to the provisions of the Act with respect to forfeiture orders and pecuniary penalty orders for the reasons that I have just mentioned. In an interesting article, The Disunity of Sentencing and Confiscation (1997) 21 Crim LJ 191, Bagaric discusses the objectives of confiscation and sentencing and considers whether they should be regarded as separate matters. He concludes, at 201 and following, that one should not impinge upon the other. He said:

"The underlying rationale for confiscation is that crimes which involve a profit element are felt to be particularly reprehensible. All crimes are believed to be harmful to the community due to the breakdown in social order and security which they produce, but crimes susceptible to confiscation have an additional abhorrent element because they also involve a financial gain to the offender and hence directly violate the principle that no one should profit from his or her own wrongdoing. For example, drug trafficking contains the dual offensive components of causing harm to the users and financially enriching the supplier. While normal sentencing sanctions adequately deal with most crimes, special measures are necessary for such heinous conduct."

35 Bagaric argues that the sentencing power and the confiscation power are directed to different evils and, accordingly, different types of sanctions are required. Thus, he argues that the principle of proportionality is not breached by the making of a confiscation order, quite separate from the imposition of a sentence. Whilst it seems to me there is much merit in Mr Bagaric's argument, it is impossible, as it is always impossible when discussing sentencing, to lay down any hard and fast rule. There might be a case in which the forfeiture order and/or pecuniary penalty order impose financial loss upon the convicted person far in excess of profits made by the commission of crime. In such a case, it would seem to me appropriate to take into account the impact of the confiscation orders in the imposition of sentence. Conversely, if the making of confiscation orders does no more than deprive the convicted person of the profits of his or her crime, then the making of the confiscation orders would have no weight in the sentencing process. It is trite but true to say each case will turn upon its own facts. I agree with the following passage taken from the judgment of Allen v R (supra) at 57 - 58:

"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 be seen 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."

36 In the present matter, I am clearly of the view that the confiscation orders made by the learned sentencing judge have virtually no significance in the sentencing process. Deprivation of profits from heinous criminal activity does not go in reduction of an appropriate penalty for the commission of that criminal activity. For the reasons I have given, I do not consider, in this case, that the value of the property forfeited and the amount of the pecuniary penalty order have done more than, in substance, deprive the appellant of the profit he made from his unlawful conduct.

37 Although I have reached the conclusion that the learned sentencing judge erred when he took the view he could not take into account the confiscation orders in the exercise of his discretion when imposing sentence, I am clearly of the view that the sentence of five years' imprisonment was an appropriate one in all the circumstances of the case.

38 Accordingly, I would dismiss the appeal against sentence.

39 The appellant was found guilty of trafficking in a prohibited plant and he has appealed against his conviction on five grounds.

40 The first ground complains that a miscarriage of justice occurred because in the course of the summing up of the learned trial judge, the defence was incorrectly criticised for failing to provide additional samples of handwriting before the trial and the learned judge refused to discharge the jury, pursuant to the Criminal Code, s378(1). That subsection provides that a judge may, in his discretion, at any time discharge a jury without giving a verdict in any emergency rendering it expedient in the interests of justice to adopt that course.

41 Evidence had been given by Sergeant Dale, a handwriting expert, that he was unable to identify the handwriting on a number of exhibits, although he observed that there were many similarities and some differences between the handwriting and a known sample of the appellant's handwriting. He added, and in the course of the summing up the learned trial judge reminded the jury of it, that due to insufficient samples of the appellant's handwriting, he could not say whether or not any of the handwriting was that of the appellant. His Honour also reminded the jury that late in the trial, the appellant had offered to provide more samples of his handwriting. His Honour criticised the appellant for making the offer at a late stage of the trial, although he emphasised that the appellant was under no obligation, in any event, to provide samples.

42 The summing up was interrupted by a short lunch break and immediately after the break, having heard submissions from the appellant's counsel and an application to discharge the jury, and having ruled that the jury should not be discharged, the learned judge instructed the jury that his remarks were "quite wrong" and "wholly erroneous" and were withdrawn. His Honour explained that they were made on the basis of a misconceived assumption that the appellant had been given adequate notice of what Sergeant Dale would say in evidence, whereas the truth of the matter was that the appellant did not have notice that Sergeant Dale would say that he had insufficient samples of the appellant's handwriting until some time after the trial had commenced. His Honour explained that there was no justification for his assumption and emphasised that the appellant did not have earlier notice of what Sergeant Dale would say. The jury were directed "to totally disregard that observation of mine". His Honour told the jury that the appellant's offer to provide further samples of handwriting was, therefore, a matter for them to take into account. Finally, his Honour apologised to the jury for having made the erroneous observation. In my view, any risk of a miscarriage of justice was removed by the steps taken by the learned judge to correct what he had said earlier. His Honour's decision to refuse to discharge the jury was plainly the correct one.

43 The second ground of the appeal against conviction is that the learned judge failed to fairly put the defence in his summing up to the jury, that the summing up was not fair and a miscarriage of justice therefore occurred. The appellant's counsel submitted that the learned judge did not fairly put the defence case in that when he did refer to it, on a number of occasions he told the jury that he could not understand it, or the appellant's evidence, or a point made by the defence, or he commented that he did not think the jury would accept the appellant's evidence about a matter or a point made by the appellant's counsel.

44 When dealing with the evidence, the learned judge first reminded the jury of much of the evidence called by the Crown. In the course of doing so, his Honour referred to some of the evidence from the appellant in response to some of the Crown evidence and to some discrepancies and weaknesses in the appellant's evidence. The appellant's counsel complained of the learned judge's remark to the jury that the appellant's explanation for the unusually high consumption of electricity at premises occupied by him fell short of accounting for the amount of electricity used. The appellant's counsel also complained of a remark by his Honour to the jury that he did not think that they would accept a submission from the appellant's counsel that it was unlikely that if Ewings was supplying drugs to the appellant, he would be content to allow a purchaser to owe him as much as $9,625. The remark was made in the context of evidence that at the appellant's home there was found $9,260 in cash, together with a slip of paper upon which was written "35 @ $275 = $9,625". On the Crown case, the piece of paper was referring to 35 ounces of marihuana at $275 per ounce. Counsel for the appellant also referred to his Honour dealing with Crown evidence concerning expenditure by the appellant over a material period of time. Evidence was given by Sergeant Hawkins that on his calculations the unemployed appellant had spent far more money than he could possibly have received according to his own account. The learned judge reminded the jury of evidence given by the appellant which his Honour understood to explain how the appellant happened to have about $120,000. His Honour commented that there was still $115,000 of expenditure unexplained.

45 It was appropriate for the learned judge, when dealing with the Crown case, to point to perceived weaknesses in the defence case and there was nothing unfair about the learned judge doing so in the respects argued by the appellant's counsel. On each occasion the jury were instructed that it was a matter entirely for them to consider and determine.

46 Of course, the learned judge had an obligation to adequately put the case for the appellant and, in my view, his Honour complied. Having dealt with the Crown case, his Honour turned to the appellant's evidence. He was the only witness to give evidence for the defence. In a substantial part of the summing up, his Honour reminded the jury of the appellant's evidence. A complaint was made by the appellant's counsel that much of it was given in cross-examination, but a response to that is that most of the evidence of the appellant was given in the course of cross-examination. There were two passages in which the learned judge made critical comment, but otherwise his Honour simply reminded the jury of the appellant's evidence without comment. Once his Honour had completed that task, he reminded the jury of the main points relied upon by the defence. Most, if not all of them, had been put to the jury earlier by the appellant's counsel in his closing address.

47 In my view, this ground of the appeal has not been established. The learned judge fairly put the defence case and the summing up was not unfair. In some respects, reminding the jury of the evidence the appellant had given could be said to be harmful to his case because much of his evidence was implausible. In a case such as this, where the Crown evidence was strong and the appellant's evidence was weak, I am reminded of the comment of Street CJ in R v Ali (1981) 6 A Crim R 161 at 165:

"When one case is strong and the other is weak it does not follow that a balanced summing up will be achieved by under-weighting the strong case and over-weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other."

48 The third ground of the appeal against conviction is that the learned trial judge:

"... erred in law by failing to leave to the jury the Special Question of alleged trafficking and/or possession with one Michael Webster, when it was the defence case that the Appellant had been in possession of a prohibited plant which was owned by Michael Webster."

49 The evidence established that a substantial amount of marihuana was found in Bathurst Street premises occupied by the appellant. It was apparently being dried in readiness for distribution. It was the Crown case that the appellant had possession of it for the purpose of trafficking in it. It was the appellant's case that a friend, Michael Webster, who the Crown asserted was fictitious, was responsible for it and that at the highest, the appellant was an accessory to Webster. His evidence was that he was foolish, but allowed his friend to use his premises for an unlawful purpose.

50 Counsel for the Crown disavowed any wish to obtain a verdict against the appellant upon the basis that he was an accessory to Webster's unlawful enterprise and the trial judge directed the jury that under no circumstances were they to find the appellant guilty of trafficking upon that basis. The drafting of the indictment did not leave it open, in any event. The jury were instructed that there would have needed to be a separate count for the appellant to be found guilty upon that basis. It was therefore made clear to the jury that they could only find the appellant guilty of trafficking upon the basis of the Crown case.

51 In those circumstances, no purpose would have been served in asking the jury to answer the special question referred to in this ground. There is no merit in the ground.

52 Associated with that issue is ground 4, which asserts that the learned judge erred when he refused to direct the jury that it was still open for the Crown to indict the appellant for trafficking and/or being in possession of a prohibited plant owned by Webster. Counsel for the appellant had told the jury that in the course of his summing up. The learned judge made no mention of the matter and, when he was asked to confirm to the jury what the appellant's counsel had told them, his Honour declined to do so. Essentially, the only basis for this ground, as argued by the appellant's counsel to this Court, was that there was a risk that the jury might perversely find the appellant guilty of trafficking, not wanting him to escape punishment with regard to the marihuana found in the premises occupied by him, whereas if the jury had been directed by the trial judge that the Crown would be entitled in the future to charge the appellant with an offence arising out of his association with Webster, the jury might have been more prepared to find the appellant not guilty of the count in the indictment. There is no merit in the ground. Such distrust of a jury is misplaced and inappropriate.

53 The fifth and final ground of the appeal against conviction is that the conviction was unsafe and unsatisfactory because it was primarily based on the evidence of an accomplice, Ewings, an admitted drug trafficker and liar, whose evidence was, in the main, uncorroborated, or at least uncorroborated to such an extent that it could not fairly be said that it would not be dangerous to convict the appellant.

54 Ewings was in fact an accomplice and the appropriate direction and warning was given by the learned judge to the jury about the dangers of accepting Ewings' evidence unless it was corroborated. Not only was Ewings an accomplice, on his own admission he had lied when speaking to the police and when giving evidence at an earlier trial of Thorley. At that trial he had asserted that the appellant was no way involved in trafficking. Ewings had, on his own plea of guilty, been convicted of trafficking and at the time of giving evidence at the appellant's trial, he was on parole. There was, therefore, every reason for the jury to be particularly cautious about accepting Ewings' evidence unless there was a substantial body of evidence which corroborated what he said. No complaint has been made of the directions and warnings given to the jury by the learned trial judge about the matter.

55 There was substantial corroboration of Ewings' evidence to the extent that I am satisfied that not only is the verdict of the jury unassailable, it almost certainly was the correct one. I will not deal with all of the evidence which corroborated the evidence of Ewings, but will mention some of the most probative and material of it. A substantial amount of marihuana was found by the police being dried and processed in premises occupied by the appellant. There was a substantial body of evidence that Indian Hemp had been and was being grown by hydroponic methods, and the appellant was found in possession of hydroponic equipment. Electricity accounts incurred by the appellant revealed unusually high consumption of electricity, consistent with a large scale hydroponic cultivation of Indian Hemp. Telephone records revealed many telephone calls between the appellant's telephone and the telephones of those involved in the growing and/or trafficking operation. At 78 Bathurst Street, where Indian Hemp was being dried and processed in the premises occupied by the appellant, $34,000 in cash was found hidden in his motor vehicle. In addition, a bundle of $9,620 in cash was found at his home, together with a slip of paper stating "35 @ $275 = $9,625". (Ewings gave evidence that cannabis was sold for $275 per ounce.)

56 There was other evidence which corroborated that of Ewings. The jury were entitled not to believe the appellant when he gave evidence. Much of what he said was implausible and the jury were entitled to reject it. The jury's verdict was justified and was not unsafe or unsatisfactory.

57 In my opinion, the appeal against conviction should be dismissed.

58 I respectfully agree with all that has been said by Underwood J with regard to the appeal against sentence. There is nothing I could usefully add. I agree that the appeal against sentence should also be dismissed.

59 I agree with the reasons for judgment of Crawford J in relation to the appeal against conviction and have nothing to add. I propose that the appeal against conviction be dismissed.

"(2) The Learned Trial Judge erred in law in failing when determining sentence to have any regard to the impact or likely impact on the Appellant if an order were to be made pursuant to Section 21 of the Crime (Confiscation of Profits) Act 1993 requiring the Appellant to pay to the State a pecuniary penalty."

The learned sentencing judge sentenced the appellant to a term of imprisonment for five years. In addition, he ordered that the sum of $46,770 in cash found in the premises where the cannabis was processed and stored and other specified property valued at $1,678 be forfeited to the State and that the appellant pay a pecuniary penalty of $184,425 calculated on the basis of the value of the trafficked cannabis. Consistent with an earlier decision of R v Thorley [1999] TASSC 73 he did not take orders into account in determining the sentence.

61 Regrettably, counsel for the appellant advanced no argument in support of this ground and the response made by junior counsel for the respondent was limited in that it did not articulate the competing propositions. It is necessary to consider the matter afresh.

62 The preamble to the Crime (Confiscation of Profits) Act (Tas) 1993 ("the Act") states:

"An Act 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."

63 The Act, s4, defines a confiscation order as meaning "a forfeiture order or a pecuniary penalty order". An application for a confiscation order (with certain qualifications must be made before "the end of the relevant application period in relation to the conviction" (s11(2)) which is six months following the date of conviction, conditional discharge, sentence or a notional date of absconding. A court may defer sentencing until it has determined the application for a confiscation order. A forfeiture order relates to tainted property and in any consideration of its making a court is required 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."

64 In considering any hardship on the person convicted, a court is by virtue of s16(3) "... not to take into account the sentence imposed for the offence." A person referred to in s16(2)(b) need not be the person convicted. The making of a forfeiture order has no impact on sentence, since it relates to property acquired or possessed through criminal activity. The rights, welfare and interests of third parties are protected by the legislation.

65 The Act, Pt 2, Div 3 provides for a different regime in relation to penalty orders. It 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 penalty is to be assessed in accordance with statutory criteria calculated in accordance with the money, value of property or other benefit obtained by reason of the commission of the offence or offences (ss21 and 22). The pecuniary penalty is to be reduced in the event of the imposition of a forfeiture order in accordance with the value of that order (s21(2)) or if the value of the forfeiture order is shown to be less than originally calculated or is set aside on appeal and may be varied upon the application of an authorised officer (s21(3)).

66 Expenses and outgoings are to be disregarded in any calculation of the value of the benefits derived from the commission of the offence (s22(6)).

67 The amount payable is "taken to be a civil debt due ... to the State" (s21(4)) and an order "may be enforced as if it were an order made by the court in civil proceedings instituted by the State ... and the debt arising from the order is to be taken as a judgment debt" (s21(5)).

68 Part 2 Division 3 makes no reference to "hardship" in any assessment of the amount of a pecuniary penalty order, nor does it state it, in statutory form, as a matter to be considered in any exercise of discretion in the imposing of a pecuniary penalty. But once the court has exercised its discretion, it is precluded from assessing the amount of the pecuniary penalty on any basis other than that provided by the statutory scheme. As I said in Thorley at par34:

"... absent legislative prohibition, ... 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."

69 It is necessary to revisit the conclusion "but not vice versa". The decision in Thorley was pronounced on 25 June 1999 and has been subject to appeal. The appeal has not been listed for hearing and the Crown has made no application either for it to be dismissed or brought on for hearing. The decision in this case was pronounced on 19 November 1999 and the appeal heard in Second Term 2000. Crown counsel who appeared in Thorley were the same as appeared in both the trial and appeal of Stocks. No comprehensive argument was put by Crown counsel during the hearing of this appeal in support of the reasoning in Thorley and it appeared (maybe wrongly) during the course of an exchange with counsel that the Crown had modified its approach to the issue. It is not appropriate for me to give any detailed analysis of the decision in Thorley except in the most general terms. In essence, reference was made to tensions between the statutory provisions, differing approaches taken by courts in various jurisdictions and statutory amendments to comparable legislation in Victoria, South Australia and Queensland. The conclusion was based on particular principles pertaining to the statute itself and applying those principles to the more general area of sentencing. This analysis will commence with general sentencing principles and their application, if any, to the specific statute. If that process produces a different result, then so be it.

70 The Sentencing Act 1997, s68, permits a court to make a compensation order against a convicted person in favour of a victim. The provision is designed to obviate the necessity of a further and civil trial. It does no more than give effect to a civil remedy already possessed. In part, it resembles the earlier use of monetary compensation as expiation of the criminal conduct, but in those cases the compensation is directed to the victim. In confiscation the money is payable to the State and is designed to strip from the offender his ill-gotten gains. Unlike a compensation order designed to redress injury suffered, a penalty order in no way relates to the existence or amount of any identified harm. The taking of the profits of a criminal activity impacts on the offender by the sale of assets or seizure of assets or the existence of a future liability to pay. The effect is to punish. The statutory prohibition against the deduction of costs in any assessment belies the accuracy of the statement "deprive of gain".

71 The imposition of a pecuniary penalty is punitive in nature (R v Hoar [1981] HCA 67; (1981) 148 CLR 32, Galek v R (1993) 70 A Crim R 252). It is because of its nature that courts have interpreted equivalent statutes restrictively with the consequence that in some circumstances the making of such an order can be taken into account in the imposition of sentence (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, Pepin v R (1996) 86 A Crim R 327) although in some cases those courts were dealing with different statutory provisions (Crime (Confiscation of Profits) Act 1986 (Vic); Sentencing Act 1991, s5 (Vic); Crimes (Confiscation of Profits) Act 1986, s3 (SA); Crimes (Confiscation of Profits) Act 1989, s71 (Qld)). A problem with assessing any impact of the making of the order as part of the sentencing process is that an application for or making of a pecuniary penalty order might occur long after the passing of sentence. It would be impossible to estimate the possible effect of an order which might or might not be made (Allen (supra)) although it has been suggested that the subsequent making of an order might be evidence which would permit challenge to a sentence previously imposed (Araya & Joannes v R (1992) 63 A Crim R 123). However, if the amount of the pecuniary penalty is known, especially if it is assessed at the time of the sentencing hearing, then it ought (absent statutory prohibition) be taken into account as a concurrent penalty and thus impact on sentence. As the Full Court of Victoria said in Allen (supra) at 57:

"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."

72 That approach has been subsequently approved by the Federal Court (McDermott v R (1990) 49 A Crim R 105; Tapper v R [1992] FCA 600; (1992) 64 A Crim R 281; the Supreme Court of Western Australia in Wignall v R (1992) 61 A Crim R 54; New South Wales in R v Fagher (1989) 16 NSWLR 67, and Pepin v R (supra)). Three propositions can be identified from those authorities:

(1) The possibility that a pecuniary penalty might be imposed in the future cannot be taken into account in the determination of sentence.

(2) The imposition and/or assessment of a pecuniary penalty at a later time ought not take into account, as hardship, a sentence already imposed.

(3) When a pecuniary penalty is imposed, concurrently with sentence, its making is a factor relevant to sentence.

73 There is anomaly and unfairness in this approach. It will impact differently on one who has assets to one without. Its effect depends on concurrence in the making of two orders. Nevertheless, the approach is a reflection of the subjective circumstances of a particular offender in relation to a particular crime. It should not be considered as an attempt to achieve parity between co-offenders or persons who have committed similar crimes. Specific disparity is balanced by a general fairness in the imposition of an overall penalty comprising both components. Proportionality might be relevant in an assessment of a pecuniary penalty order by reference to punishment already inflicted by means of sentence (R v Kardogeros [1991] VicRp 19; [1991] 1 VR 269).

74 That it can be a relevant factor does not mean that its weight can vary depending on the "real" impact of the making of a pecuniary penalty order on a particular offender. Weight will vary with the ultimate effect of achieving a form of parity. The relevant impact is akin to the determination of penalty in circumstances where the offender has made restitution (Allen (supra) at 57; R v Powell unreported Queensland CA 173/1999). The effect might not be great (Attorney-General v Saunders [2000] TASSC 22) but remains a relevant factor.

75 The weight of authority is persuasive and should be followed in this jurisdiction. Remedy to meet unfairness remains the province of Parliament.

77 The appellant was originally indicted jointly with Thorley. He was afforded a separate trial on the basis of evidentiary prejudice. The case, although conducted by separate trials, remained essentially the same. Thorley and Stocks had at an early stage been involved in the hydroponic growing of Indian Hemp at a warehouse in North Hobart. Stocks transferred his interest in those premises to Thorley who, with the assistance of Ewings developed the production of hemp, both in quantity and quality. Thorley expanded the operation through two other premises at Moonah and New Norfolk, an enterprise which involved a fourth man, Russell Smith. Ewings would transport the harvested crop to Stocks, who undertook distribution. Stocks would pay an agreed price upon delivery and profited by the retention of the balance of moneys upon sale. Stocks and Thorley were the principals in the one commercial enterprise albeit that each played differing roles. Their conduct, personal circumstances and economic gain were comparable. The learned sentencing judge made the following findings and observations in passing sentence:

I reject your counsel's submission that you were a small fry in the enterprise. I am in no doubt that you were a major participant.

Like Mr Ewings and Mr Thorley, you have no relevant prior convictions.

You are sentenced to five years' imprisonment from 19 October 1999."

78 The degree of involvement of Ewings and Smith was in no way comparable. No error has been shown in the approach taken by the learned sentencing judge in his consideration of parity. The ground ought be dismissed.

79 Ground 2 is made out and the appeal as to sentence ought be upheld. The terms of the pecuniary penalty order ought remain but the sentence of imprisonment quashed. There remains the question of what weight ought be given to the effect of the pecuniary penalty order on sentence. I would propose that the matter be remitted to the learned sentencing judge for re-sentence

(1997) 21 Crim LJ 191

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