Citation: Sevastopoulos v Director of Public Prosecutions (NSW) [2020] NSWCCA 331
Court: NSW Court of Criminal Appeal
Date: 14 December 2020
Judges: Bell P, Johnson J, R A Hulme J (judgment by R A Hulme J, with whom Bell P and Johnson J agreed)
Background
The appellant had pleaded guilty to drug supply offences and was sentenced in the District Court in December 2018. His co-offender was sentenced separately after contesting the charges at trial. The DPP chose to delay its confiscation application against the appellant until the co-offender's proceedings were finalised.
On 25 June 2020, the sentencing judge made two orders against both men together: a forfeiture order over approximately $99,050 in cash seized from their car, and a drug proceeds order under s 29 of the Confiscation of Proceeds of Crime Act 1989 (NSW) requiring the defendants jointly to pay $110,000 to the State. That $110,000 figure corresponded to the proceeds of a cocaine sale the appellant had made to a police informant in December 2015, with much of the money understood to have passed to the co-offender.
Both men appeared by audio-visual link from custody and indicated their consent to the orders. The appellant subsequently sought leave to appeal the drug proceeds order, arguing that the $110,000 amount should have been split equally between the two men rather than imposed jointly.
Legal Issues
- Whether a court has power under s 29 of the Confiscation of Proceeds of Crime Act 1989 (NSW) to make a drug proceeds order jointly against multiple defendants on the basis of joint and several liability.
- Whether the drug proceeds order of $110,000 made against the appellant and his co-offender together was lawfully made.
Decision
The DPP conceded that the primary judge had no power to make the drug proceeds order jointly against both defendants. R A Hulme J accepted this concession as soundly based, after considering the text of the Act and two interstate authorities.
The court's reasoning proceeded on three bases. First, ss 29 and 30 of the Act are directed to the benefits derived by a specified individual defendant. Nothing in those provisions, or elsewhere in the Act, contemplates joint and several liability as a foundation for a drug proceeds order. Second, equivalent legislation in Victoria and South Australia had been construed to the same effect, with Blue J in the South Australian Full Court expressly concluding that joint orders were not available under comparable provisions. Third, drug proceeds orders have been characterised as punitive in nature, and permitting joint and several liability would undermine that purpose.
Hulme J was satisfied that a drug proceeds order under s 29 must be assessed and made against an individual defendant, based on benefits that have accrued to that person. The joint order made below was therefore unlawful.
Because the appeal succeeded on this ground, it was unnecessary to consider the appellant's second ground, which alleged that he had not been given a proper opportunity to respond to the orders. Quashing the joint order also had the incidental effect of removing the co-offender's liability under it. The court remitted the DPP's application to the District Court for rehearing.
Orders Made
- Leave to appeal granted; appeal against the drug proceeds order made in the District Court on 25 June 2020 upheld.
- The DPP's application for a drug proceeds order remitted to the District Court for rehearing.
Key Takeaways
- Under s 29 of the Confiscation of Proceeds of Crime Act 1989 (NSW), a drug proceeds order must be made against an individual defendant based on benefits derived by that person specifically. No power exists to make such an order jointly against multiple defendants on the basis of joint and several liability.
- The Court of Criminal Appeal accepted the DPP's own concession on this point, grounding it in the statutory text, comparable interstate authority, and the punitive purpose of the drug proceeds regime.
- Decisions from Victorian and South Australian appellate courts construing equivalent legislation were treated as persuasive on the question of individual liability, reinforcing a consistent cross-jurisdictional approach to this type of confiscation order.
- Quashing a jointly made drug proceeds order will, as a practical consequence, relieve all defendants named in it of liability, not only the appellant who brought the appeal.
- Where a jointly framed drug proceeds order is set aside on this basis, the appropriate remedy is remittal to the original court for rehearing rather than substitution of a corrected order by the appellate court.
Legislation and Cases Referenced
Legislation
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 29, 30, 31, 92
Cases
- Director of Public Prosecutions v Nieves & Ors [1992] 1 VR 257 (Victorian Court of Appeal)
- Western v Director of Public Prosecutions (SA) (2017) 271 A Crim R 102; [2017] SASCFC 177 (South Australian Full Court)