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Court of Criminal Appeal 1 March 2016

Zhuang v Director of Public Prosecutions (NSW)

[2016] NSWCCA 27

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG SUPPLY OFFENCES WHERE POINT NOT RAISED BELOW NO ERROR DEMONSTRATED APPEAL DISMISSED

Citation: Zhuang v Director of Public Prosecutions (NSW) [2016] NSWCCA 27
Court: Court of Criminal Appeal, NSW
Date: 1 March 2016
Judges: Hoeben CJ at CL, Johnson J (principal judgment), Davies J

Background

The appellant had pleaded guilty in the Sydney District Court to serious drug supply offences, including supplying not less than the commercial quantity of methylamphetamine (625 grams) over a three-month period in 2012, and separately supplying heroin. An agreed statement of facts confirmed that she had received at least $118,180 from her drug supply activities during that period.

Following sentencing, Acting Judge Williams made a drug proceeds order against the appellant under the Confiscation of Proceeds of Crime Act 1989 in the sum of $113,390 (representing the $118,180 received, less the $4,790 in cash found in her possession at arrest, which was subject to a separate forfeiture order). The appellant sought leave to appeal against the drug proceeds order, arguing that the amount was miscalculated and that the sentencing judge had failed to account for the alleged involvement of others in the drug supply chain.

The appellant had given evidence at sentencing suggesting she had been used by boyfriends and associates to sell drugs on their behalf. Her argument on appeal was that this third-party involvement should have reduced the amount assessed against her under the drug proceeds order.

  • Whether the drug proceeds order of $113,390 was correctly calculated under the Confiscation of Proceeds of Crime Act 1989
  • Whether the sentencing judge erred by failing to consider the alleged involvement of unnamed third parties in the drug supply chain when assessing the value of the appellant's benefits
  • Whether the failure to raise the third-party involvement argument below (at the sentencing hearing) precluded the appellant from raising it on appeal

Decision

Johnson J (with whom Hoeben CJ at CL and Davies J agreed) granted leave to appeal but dismissed the appeal and confirmed the drug proceeds order.

The Court found that the sentencing judge had applied the correct methodology under the Confiscation of Proceeds of Crime Act 1989. The agreed statement of facts, signed by the appellant's solicitor, established that she had received at least $118,180 from drug supply activities. Subtracting the $4,790 subject to the forfeiture order produced the figure of $113,390, which accurately reflected the calculation framework under the Act.

On the third-party involvement argument, the Court noted that this point had not been raised at the sentencing hearing, where the appellant's counsel confined submissions on the confiscation orders to hardship. The Court found the references to unidentified male acquaintances in the evidence were, at best, vague, and provided no real foundation for a different assessment. Critically, even on appeal, the appellant had filed no affidavit or other evidence setting out what she would have put before the District Court had the matter been remitted.

The Court distinguished this case from Director of Public Prosecutions (NSW) v Colakoglu, where drug proceeds orders had been sought against multiple co-offenders with a risk of double-counting across those individuals. Here, there was a single offender and a straightforward factual foundation for the order based on agreed figures.

Orders Made

  • Leave to appeal granted
  • Appeal against the drug proceeds order dismissed
  • Drug proceeds order of $113,390 made on 4 April 2014 confirmed

Key Takeaways

  • Under the Confiscation of Proceeds of Crime Act 1989, a drug proceeds order against a single offender may properly be calculated by reference to amounts the offender is agreed to have received, without deduction for sums that may have been passed on to unnamed third parties, where the evidence of third-party involvement is vague and unsubstantiated.
  • A failure to raise a ground of challenge to a confiscation order at the sentencing hearing is a significant obstacle on appeal, particularly where that ground depends on factual considerations that could have been placed before the primary judge.
  • No error was established in the sentencing judge's assessment merely because the appellant gave evidence suggesting she had acted partly on behalf of associates, where the agreed statement of facts contained nothing identifying those persons or quantifying their involvement.
  • The double-counting concerns identified in DPP (NSW) v Colakoglu (multiple co-offenders, overlapping drug proceeds orders) did not apply where a drug proceeds order was sought against a single convicted offender on the basis of agreed receipt figures.
  • An appellant seeking to remit a confiscation matter to a lower court for reassessment on new factual grounds ordinarily needs to place evidence before the appellate court showing what material would be relied upon on remittal.

Legislation and Cases Referenced

Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 29, 29(1)(c), 30, 31, 92
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- Director of Public Prosecutions (NSW) v Colakoglu [2015] NSWCCA 301
- R v Hall [2013] NSWCCA 47; 227 A Crim R 544
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460