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Akoka v The Queen

Akoka v The Queen

Case [2017] VSCA 217 25 August 2017

Appeal

Pecuniary penalty order

Drug trafficking

Benefits assessment

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0245

SARAH MILK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2017
DATE OF JUDGMENT:	25 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 217
JUDGMENT APPEALED FROM:	DPP v Milk (Unreported, County Court of Victoria, Judge Chettle, 20 September 2016)

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CRIMINAL LAW – Appeal – Forfeiture – Pecuniary penalty order following drug trafficking conviction – Whether factual findings open on the evidence – No error – Whether judge erred in failing to take into account non-trafficking period in assessment of benefits – Crown concession – Appeal allowed – Pecuniary penalty order varied – Confiscation Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Crown	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

HANSEN JA:

This is an application for leave to appeal against the making of a pecuniary penalty order (‘PPO’) under s 58 of the Confiscation Act 1997 (‘the Act’) by a judge of the County Court on 20 September 2016. Section 142(3) of the Act provides that an appeal against a PPO is made ‘in the same manner as if it were, or were part of, the sentence imposed in respect of the offence in relation to which the order was made.’

On 4 May 2015, the applicant, Sarah Milk, was arraigned and pleaded guilty in the Bendigo County Court to trafficking in methylamphetamine between 1 January 2010 and 30 June 2014. She also pleaded guilty to other drug and dishonesty offences which are not relevant to this application.[1] A plea hearing was conducted the same day by counsel.
[1]Two charges of trafficking in cannabis and amphetamine, two charges of possession of a drug of dependence (Alprazolam and MDMA), one charge of handling stolen goods and a summary charge of dealing with property suspected to be the proceeds of crime.

On 8 May 2015, the applicant was sentenced to four years and six months’ imprisonment on the methylamphetamine trafficking charge, with a total effective sentence of five years and one month’s imprisonment and a minimum non-parole period of three years and six months. Leave to appeal against that sentence was refused by this Court on 7 September 2015.[2]
[2]Milk v The Queen [2015] VSCA 237.

It is not in dispute that the conviction on the methylamphetamine trafficking charge exposed the applicant to forfeiture of the value of the benefits derived by her as a result of the offence, upon application for a PPO by the Director of Public Prosecutions.[3]
[3]Confiscation Act 1997 ss 3 (definition of ‘automatic forfeiture’, ‘Schedule 2 offence’), 58(1), 59(1), 67, 68, sch 2 cl 1(ad); Drugs, Poisons and Controlled Substances Act 1981 sch 11 pt 3 column 2B.

The Director made a PPO application on 19 June 2015, claiming that the applicant derived a benefit of $1,582,000 from the methylamphetamine trafficking charge. The Director and the applicant —…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akoka v The Queen

Details

AGLC: Sarah Milk v The Queen [2017] VSCA 217
Case: [2017] VSCA 217
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of Akoka against The Queen, the appeal was concerned with the imposition of a pecuniary penalty order following the appellant's conviction for drug trafficking. The High Court of Australia was tasked with examining the legality and fairness of the penalty imposed under the Confiscation Act 1997. The appellant challenged the penalty on two primary grounds: the factual basis for the amount of the penalty and whether the trial judge had properly considered the period during which the appellant was not engaged in drug trafficking when assessing the benefits derived from the illegal activity.

The central legal issues revolved around whether the trial judge's findings were open to the evidence and whether the judge had erred in not taking into account the non-trafficking period when assessing the benefits derived from the criminal activity. The court needed to determine if these errors warranted the allowance of the appeal and a variation of the penalty order. Additionally, the court had to consider the Crown's concession regarding the assessment of benefits.

The court found that the trial judge's factual findings were indeed open on the evidence, meaning they were reasonably supported by the evidence presented. However, the court also determined that the trial judge had erred in not considering the non-trafficking period when assessing the benefits derived from the criminal activity. Despite this error, the court noted that the Crown conceded that the penalty should be varied to reflect a more accurate assessment of the benefits. Consequently, the appeal was allowed, and the pecuniary penalty order was varied to correct the error in the assessment of benefits.

Orders