R v Bell
[2001] WASC 16
R -v- BELL [2001] WASC 16
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 16 | |
| Case No: | IND:993/1998 | 10 JANUARY 2001 | |
| Coram: | ANDERSON J | 30/01/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| PDF Version |
| Parties: | THE QUEEN NOEL ANDREW BELL |
Catchwords: | Criminal Law Pecuniary penalty order Hardship Discretionary considerations |
Legislation: | Corporations (Western Australia) Act 1990 (WA) s 28, s 29 Corporations Law (WA), s 1018(1), s 92(4), s 1311(1)(a) Proceeds of Crime Act 1987 (Cth), s 14(1)(b), s 26 |
Case References: | Allen v R (1989) 41 A Crim R 51 Araya & Joannes v R (1992) 63 A Crim R 123 Kanbur Pty Ltd v Adams (1984) 3 FCR 192 Kimberly-Clark v Commissioner of Patents & Anor (1988) 84 ALR 685 McDermott v R (1990) 49 A Crim R 105 R v Fagher (1989) 16 NSWLR 67 Tapper v R (1992) 64 A Crim R 281 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
NOEL ANDREW BELL
Catchwords:
Criminal Law - Pecuniary penalty order - Hardship - Discretionary considerations
Legislation:
Corporations (Western Australia) Act 1990 (WA) s 28, s 29
Corporations Law (WA),s 1018(1), s 92(4), s 1311(1)(a)
Proceeds of Crime Act 1987 (Cth), s 14(1)(b), s 26
Result:
Application granted
(Page 2)
Representation:
Counsel:
Crown : Mr P N Bevilacqua
Defendant : Mr R A Mazza
Solicitors:
Crown : Commonwealth Director of Public Prosecutions
Defendant : Mazza & Mazza
Case(s) referred to in judgment(s):
Allen v R (1989) 41 A Crim R 51
Araya & Joannes v R (1992) 63 A Crim R 123
Kanbur Pty Ltd v Adams (1984) 3 FCR 192
Kimberly-Clark v Commissioner of Patents & Anor (1988) 84 ALR 685
McDermott v R (1990) 49 A Crim R 105
R v Fagher (1989) 16 NSWLR 67
Tapper v R (1992) 64 A Crim R 281
Case(s) also cited:
Nil
(Page 3)
1 ANDERSON J : On 16 October 2000, the defendant pleaded guilty before me to 24 charges of issuing an invitation to a person to subscribe for a prescribed interest when a prospectus in relation to the interest had not been lodged, contrary to s 1018(1), s 92(4) and s 1311(1)(a) of the Corporations Law. On 2 November 2000, he was sentenced to a total of 2 years and 10 months' imprisonment, commencing from 20 October 2000. I ordered that after service of a period of 17 months' imprisonment the defendant be released upon entering into a recognisance of $5,000 to be of good behaviour for 17 months.
2 Before sentence was passed, the Crown had intimated an intention to apply for a pecuniary penalty order. I heard argument on the application on 10 January last and this is my decision on that application.
3 The application is made pursuant to s 14(1)(b) and s 26 of the Proceeds of Crime Act 1987 (Cth). Those sections are in the following relevant terms:
"14(1) Where a person is convicted of an indictable offence, the DPP may … apply to an appropriate court for one or both of the following orders:
(a) …
(b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.
…
26(1) Where:
(a) an application is made to a court for an order under this section in respect of benefits derived from a person from the commission of an offence; and
(b) the court is satisfied that the person derived benefits from the commission of the offence
the court may, if it considers it appropriate:
(c) assess, in accordance with section 27, the value of the benefit so derived; and
(Page 4)
- (d) order the person to pay to the Commonwealth a pecuniary penalty equal to the penalty amount."
4 Pursuant to s 27(2)(b) of the Act, the value of the benefits derived by an offender from the commission of an offence is to be assessed by the Court having regard to the evidence before it concerning the money that came into the possession or under the control of the offender "by reason of the commission of the offence": s 27(2)(b).
5 The statement of facts upon which the defendant pleaded guilty shows that he received moneys in the form of fees with respect to investments that were made pursuant to the illegal invitations which he issued. In this way, the defendant was personally rewarded by investors to whom he issued illegal invitations. I am satisfied that these commissions or fees were money that came into the possession of the defendant by reason of the commission of the offences within the meaning of s 27(2)(b): Kimberly-Clark v Commissioner of Patents & Anor (1988) 84 ALR 685 at 695 and 697; Kanbur Pty Ltd v Adams (1984) 3 FCR 192. There was a real relationship between the offences and the receipt of the moneys.
6 One of the principal objects of the Proceeds of Crime Act is to "deprive persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Commonwealth": s 3. There is no dispute that the provisions of the Act apply to the Corporations Law of Western Australia: Corporations (Western Australia) Act 1990 (WA) s 28, s 29. There is no dispute that the amount concerned is $48,282. An order is sought that the defendant pay to the Commonwealth that sum.
7 Whether an order should or should not be made is discretionary. The Court needs to be satisfied that it is appropriate for such an order to be made.
8 On behalf of the defendant, it was submitted that the prison sentence passed on the defendant fully and completely punishes him for the offences which have been committed and the imposition of a pecuniary penalty order would be an additional punishment which is not justified in the circumstances.
9 There is some degree of uncertainty as to whether a pecuniary penalty order must always be regarded as an additional punishment. One point of view is that to require an offender to disgorge ill-gotten gains is not to punish him, but simply to deny him the enjoyment of illegal profits.
(Page 5)
- Another point of view is that to make such an order is to exact retribution as part of the punishment process: Allen v R (1989) 41 A Crim R 51 at 55 - 57; R v Fagher (1989) 16 NSWLR 67 per Roden J at 75 - 76; Araya & Joannes v R (1992) 63 A Crim R 123 especially at 128; McDermott v R (1990) 49 A Crim R 105; Tapper v R (1992) 64 A Crim R 281.
10 The question usually arises on sentencing as part of the question whether and to what extent the making of a confiscation order or pecuniary penalty order ought to be taken into account in mitigation of sentence. That is not how the question arises in this case. What was submitted on behalf of the defendant was that because he has been fully sentenced and received no mitigation of sentence on the basis that a pecuniary penalty order might be made, it would be a wrong exercise of discretion to now make such an order. On behalf of the defendant it was submitted that his only significant asset is his interest in the family home. If the Crown enforces the order, serious additional hardship will be caused to the defendant and his family over and above the hardship caused by the sentence of imprisonment.
11 Hardship must surely be a relevant consideration in the exercise of a discretion to make a pecuniary penalty order. On the other hand, it cannot be decisive. There usually will be hardship to the defendant and his family and dependants, when such an order is made. As Roden J pointed out in Fagher (supra) at 76, to decline to make orders simply on the grounds of hardship would be to defeat the purpose of the Act.
12 I mention in passing that the defendant's illegal conduct caused severe financial losses and great hardship to a number of people. From their point of view, there might not appear to be much justice in allowing the defendant to keep his illegal profits because of the hardship to him should he be required to give them up. However that may be, whilst I do take into account that there is likely to be hardship to the defendant and to his family should a pecuniary penalty order be made, I have come to the conclusion that it is not a sufficient reason in this case to decline to make the order. Nor do I think that it would be right to refuse the order on the grounds that the defendant has been sufficiently punished by the term of imprisonment which has been passed. I can see nothing in the Act which would support such an approach. It was an approach which was rejected in Fagher (supra).
13 I am satisfied that there is no circumstance justifying the withholding of an order for a pecuniary penalty and I am prepared to make an order in the terms sought.
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