The Commissioner of the Australian Federal Police v Fysh

Judgment 1HER HONOUR: Offenders against the laws of the Commonwealth are liable, in addition to any punishment imposed under the criminal law, to be deprived of the proceeds of their illegal activities under the scheme established by the Proceeds of Crime Act 2002 (Cth). This case raises a narrow but important question as to the proper construction of that statute. 2The defendant, Dr Stuart Fysh, was found guilty by a jury of two offences of insider trading under s 1043A(1)(c) and s 1311(1)(a) of the Corporations Act 2001 (Cth). The charges arose from his purchase in December 2007 of 250,000 shares (in two separate parcels) in Queensland Gas Company Ltd. The shares were later sold by Dr Fysh when the share price was substantially higher. 3On 19 December 2012 I sentenced Dr Fysh to terms of imprisonment of 2 years for the first offence and 18 months for the second offence, the two terms to be served concurrently. I directed that he be released at the expiration of 12 months on a recognizance to be of good behaviour during the balance of those terms: R v Fysh (No 4) [2012] NSWSC 1587. 4The proceedings on sentence were heard together with an application by the Commissioner of the Australian Federal Police for a pecuniary penalty order under s 116 of the Proceeds of Crime Act to recover the benefit derived by Dr Fysh from those two offences. Section 116 mandates the making of an order in circumstances that are satisfied in the present case. Dr Fysh did not resist the making of an order but disputed the assessment contended for by the Commissioner as to the amount of the penalty. The Commissioner contended that the penalty amount should be the whole amount received upon the sale of the shares, being $1,437,500. Dr Fysh contended that the correct assessment was the difference between that sum and the sum of $796,642.82 which he paid for the shares in the first place, giving a net amount of $640,857.18. The Commissioner does not dispute that Dr Fysh bought the shares using $796,642.82 from his own assets acquired before the commission of the insider trading offences. 5On 19 December 2012 I determined that issue in favour of Dr Fysh, reserving my reasons. I made an order that, pursuant to s 116 of the Act, he pay to the Commonwealth a pecuniary penalty in the amount of $640,857.18. These are my reasons for making that order. 6The relevant facts were agreed. The resolution of the issue brought forward for my determination turned on the proper construction of the Act and, in particular, the meaning of the term "benefits" in ss 116 and 121 of the Act and the phrase "expenses or outgoings" in s 126 of the Act. In accordance with the principles of statutory construction, the meaning of those provisions in any given context is to be found in the text of the statute considering the language of the relevant provisions in the context of the Act as a whole, the legal context in which the Act was introduced, the mischief sought to be addressed by its introduction and the desirability of coherence within the whole body of law in which it is to operate. 7The Act expressly interferes with vested rights in property, creating a range of remedies for the confiscation of property and benefits derived from illegal activity. In some instances the Act operates in rem providing for the forfeiture to the Crown of particular property. Pecuniary penalty orders operate in personam, requiring a person to pay a penalty in an amount determined by the court. However, such orders are in some instances enforceable by the creation of a charge on property: see ss 116 and 142 of the Act. Accordingly, the task of interpreting the Act should be undertaken bearing in mind the principle of legality, which holds that Parliament is presumed not to have intended to interfere with common law rights and freedoms except by clear and unequivocal language. 8As noted extra-curially by the former Chief Justice of this Court, the principle that Parliament does not intend to invade fundamental rights, freedoms and immunities has been well-established in Australia since at least 1907 when the improbability of its doing so "without expressing its intention with irresistible clearness" was recognised by the High Court in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304: J Spigelman, Statutory Interpretation and Human Rights, 1st ed (2008) at page 24. An aspect of the principle had indeed been recognised several years earlier (in a context relevant to the present case) in Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 (at 373). 9It is important to bear in mind that the principle of legality does not constrain legislative power, as noted by French CJ in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (at [43]); and see the decision of the Court of Appeal in New South Wales Crime Commission v Kelaita [2008] NSWCA 284; (2008) 75 NSWLR 564 (especially at [57] to [59] per Allsop P; Giles and Bell JJA agreeing at [62] and [63] respectively). The principle operates as a presumption as to the meaning of words that fall short of being irresistibly clear, not as a prohibition on statutory interference with common law rights. 10The decision in Kelaita illustrates the importance in any task of statutory construction of keeping firmly within the text of the statute. In that case, the President said (at [16], citations omitted, emphasis added): ...Penal statutes, likewise, are construed strictly; but the correct approach to their construction and interpretation is to use the ordinary rules of statutory construction and interpretation, and to recognise that if, after those rules are applied, the language of the statute remains ambiguous or doubtful such ambiguity or doubt should be resolved in favour of the subject because there will not be the requisite clarity to justify the application of the penal statute... 11The Court of Appeal held (overturning my decision at first instance) that there was no ambiguity or lack of clarity in the provisions there under consideration and no basis for reading into those provisions any ameliorating provision or power available to be used by the Court in circumstances it thought fair. 12Remarks to similar effect were made by Heydon J in Momcilovic (at [441] to [442]), where his Honour emphasised that the task is to search "not for the intention of the legislature, but for the meaning of the language it used". Within that task, however, as emphasised by the Chief Justice in Momcilovic (at [43]), the principle of legality remains "a powerful principle". 13Relevantly for present purposes, the objects of the Act include the following (set out in s 5): (a) to deprive persons of the *proceeds of offences, the *instruments of offences, and *benefits derived from offences, against the laws of the Commonwealth or the *nongoverning Territories; and (b) to deprive persons of *literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and (ba) to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; and (c) to punish and deter persons from breaching laws of the Commonwealth or the nongoverning Territories; and (d) to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities. 14The Commissioner submitted that the correct approach to the resolution of any issue regarding the interpretation of the Act is to seek a construction that would promote those objects, including the objects of punishment and deterrence stated in s 5(c), and to resort to the principle of legality "only where such a construction is not available". Whilst I accept that regard must be had to the objects of the Act, careful analysis is warranted in considering the manner or measure of punishment intended to be expressed in the object stated in s 5(c). The desirability of coherence in the law informs that consideration. The confiscation of the proceeds of crime complements the criminal justice system but cannot supplant it. To construe the Act as having, as an object, punishment and deterrence beyond confiscation or the denial of profits unlawfully earned would duplicate the objects of sentencing in criminal proceedings and so expose offenders to double punishment. 15It is necessary to examine the scheme established by the Act with those principles in mind. 16Pecuniary penalty orders are addressed in part 2.4 of the Act. The making of a pecuniary penalty order is mandatory if the conditions of s 116(1) in that part are satisfied. That section provides: (1) A court with *proceeds jurisdiction must make an order requiring a person to pay an amount to the Commonwealth if: (a) a *proceeds of crime authority applies for the order; and (b) the court is satisfied of either or both of the following: (i) the person has been convicted of an *indictable offence, and has derived *benefits from the commission of the offence; (ii) the person has committed a *serious offence. 17Section 3 explains that the asterisks identify terms that are defined in the Dictionary in chapter 6 of the Act. However, the term "benefit" is defined only to the extent of stating that it "includes service or advantage". 18The Court is required to quantify a pecuniary penalty order in accordance with division 2 of part 2.4. Section 121 in division 2 draws a distinction in that process between cases where the offence to which the order relates is a "serious offence" and where it is not, allowing the Court in the case of a serious offence to look beyond that offence and to confiscate benefits derived from any other "unlawful activity". However, although the offences to which the present application relates are serious offences within the meaning of the Act, the Commissioner sought no separate quantification on that basis. 19Relevantly for present purposes, the task of the court under s 121 is to assess, in accordance with subdivision B of division 2, "the value of the benefits the person derived from the commission of the offence". 20Section 122 provides a list of matters to which the court must have regard in assessing the value of the benefits, as follows: (1) In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), the court is to have regard to the evidence before it concerning all or any of the following: (a) the money, or the value of the property other than money, that, because of the illegal activity, came into the possession or under the control of the person or another person; (b) the value of any other benefit that, because of the illegal activity, was provided to the person or another person; (c) if any of the illegal activity consisted of doing an act or thing in relation to a *narcotic substance: (i) the market value, at the time of the offence, of similar or substantially similar narcotic substances; and (ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing; (d) the value of the *person's property before, during and after the illegal activity; (e) the person's income and expenditure before, during and after the illegal activity. 21Based on the ordinary usage of the language of those provisions, I would have little difficulty in concluding that the value of the benefit derived from the sale of shares purchased unlawfully with inside information was the net amount received upon sale of the shares after deducting the original purchase price. In its ordinary meaning, the term "benefits" means the good or gain received. In the present context, the term may be understood to refer to the amount by which Dr Fysh's financial position had improved at the conclusion of the transaction as a result of his having sold the shares for more than he paid for them. If he had sold the shares for the price for which he bought them (or less), one would readily accept that he derived no "benefit" from his offending. 22That conclusion is reinforced by a consideration of the textual context in which the term "benefit" appears. Sections 115 and 121 both provide that the pecuniary penalty order amount is based on the benefits the person derived from the commission of the offence. The mandatory considerations under s 122 for determining the value of that benefit specifically invite attention to the net position reached as a result of the illegal activity. Section 122(a) requires the court to consider "the money, or the value of the property other than money, that, because of the illegal activity, came into the possession or under the control of the person" (emphasis added). 23Subsections 122(d) and (e) focus specifically on the net experience of the illegal activity, requiring the court to have regard to changing levels of property, income and expenditure over the relevant period. 24Section 124 also adopts a gain or net increase approach. That provision explains how the court is to determine the value of the relevant benefit in the case of serious offences. Subsection 124(1) provides that the court is to treat the value of the benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess of the value of the person's property during or after the illegal activity as exceeds the value of their property before the illegal activity. Put shortly, the starting point is the net increase in the person's financial position. The person may ultimately be required to pay a greater pecuniary penalty than the net increase in their position over the period of illegal activity as a result of expenses or outgoings incurred in relation to the illegal activity that are not deductible by virtue of s 126. However, those deductions are limited to those things which may be properly classified as "expenses or outgoings" in relation to the specific illegal activity. 25Subsection 124(2)(a) enables a person to reduce the amount payable in accordance with subsection (1) by proving that the excess was due to causes unrelated to the illegal activity, reflecting a legislative intention that lawfully acquired assets should not be subject to a pecuniary penalty order. There is no suggestion in the present case that the money used to purchase the shares was in any way unlawfully acquired. Nothing in the Act suggests that assets which a person had prior to the illegal activity and which were not related to any illegal activity can nevertheless form part of the benefit derived from that activity. 26Subsection 125(2) provides that the court may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time the court makes its assessment, similarly reflecting an intention that the object was to deprive a person of the actual benefit derived, and rebutting any more "draconian" object, a notion considered further below. 27The provision that pulls in a different direction is s 126 of the Act, which provides: In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), none of the following are to be subtracted: (a) expenses or outgoings the person incurred in relation to the illegal activity; ... 28The terms "expenses" and "outgoings" are not defined in the Act. 29Considered in the context of the Act as a whole, s 126 may be understood to foreclose the unseemly prospect of the court's assessment of the value of the relevant benefits being hijacked by accounting issues and expanded to become a complex, costly auditing exercise. 30The Commissioner submitted that, in the present context, the cost of acquiring the shares was an expense or outgoing within the meaning of the section and accordingly that the Court must order Dr Fysh to pay the whole amount received upon sale of the shares without any deduction. 31In my view, it is doubtful whether the term "expenses or outgoings" comprehends the investment made by Dr Fysh in purchasing the shares. Nothing in the Act suggests that the term "expenses or outgoings" should be understood other than in its ordinary meaning. In the context of investment and share trading, that term would ordinarily be understood to refer to the occasional amounts required to be spent in the course of an undertaking or transaction, such as brokerage or transaction fees, banking fees for the transfer of funds, perhaps accounting or bookkeeping fees, employee or consultant fees or the cost of a telephone or internet connection. In the context of share trading, the capital invested to buy the shares would not ordinarily be described as an expense or outgoing of the transaction. 32In the present case, the evidence reveals that there were brokerage fees. Those fees clearly fall within the meaning of the term "expenses or outgoings" and should not be deducted in determining the value of the benefit realised as a result of the illegal activity. In my view, however, the capital used to purchase the shares was not an "expense" or "outgoing" of Dr Fysh's share trading. At the very least, the meaning of the Act is unclear in that respect and the proper approach is to presume that Parliament did not intend it to apply so as to divest Dr Fysh of capital he had acquired before his offending conduct. 33The Commissioner accepted that there is no binding authority to the contrary. However Mr Staehli SC, who appeared for the Commissioner, relied upon what he elegantly described as "a welter" of authority from other jurisdictions broadly supporting the Commissioner's contention. 34Mr Staehli submitted that, had Parliament intended to confine confiscation to the net proceeds of a share sale transaction, it could have chosen the term "profits" rather than "benefits". However, the term "profits" would not have been apt to comprehend as broad a range of kinds of proceeds of crime as the term "benefits". It does not follow that "benefits" means "gross income". It is a term that permits of more various subtleties of meaning, depending on the context. 35Mr Staehli noted further that the prohibition in the case of pecuniary penalty orders on subtracting "expenses or outgoings" under s 126 of the Act is to be contrasted with the provisions relating to literary penalty orders, in respect of which the Act provides that expenses and outgoings must be deducted: see s 159 of the Act. However, that consideration does not determine the present question. 36To the extent that the authorities relied upon by the Commissioner provide support for his contentions, I would respectfully decline to follow them in the circumstances of the present case. 37The Commissioner relied on two judgments of the Victorian Court of Criminal Appeal in Director of Public Prosecutions v Nieves [1992] 1 VR 257 (at 262) and R v Peterson [1992] 1 VR 297. The Act under consideration in those cases was the Crimes (Confiscation of Profits) Act 1986 (Vic), which has no provision equivalent to s 126 of the Proceeds of Crime Act mandating the deduction of expenses or outgoings. 38The circumstances of those cases were very different from the present. In Nieves, three offenders were convicted of trafficking in a drug of dependence. The benefit sought to be recovered under the confiscation legislation was the amount of $21,000, being the sum of cash paid to Nieves (one of the offenders) in three separate drug purchases by an undercover police officer. It was common ground that the cash had been supplied by Victoria Police. The judge at first instance declined to make the order sought, evidently concerned at the lack of evidence as to the amount by which each individual offender ultimately benefited from the transactions. 39The judgment of the Court of Criminal Appeal discussed the jurisprudence as to whether the word "benefits" (in the cognate provision of the legislation there under consideration) meant "profits" such that allowance should be made for the cost to the offender of procuring the drugs on-sold to the undercover police officer. The Court said (at 262.5 per Kaye, Fullager and Hampel JJ): It is inconceivable, therefore, that a court of law should engage itself in the procedure of calculating and setting off against the amount derived from the commission of a crime the expenditures incurred or sharing arrangements made between the convicted persons or between themselves and others: cf R v Smith [1989] 1 WLR 765, at p 769. Furthermore, the legislation is concerned with the benefits derived from a criminal offence, not profits derived from a lawful commercial transaction. 40However, so far as the judgment reveals, it does not appear to have been necessary in that case to decide the issue whether to set off expenditures. The case was determined on the narrow basis that the Court was content to assume, in the absence of evidence, that each offender shared equally in the benefits derived from the joint undertaking. On that assumption, the Court ordered each respondent to pay a penalty of $7000. In the circumstances of that case, the conclusion that an amount paid in cash from the public purse for the purchase of drugs by an undercover police officer was a "benefit" recoverable under the Act, from which no deduction should be allowed, is not surprising. I do not think it provides any support for the Commissioner's contention in the present case. 41Peterson was also a case involving the payment of cash for drugs by undercover police. In that case, however, the evidence established that Peterson, although the recipient of the cash, had immediately passed it on to his principal, receiving in return an amount of heroin, effectively by way of reward for his services as a courier. No inquiry had been undertaken as to the value of the heroin he received. The judge at first instance refused the Crown's application for a pecuniary penalty order against Peterson in the sum of the cash paid by the undercover police officer on the grounds that it did not fall within the meaning of a benefit. The Court of Criminal Appeal upheld that decision, holding (at 301.15 per Crockett and Murphy JJ) that, in a disputed case, "an inquiry should be made designed to ascertain the value of the benefit actually derived by the particular person 'as the result of committing the offence'". If anything, the basis for the decision supports the contention put on behalf of Dr Fysh. 42In a separate, concurring judgment, Marks J (at 302-303) strongly endorsed the view expressed in Nieves that the term "benefit" is not synonymous with net profit, stating that there is no occasion under the legislation to deduct "expenses". Without derogating from the force of those remarks in the context of a drug transaction case, I would observe that no issue as to the deduction of expenses arose in Peterson and in any event his Honour's remarks are of little guidance in the different circumstances of the present case. 43In R v Pedersen [1995] 2 NZLR 386 the Court of Appeal of New Zealand adopted similar reasoning in relation to the Proceeds of Crime Act 1991 (NZ). That was also a drug case. The Court held that the amount of the pecuniary penalty order should be the full amount paid to the offender for drugs supplied by him, and not merely his profit (at 390-391 per Cooke P and Richardson J; Casey and Hardie Boys JJ agreeing; McKay J dissenting). In light of the Commissioner's reliance on the reasoning of the majority in that case, it is worth setting out in full (emphasis added): The Proceeds of Crime Act is not an income tax statute, nor is it one concerned with lawful commercial operations. There is no reason to suppose that it is limited to assessing net gains or trading profits: such an approach to the Act would, we think, be based on considerations foreign to its purview. This is confirmed by s 27(3), prohibiting the deduction of expenses or outgoings. We doubt whether payment to a supplier is an expense or outgoing in connection with the commission of an offence of sale. As the Judge indicates, s 27(3) is probably directed at expenses and outgoings incurred in actually committing the offence: some examples he gives are the costs of petrol, packaging, posting, fertilisers. As to the last example, the cost of fertilisers would be an expense incurred in connection with an offence of cultivation, but whether it could be said to have been incurred in connection with the commission of a later offence of sale is more doubtful. However that may be, irrespective of the true meaning of s 27(3) we see no reason as a matter of statutory interpretation why the cost of supplies can be offset against the benefit that an offender derives from an illegal sale. To allow such a deduction would water down the strength of the legislation. It could also involve inquiries into criminal deals on evidence likely often to be unreliable. Results similar to that which seem to us to represent the correct interpretation of the New Zealand Act have been reached in England under the Drug Trafficking Offences Act 1986: R v Smith [1989] 2 All ER 948; R v Simons (1993) 15 Cr App R (S) 126. The English Court of Appeal have there recognised that the policy of the legislation is Draconian. Under the New Zealand Act, the judicial discretion enables unduly harsh results to be avoided in appropriate cases - a point to which it will be necessary to return shortly. The New Zealand provisions were copied from Commonwealth legislation in Australia, although no decision under that legislation was cited in argument in this Court. Case law on state statutes in Australia has produced a variety of judicial opinions: see R v Fagher (1989) 16 NSWLR 67; R v Cornwell (1990) 49 A Crim R 122; (1990) 94 ALR 495; R v Nieves (1991) 51 A Crim R 350; R v Peterson [1992] 1 VR 297. We join McGechan J in thinking that these Australian authorities are useful chiefly as bringing out suggested difficulties and alternative possibilities, rather than as providing clear assistance. We prefer to rely on what appears to be the reasonably plain meaning of the New Zealand Act. In ordinary usage 'benefits' is a wide expression. No doubt it was seen as appropriate in the Proceeds of Crime Act as a comprehensive term, since money, property and other benefits all fall to be valued under s 27. Words such as 'proceeds', 'receipts' or 'payments' would not have had the same breadth, or at least not so clearly. The wide and residual meaning of 'benefit' has long been recognised in the common law, as in the famous definition of consideration adopted from Comyn's Digest in Currie v Misa (1875) LR 10 Exch 153, 162: 'A valuable consideration, In the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other...' The receipt of services can of course be a benefit... In determining whether there is a benefit constituting consideration for a contract, traditionally no regard is had to whether the recipient contracting party has an obligation to pay someone else. The approach under the New Zealand Act should in our view be the same. This is no more than the ordinary use of language. The benefit from a sale is what the seller gets in return. 44The Commissioner submitted that authorities in the United Kingdom reflect a similar approach, citing the decision of the House of Lords in R v May [2008] UKHL 28; [2008] 4 All ER 97 (at [46] and [48]) and the decision of the English Court of Appeal in R v Morgan; R v Bygrave [2008] EWCA Crim 1323; [2008] 4 All ER 890. 45May was a case of conspiracy to withhold and reclaim the VAT payable on high value computer processing units. The principal issue in the case was whether it was appropriate under the applicable confiscation legislation to apportion liability for the benefit derived from the conspiracy as a whole among the co-conspirators. The passages relied upon by the Commissioner provide broad support for the proposition that the relevant "benefit" gained is the total amount of property or advantage obtained, not the net profit retained by the particular offender after deduction of expenses and amounts paid to co-conspirators. However, their Lordships also emphasised the importance of focusing on the language of the statutory provision in question, "shorn of judicial glosses and paraphrases" (at [46]), noting that "guidance should ordinarily be sought in the statutory language rather than in the proliferating case law" (at [48]). Significantly for present purposes, the benefit under consideration, as in the undercover drug purchase cases, represented a loss to the public purse, not an asset lawfully held by the offender before he committed the relevant offences. 46The Commissioner relied on R v Morgan; R v Bygrave for the following passage (at [18], emphasis added): The confiscatory jurisdiction has consistently been interpreted as deliberately draconian. It is not restitutionary. One consequence of that is that it will not infrequently happen that a defendant is obliged by a confiscation order to pay more than the profit he has made from his crime. 47Mr Walker SC, who appeared with Mr Pike SC for Dr Fysh, submitted that it would be wrong to approach the construction issue raised in the present case on the premise that the Proceeds of Crime Act is deliberately draconian. I would respectfully agree. As explained above, I accept that Parliament has power to pass legislation that has a draconian impact on common law rights, but to approach the task of discerning the meaning of the language used in the Act on that premise would entail an element of question-begging at the expense of a proper application of the principles of statutory construction. 48The only previous decision involving insider trading relied upon by the Commissioner was Director of Public Prosecutions (Cth) v Doff [2005] NSWSC 51. In that case, the defendant was ordered to pay the whole amount received upon sale of the shares without deduction of the price paid for the shares. Barr J said (at [3]): The manner of determining the amount of any pecuniary penalty order is prescribed by Chapter 2, Part 2-4 Division 2 of the Act. As that Division applies to the present case the amount of the order is the total amount of benefits received by the defendant, without deduction of outgoings. 49However, as noted on behalf of Dr Fysh, the amount of the pecuniary penalty order was agreed by the parties in that case and not determined by the Court. His Honour's reference to "deduction of outgoings" is evidently a reference to the terms of s 126(a) but there was no contest, and his Honour did not consider, whether that term includes an offender's funds invested to acquire the shares. 50There is some support in overseas authority for the position contended for on behalf of Dr Fysh. Mr Walker relied on the recent decision of the United Kingdom Court of Appeal in R v James [2011] EWCA Crim 2991; [2012] 1 WLR 2641 where the Court held, applying the series of principles stated in May at [48], that the expenses incurred by the defendant in relation to the processing of tobacco on which he conspired to evade excise duty (such as the costs of equipment and labour) were not expenses "in connection with" the illegal activity because they were incurred in legal transactions for market value. However, the analogy with the present case is not strong, since Dr Fysh's acquisition of the shares was the relevant illegal activity. 51Mr Walker also relied upon the decision of the Court of Appeal of Western Australia in Mansfield v Director of Public Prosecutions [2007] WASCA 39; (2007) 33 WAR 227 where the Court held that the benefit received in relation to a share sale in contravention of insider trading provisions was the proceeds on the sale of those shares. Steytler P said (at [49] to [50]; McLure and Buss JJA agreeing at [57] and [58] respectively): I accept, as did the courts in Nieves, Peterson and Pedersen that the relevant provisions of the Act are concerned with benefits and not with net profits, with the consequence that expenses incurred in the course of committing a crime will not ordinarily be taken into account in assessing the value of the benefit obtained. But the point remains that the assessed value of the benefit (whether it be in the form of property, a service, an advantage or something else) must be no more than what was acquired (or presumed to have been acquired in the absence of proof to the contrary) as a result of the person's involvement in the commission of the offence (in a case falling within s 145(1)(a)). In a case involving the supply of drugs for money, rather than in return for some other property, service, advantage or benefit, the whole of the money will be the benefit derived (if the offender is not merely a conduit, as in Peterson) because the whole of the purchase price will be the benefit that has been derived, or acquired by the offender as a result of involvement in the commission of the transaction giving rise to the offence. However, that will not necessarily be so in cases in which the sale of an item is not absolutely prohibited, but is only prohibited in specified circumstances. In such a case, depending upon the nature of the prohibition, and the effect of its breach, the property, advantage or benefit that is acquired by the offender may be different to, or less than, the sale price.