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Court of Criminal Appeal 1 March 2013

R v Hall

[2013] NSWCCA 47

Also reported as 227 A Crim R 544
DrugsFraud & dishonesty
CRIMINAL LAW APPEAL DRUG PROCEEDS ORDER

Citation: R v Hall [2013] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 1 March 2013
Judge(s): McClellan CJ at CL; Bellew J; Button J

Background

The respondent pleaded guilty in the Local Court to supplying cannabis and knowingly dealing with the proceeds of crime, covering conduct between July 2009 and July 2010. He was sentenced in the District Court in June 2011. Following sentencing, the Director of Public Prosecutions applied for a Drug Proceeds Order under the Confiscation of Proceeds of Crime Act 1989 (NSW), seeking an order that the respondent pay $54,750 representing the estimated benefit he had derived from drug trafficking.

The application came before a different District Court judge, who made an uncontested forfeiture order for $4,110 in cash found to be tainted property. The judge declined, however, to make the Drug Proceeds Order. His Honour concluded that the available evidence, drawn primarily from the respondent's own admissions in a recorded interview, was too imprecise to form the basis of any reasonable assessment under sections 29 and 30 of the Act.

The DPP appealed to the Court of Criminal Appeal under section 92(4) of the Act, arguing that the judge had erred in refusing to make any assessment at all, and that the admissions in the record of interview provided sufficient information to support an order.

  • Whether section 29 of the Confiscation of Proceeds of Crime Act 1989 obliges a court to make a Drug Proceeds Order where a defendant has been convicted of a drug trafficking offence
  • Whether the information available to the District Court was sufficient to enable an assessment of the benefit derived from drug trafficking, even if that information was imprecise
  • Whether the Court of Criminal Appeal should itself make the order or remit the matter to the District Court

Decision

McClellan CJ at CL, with whom Bellew J and Button J agreed, upheld the appeal. His Honour found that section 29(1) of the Act imposes an obligation on the court to make a Drug Proceeds Order once a defendant has been convicted of drug trafficking. The provision does not confer a general discretion to decline to make any order simply because the available evidence lacks precision.

The court acknowledged that the information before the District Court was not precise, but held that imprecision does not excuse a court from making an assessment. The admissions made by the respondent in his record of interview, including that he had been selling cannabis for "nearly 12 months" and that he smoked around $50 to $100 worth per day while making at least modest additional sales, provided a proper basis from which a benefit could be assessed on the balance of probabilities.

Applying that reasoning, McClellan CJ at CL assessed the benefit at $70 per day (representing the $50 of cannabis consumed plus a minimum additional daily sale of $20) over 330 days (treating "nearly 12 months" as eleven months). That produced a gross benefit of $23,100, from which the already-forfeited $4,110 was deducted, resulting in a net order of $18,990.

Rather than remitting the matter to the District Court, the Court of Criminal Appeal exercised its own power under section 92(4) to make the order directly, having regard to the additional cost and inconvenience that a remittal would involve. McClellan CJ at CL also noted that the procedure under section 31 of the Act, which enables the prosecution to tender formal statements and casts an onus on the defendant to respond, is the preferable mechanism for prosecuting these applications.

Orders Made

  • Appeal upheld
  • Order pursuant to s 29(1)(c) of the Confiscation of Proceeds of Crime Act 1989 that the respondent pay to the State of New South Wales the sum of $18,990

Key Takeaways

  • Under section 29(1) of the Confiscation of Proceeds of Crime Act 1989, a court is obliged to make a Drug Proceeds Order following a conviction for drug trafficking; the provision does not confer a free-standing discretion to decline simply because evidence is imprecise.
  • A court assessing the benefit derived from drug trafficking does not require precise figures. Where admissions in a record of interview provide a reasonable foundation, those admissions can support a benefit assessment on the balance of probabilities.
  • The Court of Criminal Appeal confirmed that the benefit assessment under sections 29 and 30 of the Act can be approached conservatively, drawing on the most modest reading of available admissions, rather than being abandoned entirely for want of precision.
  • In appropriate cases where all necessary material is before the appellate court, the Court of Criminal Appeal may exercise its section 92(4) power to make the Drug Proceeds Order itself, avoiding the cost and inconvenience of a remittal.
  • Section 31 of the Act, which allows the prosecution to tender formal statements and shifts a responsive onus to the defendant, was identified as the preferable procedure for prosecuting Drug Proceeds Order applications.

Legislation and Cases Referenced

Legislation
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 13, 18, 29, 30, 31, 31A, 92
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Confiscation of Profits) Act 1985 (NSW)
- Criminal Assets Confiscation Act 2005 (SA)
- Legal Practitioners Act 1898-1936

Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Director of Public Prosecutions v George [2008] SASC 300; (2008) 102 SASR 246
- Director of Public Prosecutions v Nieves [1992] 1 VR 257
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
- R v Fagher (1989) 16 NSWLR 67