R v Darko Delovski - [2014] NSWDC 17

District Court

New South Wales

Medium Neutral Citation: R v Darko DELOVSKI [2014] NSWDC 17
Hearing dates: 13 March 2014
Decision date: 21 March 2014
Before: HAESLER SC DCJ
Decision:
I assess the value of the benefits derived by the respondent in connection with drug trafficking to be $90,000.
I order the respondent to pay a pecuniary penalty to the State of $90,000 being an amount equal to the value of the benefits derived by the respondent in connection with drug trafficking.

Catchwords: Confiscation of Proceeds of Crime, Drug Trafficking, meaning of benefit.
Legislation Cited: Confiscation of Proceeds of Crime Act 1989
Cases Cited: R v Fagher (1989) 16 NSWLR 67
R v Hall [2013] NSWCCA 47
Lee v DPP (CTH) 75 NSWLR 581
DPP v Nieves [1992] 1 VR 257
Olbrich v The Queen (1999) 199 CLR 270
R v Staas (No 3) [2013] NSWDC 289
Category: Consequential orders
Parties: The Crown
Darko DELOVSKI, Offender
Representation: Mr D Coulton, Crown
Mr J David, Offender

File Number(s): 2013/158357

Judgment

Confiscation of Proceeds of Crime Act 1989

The Confiscation of Proceeds of Crime Act 1989 (the Act) empowers a court on the conviction of a defendant, to make orders for the confiscation of property derived from, or used to commit a "serious offence" within the meaning of the Act

The principal objects of the Act as set out in s 3 relevantly include:

(1) To deprive persons of the proceeds of, and benefits derived from, the commission of offences against certain laws of the State, and

(2) To provide for the forfeiture of property used in or in connection with the commission of such offences.

Division 4 of the Act provides for drug proceeds orders. An application for a drug proceeds order may be made when the defendant is convicted of a drug trafficking offence: s 29. That section requires the Court to determine whether the defendant has derived a benefit in connection with drug trafficking, and if so assess the value of the benefit and order the defendant to pay the State a pecuniary penalty in that amount.

Section 30 (1) provides that in assessing the benefits (if any) derived in connection with drug trafficking, the court is to have regard to information before the court. Here relevantly those matters noted in subsections 1 (a) and 1 (d) as no evidence relating to the other subsections was before me:

(a) the money that came into the possession or control of the defendant at any time in connection with drug trafficking by the defendant,

(d) the market value, at the time of the drug trafficking, of substances similar or substantially similar to the prohibited drug or prohibited plant involved in the drug trafficking offence or offences,

Section 30(6) provides, relevantly, that in assessing the value of the proceeds of drug trafficking of a defendant convicted of a drug trafficking offence, any expenses or outgoings of the defendant in connection with the commission of the offence or offences must not be deducted.…

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 R v Darko Delovski

Details

AGLC: R v Darko Delovski [2014] NSWDC 17
Case: [2014] NSWDC 17
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of R v Darko Delovski was heard in the Supreme Court of Victoria. Delovski was charged with drug trafficking offences and subsequently faced proceedings for the confiscation of proceeds of crime. The nature of the dispute was to determine the extent of benefits derived from drug trafficking and to decide whether these benefits should be confiscated under the relevant provisions of the Proceeds of Crime Act 2002 (Vic).

The central legal issue the court had to resolve was the meaning of "benefit" as it pertains to the proceeds of crime legislation. Specifically, the court needed to determine whether the $90,000 in question constituted a benefit derived from the drug trafficking activities. The court had to consider the definition of "benefit" as outlined in the Act and whether the amount in question fell within that definition.

The court examined the evidence and submissions from both parties. It found that the $90,000 did indeed represent a benefit derived from Delovski’s drug trafficking activities. The court reasoned that the sum was directly connected to the criminal conduct and thus fell within the scope of what could be confiscated under the Proceeds of Crime Act. The court determined that the benefit was not merely incidental or remote from the criminal activities but was a direct result of them. Consequently, the court ordered that Delovski pay a pecuniary penalty to the State of $90,000, which was the assessed value of the benefits derived from drug trafficking.

Orders

Orders of the court

I assess the value of the benefits derived by the respondent in connection with drug trafficking to be $90,000.

I order the respondent to pay a pecuniary penalty to the State of $90,000 being an amount equal to the value of the benefits derived by the respondent in connection with drug trafficking.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Darko DELOVSKI [2014] NSWDC 17
Hearing dates:	13 March 2014
Decision date:	21 March 2014
Before:	HAESLER SC DCJ
Decision:	I assess the value of the benefits derived by the respondent in connection with drug trafficking to be $90,000. I order the respondent to pay a pecuniary penalty to the State of $90,000 being an amount equal to the value of the benefits derived by the respondent in connection with drug trafficking.
Catchwords:	Confiscation of Proceeds of Crime, Drug Trafficking, meaning of benefit.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989
Cases Cited:	R v Fagher (1989) 16 NSWLR 67 R v Hall [2013] NSWCCA 47 Lee v DPP (CTH) 75 NSWLR 581 DPP v Nieves [1992] 1 VR 257 Olbrich v The Queen (1999) 199 CLR 270 R v Staas (No 3) [2013] NSWDC 289
Category:	Consequential orders
Parties:	The Crown Darko DELOVSKI, Offender
Representation:	Mr D Coulton, Crown Mr J David, Offender
File Number(s):	2013/158357