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Court of Criminal Appeal 4 December 2002

Regina v Wealand

[2002] NSWCCA 471

Also reported as (2002) 136 A Crim R 159
Drugs
CRIMINAL PRACTICE & PROCEDURE MEANING OF 'HARDSHIP'

Citation: Regina v Wealand [2002] NSWCCA 471
Court: NSW Court of Criminal Appeal
Date: 4 December 2002
Judge(s): Spigelman CJ, Sully J, Kirby J

Background

The respondent pleaded guilty to four counts under the Drug Misuse and Trafficking Act 1985, relating to the cultivation and supply of cannabis at a home unit in Wagga Wagga. He had been growing cannabis plants hydroponically inside the unit since late 1998, eventually selling three crops for a total of around $4,000 to $5,000. He was sentenced to three years imprisonment with an 18-month non-parole period on each count, to be served concurrently.

The Crown then applied under the Confiscation of Proceeds of Crime Act 1989 for a forfeiture order in respect of the home unit itself. The respondent did not resist forfeiture of the hydroponic equipment, but opposed the order over the unit. The unit had been purchased for $30,000 as an investment property in July 1998, with $10,000 spent on renovations, before attempts to find a tenant failed and the respondent began using it to cultivate cannabis.

The application was refused by Woods ADCJ in the District Court. The Crown appealed that refusal to the Court of Criminal Appeal.

  • Whether the District Court judge erred in refusing to make a forfeiture order under s18 of the Confiscation of Proceeds of Crime Act 1989 in respect of tainted property
  • Whether the judge's hardship assessment impermissibly took into account the sentence imposed on the respondent, in breach of s18(2) of the Act
  • What constitutes "hardship" for the purposes of s18(1)(b)(ii) of the Act, and how it bears on the exercise of the forfeiture discretion

Decision

The Court of Criminal Appeal dismissed the Crown's appeal, with all three judges agreeing in reasons delivered by Kirby J. There was no dispute that the unit was "tainted property" within the meaning of the Act, having been used in connection with the commission of a serious offence. The contested question was whether the discretion to refuse forfeiture had been properly exercised, with particular focus on hardship.

The Crown argued that the District Court judge had breached s18(2) of the Act by taking the respondent's sentence into account when assessing hardship. Section 18(2) expressly prohibits a court from factoring in the sentence imposed on a convicted person when considering the hardship likely to arise from a forfeiture order. The Court of Criminal Appeal rejected that argument, finding that the judge had not in fact taken the sentence into account. Rather, the judge had looked at the fragile economic circumstances of the respondent's family, including his wife's marginal business (which was also the family home), and the burden that loss of the unit would impose on them.

Kirby J also considered evidence of significant hardship flowing from the family's circumstances: the respondent's disabled adult stepson, who suffered brain damage, depression and a history of suicide attempts; the family's reliance on modest income sources; and the wife's vulnerability following her own illness. These factors, taken together, provided a proper foundation for the discretionary refusal to order forfeiture.

The Court drew on the South Australian decision in Taylor v Attorney-General for South Australia for guidance on the exercise of the forfeiture discretion, noting that relevant considerations include the circumstances of the offence, the connection between the property and the offence, the seriousness of the offending, the value of the property relative to the offence, and the likely consequences of forfeiture for the offender and others affected.

Orders Made

  • The Crown's appeal was dismissed.

Key Takeaways

  • Under s18(1) of the Confiscation of Proceeds of Crime Act 1989, a court exercising the forfeiture discretion must consider both the ordinary or intended use of the property and any hardship likely to arise from making the order.
  • Section 18(2) prohibits a sentencing court from taking the sentence already imposed into account when assessing hardship, but this does not prevent the court from considering the broader economic and personal consequences of forfeiture for the offender's family.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a judge does not breach s18(2) merely by assessing the family's financial vulnerability in the context of the respondent's imprisonment, provided the sentence itself is not treated as a factor weighing against forfeiture.
  • The fact that property was originally acquired for a legitimate purpose (here, as an investment property) is a relevant consideration when assessing the connection between the property and the offence, even if the property later became tainted.
  • No single factor is determinative of the hardship inquiry: courts look at the full range of circumstances affecting the offender and others likely to be impacted, including dependants and the nature of any remaining family assets.

Legislation and Cases Referenced

Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), particularly ss 4, 7, 13, 18, and 92(4)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1) and 25(1)

Cases:
- R v Lake (1989) 44 A Crim R 63
- R v Galek (1993) 70 A Crim R 252
- House v The King (1936) 55 CLR 499
- R v Kalache [2000] NSWCCA 2
- Taylor v Attorney-General for the State of South Australia (1991) 55 SASR 462
- R v Bolger (1989) 16 NSWLR 115