R v Staas (No 3) - [2013] NSWDC 289

District Court

New South Wales

Medium Neutral Citation: R v Staas (No 3) [2013] NSWDC 289
Decision date: 08 October 2013
Before: Cogswell SC DCJ
Decision:
Offender to pay to the State of New South Wales a pecuniary penalty of $2000. Application for a forfeiture order under s 18 of the Confiscation of Proceeds of Crime Act refused.

Catchwords: CRIMINAL LAW - Procedure - confiscation of proceeds of crime - forfeiture order refused - not satisfied by evidence that "tainted property" - drug proceeds order sought - defendant a middleman - limited profit - pecuniary penalty less than sought.
Legislation Cited: Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18, 29.
Cases Cited: R v Brett STAAS [2012] NSWDC 287.
Category: Principal judgment
Parties: Regina (Crown)
Brett Staas (Offender)
Shaun Allingham (Interested Party)
Representation: Counsel:
M L Barr (Crown)
W Neild (Offender)
Solicitor:
Peter Murphy Criminal Law (Interested Party)

File Number(s): DC 2009/00042332

Judgment

On 28 June 2012 I sentenced Brett Staas for a series of drug offences. The offences are set out in my remarks on sentence R v Brett STAAS [2012] NSWDC 287. A couple of months earlier, on 4 May 2012, the Director of Public Prosecutions (who had prosecuted Mr Staas) filed a notice of motion naming Mr Staas as respondent and seeking orders against him under the Confiscation of Proceeds of Crime Act 1989 (NSW). The orders the Director sought were two. The Director sought a "drugs proceeds order" of $62,000 and a "forfeiture order" in respect of a diamond ring.

I embarked on a hearing of that notice of motion. The Director was represented by Mr M L Barr of counsel as Crown Prosecutor and Mr Staas was represented by Mr W Neild of counsel. In due course I will mention the appearance of another person.

Briefly, the basis of the Director's case is this. When the police arrested Mr Staas, they found in the residence where he was arrested a diamond ring. The Director argues that that ring should be forfeited. In addition, as part of the evidence against Mr Staas, there was an account of a transaction between him and an undercover police operative. The evidence was to the effect that in various transactions the undercover police operative provided Mr Staas with amounts of money totalling $62,000 in exchange for drugs. The Director seeks the drugs proceeds order in respect of that cash that was handed over.

Mr Barr tendered on behalf of his client a statement by the police officer in charge of the case, Sergeant De Bakker. She said in her statement that the $62,000 had not been recovered. She went on to say that Mr Staas "did not appear to hold any legitimate form of employment" during the police investigation. She also said she was "not aware of any legitimately obtained income" which Mr Staas could have used to buy a diamond ring. I will say more about the circumstances of the purchase shortly. Sergeant De Bakker…

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 Staas (No 3)

Details

AGLC: R v Staas (No 3) [2013] NSWDC 289
Case: [2013] NSWDC 289
Decision Date: 08 October 2013

CaseChat Overview and Summary

The case of R v Staas (No 3) involved the defendant, Staas, who was subject to proceedings under the Confiscation of Proceeds of Crime Act. The State of New South Wales sought a forfeiture order for the proceeds of Staas's drug dealing activities. The case was heard in a relevant court, where the defendant contested the confiscation order. The primary dispute was whether the confiscation order should be granted, considering the nature and extent of the defendant's involvement in the drug trade and the profits he had accrued.

The legal issues the court had to determine were whether the property sought to be confiscated was indeed "tainted property" under the Act and if the evidence was sufficient to demonstrate that the proceeds were derived from criminal activities. The court needed to assess the role of Staas in the drug dealing operation and whether he was a significant beneficiary of the criminal enterprise. The court also had to consider the proportionality of the penalty in relation to the defendant's involvement and profits.

The court ruled that while the evidence demonstrated that Staas had acted as a middleman in the drug trade, his role was not sufficiently significant to warrant a confiscation order. The court found that the profits he obtained were relatively limited. Consequently, the court determined that a pecuniary penalty of $2000 was appropriate. The application for a forfeiture order under section 18 of the Confiscation of Proceeds of Crime Act was denied as the court was not satisfied that the property in question was tainted by criminal activities to the requisite standard.

The final orders of the court were that Staas was to pay a pecuniary penalty of $2000 to the State of New South Wales. The application for a forfeiture order under section 18 of the Confiscation of Proceeds of Crime Act was refused.

Orders

Orders of the court

Offender to pay to the State of New South Wales a pecuniary penalty of $2000. Application for a forfeiture order under s 18 of the Confiscation of Proceeds of Crime Act refused.

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 Staas (No 3) [2013] NSWDC 289
Decision date:	08 October 2013
Before:	Cogswell SC DCJ
Decision:	Offender to pay to the State of New South Wales a pecuniary penalty of $2000. Application for a forfeiture order under s 18 of the Confiscation of Proceeds of Crime Act refused.
Catchwords:	CRIMINAL LAW - Procedure - confiscation of proceeds of crime - forfeiture order refused - not satisfied by evidence that "tainted property" - drug proceeds order sought - defendant a middleman - limited profit - pecuniary penalty less than sought.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18, 29.
Cases Cited:	R v Brett STAAS [2012] NSWDC 287.
Category:	Principal judgment
Parties:	Regina (Crown) Brett Staas (Offender) Shaun Allingham (Interested Party)
Representation:	Counsel: M L Barr (Crown) W Neild (Offender) Solicitor: Peter Murphy Criminal Law (Interested Party)
File Number(s):	DC 2009/00042332