Subject to that the discretion is unfettered.
51 The submission advanced on behalf of the DPP was to the effect that the discretion had miscarried, essentially because the judge failed to take into account relevant circumstances, or otherwise misunderstood the task required of him.
52 The submissions put on behalf of Mr Zahrooni in response, in my opinion, misconceived the nature of the case made on behalf of the DPP. A great deal of effort went into the proposition that the DPP's case was that no discretion existed. That is not a correct reading of the basis on which the DPP put his case.
53 I return now to the various matters raised on behalf of the DPP.
54 The reasons given by the judge for refusing to make the order are pithy. However, it may be discerned that there were two aspects to the decision. The first was that referred to in s 18(1)(b)(i) - the ordinary use of the vehicle; the second was that referred to in s 18(1)(b)(ii) - hardship that may be anticipated to flow if the forfeiture order were made.
55 No complaint is made by the DPP about his Honour's approach to the first of these. There was no evidence as to when Mr Zahrooni acquired the vehicle, and no direct evidence as to the use to which he ordinarily put it, but there is no reason to think that it was other than, as his Honour said, normal transport. His Honour further inferred, with justification, that as Mr Zahrooni was separated from his wife but had contact with his children, he used the vehicle for that purpose (no doubt among others).
56 It was from this that his Honour further inferred that, if deprived of the vehicle, Mr Zahrooni would suffer hardship in experiencing difficulty in visiting his children. And it was this further inference that gave rise to the first two grounds of the appeal.
57 On behalf of the DPP it was submitted that, since Mr Zahrooni would, by reason of his incarceration, be unable in any event to visit his children, and would certainly be unable to use the vehicle for that purpose, the hardship found by his Honour was illusory, and, to the extent that any hardship existed as a consequence of his inability to visit his children, that hardship flows from the sentence imposed and would not flow from a forfeiture order if one were to be made. Section 18(2) expressly prohibits a court, in considering hardship, taking into account the sentence imposed.
58 There is a certain logic in the DPP's argument. However, it is limited. By s 50 of the Sentencing Procedure Act, Mr Zahrooni is entitled to release on parole at the expiration of the non-parole period - 18 months - 24 August 2011. Thereafter, if he is permanently deprived of his vehicle, the hardship envisaged by his Honour is real.
59 I would reject grounds 1 and 2 of the appeal.
60 With respect to grounds 3, 4 and 5 (which he argued together, as interrelated) senior counsel for the DPP made a number of points. Firstly, he noted that it was the intention of the legislature that a forfeiture order would cause some measure of hardship. That submission is supported by authority: R v Lake (1989) 44 A Crim R 63 at 66. However, in my view, the primary purpose of the legislation is to deprive offenders of the proceeds of crime, and thereby to operate as a disincentive or deterrent additional to that created by the penalties prescribed and imposed - to make crime unrewarding and unproductive. That is the purpose of the inclusion of paras (b), (c) and (d) in the definition of "tainted property". The property caught by para (a) of the definition is in a different category: it catches property that is used in or in connection with the commission of crime, but is not the proceeds of crime. There is no doubt that the vehicle the subject of the application comes within that definition. But a proper exercise of discretion conferred by s 18, where para (a) of the definition is invoked, also requires a consideration of the extent to which the property was used in or in connection with the commission of the crime. This, too, is supported by the decision in Lake, and the earlier decision of this Court in R v Bolger (1989) 16 NSWLR 115, to which, in Lake, reference was made. Questions of proportionality must be considered. Here, although the judge made no reference to it, it is a reasonable inference that the vehicle was used incidentally in the commission of the crime: it facilitated transport, but there is not the slightest reason to think that its principal purpose was drug dealing. That, in my opinion, is a relevant consideration and is consistent with s 18(1)(b)(i).
61 Counsel for the DPP also observed that Mr Zahrooni gave no evidence about hardship. But, it seems to me, the legislation provides for that circumstance. Section 18(1) requires the court to take into consideration the two circumstances (ordinary use and hardship) that the legislature has deemed relevant "having regard to the information before the court"; s 18(1)(b)(ii) expressly permits inferences to be drawn about potential hardship. As I have said, no complaint was made about his Honour drawing on the information in his possession from the sentencing proceedings.
62 The DPP then made quite extensive reference to the medical conditions of Mr Zahrooni's mother and father. The purpose of these references was to remove any suggestion that his being deprived of the vehicle would result in hardship for them. But, as was conceded during the course of argument, hardship to Mr Zahrooni's parents cannot be identified as one of the reasons for Hughes DCJ's refusal to make the forfeiture order. It cannot, therefore, be relevant to establishing error in the exercise of the discretion.
63 Although the reasons given by the judge were terse, I am not prepared to find that they were based on a false principle or took into account irrelevant considerations, or failed to take into account relevant considerations, or were otherwise within the principles stated in House.
64 At the conclusion of argument, the Court raised with counsel a question concerning the costs of the appeal. The Court subsequently received helpful written submissions from senior counsel for the DPP, to the effect that a costs order is beyond the jurisdiction of the Court. Since counsel who appeared for Mr Zahrooni very fairly and properly advised the Court that he was acting pro bono, it is unnecessary to determine that question.
65 In my opinion the appeal ought to be dismissed.
66 The orders I propose are: