Western v Director of Public Prosecutions (SA) - [2017] SASCFC 177

Supreme Court of South Australia
(Full Court)
WESTERN v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2017] SASCFC 177
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
22 December 2017
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - PECUNIARY PENALTY AND LIKE ORDERS - ASSESSMENT OF BENEFIT
On 28 February 2014, the appellant and his co-accused, Mr Slaven and Mr Lawson, were sentenced to periods of imprisonment for a number of offences concerning a longstanding, large scale cannabis growing and distribution operation in South Australia and New South Wales. The sentencing Judge also made a forfeiture order in the amount of $110,000 against Mr Slaven, which amount formed part of $377,100 found in his possession.
On 14 April 2014, the Director of Public Prosecutions applied under s 95 of the Criminal Assets Confiscation Act 2005 (SA) for a pecuniary penalty order in the sum of $488,600 in respect of the benefit derived by the appellant and Mr Lawson from the offending.
On 30 November 2015, a Judge of the District Court held that the Director’s application with respect to Mr Lawson failed as being out of time, but made a pecuniary penalty order against the appellant in the sum of $110,200. While 18 parcels sent to the appellant and Mr Lawson intercepted by police contained cash totalling $488,600, the appellant’s derived benefits were limited to the money contained in five parcels the subject of counts 1, 5, 9, 15 and 17 on the Magistrates Court Information. A pecuniary penalty order was made under s 95(1) limited in amount to the monetary value of the benefits derived from the commission of those offences.
Three questions arose for determination on the appeal:
(i) Was the confiscation Judge correct to find that the appellant’s “conviction day” for the purposes of s 95(5) of the Confiscation Act was 9 August 2013, and, accordingly, that the Director’s application for a pecuniary penalty order with respect to the appellant’s trafficking offences was made within time?
(ii) Should the pecuniary penalty order made have been reduced under s 107 of the Confiscation Act by an amount equal to the value of cash forfeited by Mr Slaven?
(iii)    Should the confiscation Judge have apportioned the benefits derived from the commission of counts 1, 5, 9, 15 and 17 between the appellant and Mr Lawson?
Per Blue J:
1.      The action was conducted as an adjunct to the criminal proceedings without a trial or evidence taking place. It should have been conducted as an independent civil proceeding with formal evidence and addresses. In the circumstances there is no basis on which the benefit derived by the appellant can be determined and the matter must be remitted to the District Court for trial.
Per Lovell and Hinton JJ (Blue J agreeing):
1. The Director’s application filed on 14 April 2014 was made before the end of the period of 9 months commencing on 9 August 2013, the appellant’s “conviction day” for the purpose of s 95(5) of the Criminal Assets Confiscation Act 2005 (SA), and so was within time.
2. No deduction under s 107 of the Criminal Assets Confiscation Act 2005 to account for the $110,000 forfeited by Mr Slaven was required. The inquiry is into the total value of the benefits that a specified person derived from the serious offence upon which the application is predicated and from the commission of any other offence that constitutes unlawful activity.
Per Lovell and Hinton JJ:
3.      Given the answer to question two, no question of apportionment arises. Given the way in which the matter was run before and by the confiscation Judge, there is nothing before this Court that allows it to truly value the appellant’s derived benefits. The appeal should be allowed, the pecuniary penalty order set aside and the matter remitted for rehearing.
Criminal Assets Confiscation Act 2005 (SA), referred to.
R v Griffiths (1977) 137 CLR 293; Hall v The Director of Public Prosecutions (2015) 122 SASR 12; Director of Public Prosecutions v George (2008) 102 SASR 246; Director of Public Prosecutions v McCoid [1988] VR 982; Director of Public Prosecutions v Helou (2003) 58 NSWLR 574; Director of Public Prosecutions v Nguyen (2009) 23 VR 66; R v Muldoon (2015) 123 SASR 1; Maxwell v The Queen (1996) 184 CLR 501, applied.
DPP v Nieves [1992] 1 VR 257, distinguished.

WESTERN v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2017] SASCFC 177
Full Court: Blue, Lovell and Hinton JJ
BLUE J:

This is an appeal against a pecuniary penalty order made under section 95 of the Criminal Assets Confiscation Act 2005(SA) (the Act).
The appellant Sam Western together with Nathan Lawson and Nicholas Slaven pleaded guilty in the District Court to, amongst others, five counts of trafficking in cannabis whereby Mr Slaven sent to Mr Western or Mr Lawson parcels of cash totalling $110,200 in return for the supply by Mr Western or Mr Lawson of 32 pounds of cannabis.
The respondent, the Director of Public Prosecutions, brought an action in the District Court for a pecuniary penalty order that Mr Western and Mr Lawson pay the value of the benefits derived by them from the commission of the offences assessed under section 99 of the Act. The Director contended that Mr Western and Mr Lawson were jointly and severally liable for benefits derived by either of them. Mr Western and Mr Lawson contended that the action was out of time, alternatively that each was liable only for the personal benefit derived by him and alternatively that $110,000 forfeited by Mr Slaven should be deducted from any order otherwise to be made against them.
A Judge of the District Court made an order that Mr Western pay to the Crown a pecuniary penalty of $110,200 and dismissed the action against Mr Lawson as being out of time.[1]
[1] Director of Public Prosecution v Western and Anor [2015] SADC 164.
Mr Western appeals against the order on three grounds:
1.the application was made outside the time limit of nine months after the “conviction day” imposed by subsection 95(5);
2.the Judge ought to have deducted the sum of $110,000 forfeited by Mr Slaven;
3.the Judge erred in finding that the Act imposed joint and several liability upon Mr Western and Mr Lawson and ought to have found that the benefit derived by each was $55,100.
The background, reasons for decision and contentions on appeal are summarised by Lovell and Hinton J.
I agree with the reasons of Lovell and Hinton J in relation to the first and second grounds of appeal. My reasons address only the third ground of appeal.
Pecuniary penalty orders
Part 5 Division 1 of the Act addresses two distinct forms of pecuniary penalty orders: those relating to benefits derived from the commission of certain offences and those relating to instruments of certain offences. Only the former are relevant on this appeal and the latter can be ignored.
Sections 95(1), 99(a), 103, 104(1), 107(1) and 108(1) in conjunction empower[2] a court to order, on application by the Director, that a specified person pay to the Crown the total value of the benefits the person derived from the commission by the person of a serious offence less:
·the value of any proceeds of the serious offence being property the subject of forfeiture or a forfeiture application;[3]
·the amount of any pecuniary penalty imposed in respect of the benefit under the Act or any other law;[4]
·where appropriate the amount of a fine, restitution, compensation or damages in relation to the offence paid or payable by the specified person.[5]
[2]    Subsection 95(1) is expressed in mandatory terms but this Court has held that a court has a discretion whether to make an order if the preconditions are established: Director of Public Prosecutions v George [2008] SASC 330 at [245] per White J (with whom Doyle CJ and Vanstone J relevantly agreed).
[3]    Section 107.
[4]    Section 104.
[5] Section 108.
A serious offence is defined by subsection 3(1) primarily[6] to mean an indictable offence or certain defined summary offences and, although not specified, must be an offence against the laws of South Australia.[7] However, provided that the person has derived benefits from the commission of a serious offence, by virtue of section 99(a)(i)(B) the court may also include in the total benefits any additional benefits derived by the person from the commission of what would be a serious offence if committed in South Australia (a foreign serious offence).[8]
[6]    It also includes a foreign offence declared by the regulations to be within the ambit of the definition. However the Criminal Assets Confiscation Regulations 2006 (SA) by reg 8A only declare an offence triable before the United States Military Commission constituted under Title 10 USC Sec 948d of the Military Commissions Act 2006 (US) to be a foreign offence. Foreign offences can be ignored for the purposes of this appeal.
[7]    The Proceeds of Crime Act 2002 (Cth) creates a parallel regime of pecuniary penalty orders in respect of offences against a law of the Commonwealth. If the Act purported to apply in respect of Commonwealth offences, it would be ineffective as a result of section 109 of the Commonwealth of Australia Constitution. The Act contemplates that the other States and the Territories have enacted parallel legislation in respect of offences against the laws of the other States and the Territories. In these circumstances the Act does not purport to apply to such offences. See also by contrast the definition of "unlawful activity".
[8]    See the definition of “unlawful activity” in subsection 3(1).
A benefit is not defined other than to include a service or an advantage.[9] In context it has a broad meaning encompassing money, property and intangible benefits derived by the specified person from commission of the relevant offence or offences. The relevant value of the benefit is the gross value of the benefit derived rather than the value net of costs or outgoings incurred to commit the offence or derive the benefit.[10]
[9] Subsection 3(1).
[10] Section 103.
The core provisions relating to benefit-based pecuniary penalty orders and the key definitions are as follows:
95—Making pecuniary penalty orders
(1)A court must, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay to the Crown an amount determined under Subdivision 2 if satisfied that—
(a)     the person has been convicted of, or has committed, a serious offence; and
(b)     the person derived benefits from the commission of the offence.
…
99—Determining penalty amounts
The amount that a person is ordered to pay under a pecuniary penalty order (the penalty amount) is determined by—
(a)in the case of an application under section 95(1)—
(i)    assessing under this Subdivision the total value of the benefits the person derived from—
(A)the commission of the serious offence; and
(B)the commission of any other offence that constitutes unlawful activity; and
(ii)     subtracting from the total value the sum of the reductions (if any) in the penalty amount under sections 107 and 108;
…
103—Matters that do not reduce the value of benefits
In assessing the value of benefits that a person has derived from the commission of a serious offence or serious offences, the following must not be subtracted:
(a)any expenses or outgoings the person incurred in relation to the offence or offences;
(b)the value of any part of the benefits derived from the commission of the offence or offences that the person derives as agent for, or otherwise on behalf of, another person (whether or not the other person receives any of the benefits).
104—Benefits and instruments already the subject of pecuniary penalty
(1)A benefit or instrument is not to be taken into account for the purposes of this Subdivision if a pecuniary penalty has been imposed in respect of the benefit or instrument under this Act or any other law.
…
107—Reducing penalty amounts to take account of forfeiture and proposed forfeiture
(1)If a pecuniary penalty order relates to benefits derived from the commission of a serious offence, the penalty amount under the order is reduced by an amount equal to the value, at the time of the making of the order, of any property that is proceeds of the serious offence if—
(a)     the property has been forfeited, under this Act or any other law, in relation to the offence to which the order relates; or
(b)     an application has been made for a forfeiture order that would cover the property.
…
108—Reducing penalty amounts to take account of fines etc
(1)The court may, if it considers it appropriate, reduce the penalty amount under a pecuniary penalty order made in relation to a serious offence by an amount equal to a monetary sum paid, or payable, by the person in relation to the offence (or equal to any proportion of such a monetary sum).
(2)In this section—
monetary sum means a monetary amount paid by way of fine, restitution, compensation or damages.
…
3—Interpretation
(1)In this Act, unless the contrary intention appears—
benefit includes a service or advantage;
…
serious offence means—
(a)     an indictable offence; or
(c)     an offence against—
(i)section 68(3) of the Criminal Law Consolidation Act 1935; or
(ii)an offence against section 52, 53, 72 or 74 of the Fisheries Management Act 2007; or
(iii)section 99 of the Liquor Licensing Act 1997; or
(iv)a provision of the Lottery and Gaming Act 1936; or
(v)section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972; or
(vi)section 28(1)(a) or 41 of the Summary Offences Act 1953; or
(d)     a foreign offence declared by the regulations to be within the ambit of this definition;
…
unlawful activity means an unlawful act or omission—
(a)     that constitutes a serious offence; or
(b)     that would, if committed in this State, constitute a serious offence;
…
(2)A reference in this Act to an indictable offence includes an indictable offence of a kind that is required to be prosecuted, and dealt with by the Magistrates Court, as a summary offence under a provision of any Act.
Section 100 identifies matters to which the court is to have regard in assessing the value of benefits derived by a person. One such matter is evidence of the value of the person’s property before, during and after the commission of the offence (paragraph (d)). Section 98A provides that the court may treat as property of a person any property subject to his or her effective control and section 6 defines the meaning of “effective control”. Section 98A is an aid to proof of ownership of property: it creates a presumption that property subject to the effective control of a person is owned by that person. The presumption may be rebutted by proof that the person does not own the property. Paragraph (d) merely requires the court to have regard to changes in the value of the person’s property. Paragraph (d) does not stipulate how this impacts on the assessment: this is achieved instead by subsection 101(1) described below.
Another matter to which section 100 requires a court to have regard is the person’s income and expenditure before, during and after the commission of the offence or offences (paragraph (e)). Again paragraph (e) does not stipulate how this impacts on the assessment: this is achieved instead by subsection 101(3) described below.
Another matter to which section 100 requires a court to have regard is property that, in connection with the commission of the offence or offences, came into the possession or under the control of the specified person or another at his or her request or direction (paragraph (a)). Paragraph (a) does not stipulate how this impacts on the assessment but merely stipulates that it is a matter to which the court is to have regard. It does not have the effect that any property under the control of the person or another at his or her request or direction is to be treated as a benefit resulting from commission of the relevant offence.
Section 101 creates two rules to be applied in assessing the value of benefits derived by a person, namely:
1.the value derived is required to be assessed at not less than the amount of any increase in the value of the specified person’s property after the commission of the relevant offence (disregarding increases unrelated to the commission of the offence) and for this purpose the section 98A presumption also operates;[11]
2.a rebuttable presumption that the value derived is equal to the specified person’s expenditure during or after the commission of the relevant offence (less any expenditure resulting in the acquisition of property taken into account under the first rule).[12]
[11] Subsection 101(1) and (2).
[12] Subsection 101(3) and (4).
Sections 100 and 101 and 98A provide:
100—Evidence the court is to consider in assessing the value of benefits
In assessing the value of benefits that a person has derived from the commission of a serious offence or serious offences, the court must have regard to the evidence before it concerning—
(a)the money, or the value of property other than money, that, in connection with the commission of the offence or offences, came into the possession or under the control of—
(i)    the person; or
(ii)     another person at the person’s request or direction; and
(b)the value of any other benefit that, in connection with the commission of the offence or offences, was provided to—
(i)    the person; or
(ii)     another person at the person’s request or direction or in accordance with an arrangement entered into by the person; and
(c)if any of the illegal activity consisted of doing an act or thing in relation to a drug—
(i)    the market value, at the time of the offence, of similar or substantially similar drugs; and
(ii)     the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing; and
(d)the value of the person’s property before, during and after the commission of the offence or offences; and
(e)the person’s income and expenditure before, during and after the commission of the offence or offences; and
(f)any other matter the court considers relevant.
101—Value of benefits derived
(1)If—
(a)     an application is made for a pecuniary penalty order against a person in relation to a serious offence or serious offences; and
(b)     at the hearing of the application, evidence is given that the value of the person’s property during or after the commission of the offence or offences, or any other unlawful activity that the person has engaged in, exceeded the value of the person’s property before the commission of the offence or offences,
the court is to treat the value of the benefits derived by the person from the commission of the offence or offences as being not less than the amount of the greatest excess.
(2)The amount treated as the value of the benefits under this section is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to the commission of the serious offence or serious offences or any other unlawful activity that the person has engaged in.
(3)If, at the hearing of the application, evidence is given of the person’s expenditure during or after the commission of the serious offence or serious offences, or any other unlawful activity that the person has engaged in, the amount of the expenditure is presumed, unless the contrary is proved, to be the value of a benefit that was provided to the person in connection with the commission of the serious offence or serious offences.
(4)Subsection (3) does not apply to expenditure to the extent that it resulted in the acquisition of property that is taken into account under subsection (1).
98A—Property subject to a person’s effective control
For the purposes of this Division, the court may treat as property of a person any property that is, in the court’s opinion, subject to the person’s effective control.

The Act refers to and interacts with criminal assets confiscation legislation of other jurisdictions in Australia. The jurisdictions in Australia have enacted such legislation which, although not in uniform terms, is to substantially similar effect: Criminal Assets Recovery Act 1990 (NSW);[13] Confiscation Act 1997 (Vic);[14] Criminal Proceeds Confiscation Act 2002 (Qld);[15] Criminal Property Confiscation Act 2000 (WA);[16] Crime (Confiscation of Profits) Act 1993 (Tas);[17] Confiscation of Criminal Assets Act 2003 (ACT);[18] Criminal Property Forfeiture Act (NT);[19] and Proceeds of Crime Act 2002 (Cth).[20]
[13] Sections 27 and 28 address proceeds assessment orders being the equivalent of pecuniary penalty orders.
[14] Sections 58 to 74 address pecuniary penalty orders.
[15] Sections 77 to 89D address proceeds assessment orders being the equivalent of pecuniary penalty orders.
[16] Sections 15 to 20 address criminal benefits declarations being the equivalent of pecuniary penalty orders.
[17] Sections 20 to 24 address pecuniary penalty orders.
[18] Sections 79 to 98 address penalty orders being the equivalent of pecuniary penalty orders.
[19] Sections 73 to 80 address criminal benefit declarations being the equivalent of pecuniary penalty orders.
[20] Sections 115 to 150 address pecuniary penalty orders.
Section 12 of the Act provides that the Governor may by proclamation declare a law of the Commonwealth, another State or a Territory to be a corresponding law for the purposes of the Act.
Because 99(a)(i)(B) provides that benefits derived from the commission of a foreign serious offence can be the subject of a pecuniary penalty order, there is obvious potential for an overlap between a pecuniary penalty order made by a South Australian court and an equivalent order made by a court in another State or a Territory or a federal court. Section 104 prevents duplication of proceedings in two jurisdictions by providing that a benefit is not to be taken into account for the purposes of Subdivision 2 if a pecuniary penalty has been imposed in respect of the benefit or instrument under any other law. Subsection 107(1) provides that the amount of a penalty order is reduced by the value of property forfeited under any other law.
Section 217 provides for the registration and enforcement of orders made under corresponding laws.
Sentencing submissions and sentencing
Each of Mr Western, Mr Lawson and Mr Slaven was charged by separate counts with five counts of trafficking in a controlled drug, namely cannabis, between 1 June and 2 December 2011. Each count related to a payment sent by post by Mr Slaven to Mr Western or Mr Lawson of over $20,000 for six or seven pounds of cannabis sent by post by Mr Western or Mr Lawson to Mr Slaven or his cousin Jason Lackey. The date, money sum and cannabis quantity was as follows:

Count Date Money sum Cannabis amount

1 (Lawson),
27 (Slaven/Western) 1 June $21,600 6 pounds

5 (Lawson),
28 (Slaven/Western) 6 August $21,600 6 pounds

9 (Lawson),
29 (Slaven/Western) 2 September $21,600 7 pounds

15 (Lawson),
30 (Slaven/Western) 22 November $25,200 7 pounds

17 (Lawson),
31 (Slaven/Western) 2 December $20,200 6 pounds

Total $110,200 32 pounds

Each defendant pleaded guilty to these counts (they also pleaded guilty to additional counts summarised below). The factual basis of the pleas was set out in documents provided by the prosecutor to the sentencing Judge and accepted by the defendants (the sentencing outlines) together with submissions made to the sentencing Judge on behalf of the defendants and accepted by the prosecutor.
The sentencing outlines said that the five counts were representative counts in respect of a course of conduct between January and December 2011. The course of conduct involved Mr Western or Mr Lawson in South Australia sending to Mr Lackey or Mr Slaven in New South Wales parcels of cannabis in return for which Mr Slaven sent from Queensland by post parcels of cash to Mr Western or Mr Lawson in South Australia. Over the 12 month period 52 parcels of cash were sent by Mr Slaven to Mr Western or Mr Lawson.
The total cannabis supplied and cash paid over the period is not known but might be conservatively inferred to be over 300 pounds of cannabis and over $1,000,000 of cash. 18 of the 52 parcels of cash were opened by police in transit and were found to contain a total of $488,600. Telephone intercepts showed that 150 pounds of cannabis were posted from South Australia to New South Wales over four months between August and December 2011.
On the South Australian side, Mr Western sourced cannabis from his own suppliers and also grew his own cannabis and sent the cannabis sourced by him to New South Wales. Likewise Mr Lawson purchased cannabis from his own suppliers and also grew his own cannabis and sent the cannabis sourced by him to New South Wales. They each conducted their own independent cannabis enterprises but they coordinated the sending of packages of cannabis to New South Wales and the receipt of money from Queensland. Mr Western invested some of the cash received by him from Queensland in purchasing equipment, leasing properties and establishing cannabis plants to expand his own cannabis business. Likewise Mr Lawson invested some of the cash received by him from Queensland in purchasing equipment, leasing properties and establishing cannabis plants to expand his own cannabis business. There was no suggestion during the sentencing submissions that Mr Western and Mr Lawson carried on a joint business or invested any of the cash received from Queensland in a joint business.
On the New South Wales side, Mr Lackey was the one who on sold the cannabis to purchasers, Mr Slaven and Mr Lackey cooperated together but it was not known whether Mr Slaven sold the cannabis to Mr Lackey or whether they were working in a joint enterprise. However, it was clear that Mr Slaven and Mr Lackey were at arm’s length to Mr Western and Mr Lawson.
Mr Western, Mr Lawson and Mr Slaven also pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug, namely cannabis, on 13 December 2011. This related to 6 pounds of cannabis posted to Mr Lackey and collected by him on 14 December 2011 immediately before it was seized by police and Mr Lackey was arrested. No pecuniary penalty order was sought in respect of this transaction because the cannabis seized was forfeited. Mr Western also pleaded guilty to cultivating and trafficking in cannabis found in his possession on 14 December 2011. Mr Lawson also pleaded guilty to cultivating and trafficking in cannabis found in his possession on 14 December 2011. No pecuniary penalty orders were sought in respect of these counts because the cannabis seized was forfeited.
During sentencing submissions, Mr Western, Mr Lawson and Mr Slaven submitted to the sentencing judge that the price of the cannabis purchased by Mr Slaven varied depending on the quality of the cannabis, ranging from $3,100 to $3,600 per pound. This was consistent with the price of the five parcels the subject of the representative counts and was accepted by the prosecutor.
Mr Western submitted that, after meeting the cost of purchasing cannabis, he received approximately $800 per week. Mr Lawson submitted that he also received a net amount of approximately $800 per week. These figures were explicitly accepted by the prosecutor. The prosecutor accepted that Mr Western and Mr Lawson operated at the same level, had the same responsibility and there should be parity between their sentences (leaving aside any difference in their personal circumstances which was not in any event suggested). Likewise, each of Mr Western and Mr Lawson accepted these matters. The sentencing Judge sentenced Mr Western and Mr Lawson on this basis.
By contrast, Mr Western and Mr Lawson submitted that their level of return was less than that of Mr Slaven in respect of the five representative counts, albeit they pleaded guilty to additional counts to the counts to which Mr Slaven pleaded guilty. While the prosecutor accepted that Mr Slaven’s level of culpability was the same as that of Mr Western and Mr Lawson in respect of the five representative counts, the sentencing Judge expressed concern over this. Ultimately however the sentencing Judge accepted that the same head sentence was appropriate for all three defendants.
The sentencing Judge imposed sentence in February 2014. In her sentencing remarks she treated Mr Western and Mr Lawson on a level basis in accordance with the sentencing submissions. The Judge said:
The prosecution acknowledges that the principle of parity applies with respect to this matter. They also acknowledge that the parity principle will be limited where the charges in respect of different offenders are different… However, the prosecution also says that in all of the circumstances the differences in the charges need not translate to different sentences, having regard to the overall culpability of each offender….
In my view, the DPP has provided me with no adequate explanation as to why there are different charges and pleas in respect of all three offenders with some different maximum penalties notwithstanding the DPP’s assertion that they should, procedurally speaking, be treated equally in terms of their involvement in this criminal enterprise. I discern that the additional charges in respect of Mr Lawson and Mr Western relate to the police raids on 14 December 2011. They found growing cannabis and cannabis ready for trade in different places in South Australia. Mr Slaven was clearly complicit in the ongoing enterprise but, for some reason, the prosecution has not pressed charges in respect to his involvement….
… Insofar as the enterprise is concerned, I accept that, broadly speaking, you three had equal involvement in operating the enterprise it was large-scale, longstanding, high level organised cannabis dealing….
I do not think that the prosecution has dealt with these matters in a just fashion. By that I refer to the different offences proceed with and the applicable penalty range. It seems to me that the only fair way for me to proceed is to deal with you as if, broadly speaking, your involvement was similar and as if you had all been charged with similar offences. Notwithstanding the different maximum penalties and offences charged, the justice of the situation requires a degree of parity which is not reflected in the charges.
The sentencing Judge did not treat Mr Western and Mr Lawson as carrying on a joint cannabis business or as having invested cash received from Queensland in a joint cannabis business. The Judge’s sentencing remarks in this respect reflected the submissions made on behalf of Mr Western and Mr Lawson and not contradicted by the prosecutor. The Judge said:
Mrs Weston and Wilson, you grew cannabis at various locations, you organised others to grow cannabis and to supply you with the cannabis, and you purchased cannabis from other growers. As time progressed, you both, Western and Lawson, invested more money in growing cannabis yourselves, but hoping to obtain a greater share of the profit.
…
In respect of you, Mrs Lawson in Western, at the time of your arrests you are not found have access to, or possession of, very substantial assets or cash sums. Note that each of you assert that the profit made had been reinvested in the purchase of equipment and leasing other properties with a view to future cannabis production and profits and investment in future profits from cannabis crops. The submissions made to me about the net profit obtained by each of you must be seen in light of the decisions made to invest money in future cannabis crops in order to reap even greater rewards in the future.
The Judge imposed head sentences of imprisonment for ten years in respect of each defendant. She fixed a non-parole period of three years and nine months in respect of Mr Western and Mr Lawson, which was lower than the four years and six months fixed in respect of Mr Slaven because they were younger and had demonstrated better prospects of rehabilitation.
The hearing of the action
The action was instituted by the Director against Mr Western, Mr Lawson and others in January 2012 as an application for restraining orders pursuant to section 24 of the Act in respect of property owned by the defendants.
The action in respect of the restraining orders was a prelude to the Director seeking forfeiture of property owned by the defendants pursuant to section 47 of the Act. Ultimately the Director abandoned the claims for forfeiture against all defendants except in respect of a motor cycle owned by Mr Lawson.
On 14 April 2014 the Director filed an interlocutory application seeking a pecuniary penalty order pursuant to section 95 of the Act. The Director ought instead to have amended or sought permission to amend the summons to seek a pecuniary penalty order. However no such procedural point was taken in the District Court or on appeal and I ignore this procedural error on the part of the Director.
The interlocutory application was supported by an affidavit by a paralegal employed in the Director’s office which exhibited the certificates of record in respect of the criminal proceedings against Mr Western and Mr Lawson and the sentencing remarks of the sentencing Judge.
The action came before the confiscation Judge for directions on 8 May 2015. The Judge requested the Director to file and serve the transcript of the proceedings before the sentencing Judge, saying that it was not necessary that it be exhibited to an affidavit. The Judge identified a preliminary issue being whether it was open for any party to go behind the findings on sentence and whether res judicata applied in respect of those findings. The Judge directed written submissions on res judicata and listed the preliminary issue whether res judicata applied for hearing on 26 June 2015.
I interpolate that, while the Judge referred to res judicata, the relevant doctrine (if any was applicable) was not res judicata but issue estoppel because the Director was contending that Mr Western and Mr Lawson were bound by “findings” made by the sentencing Judge in her sentencing remarks. For the reasons given below, no issue estoppel was capable of arising out of the sentencing remarks.
The Director filed written submissions on 12 June 2015. The Director said that he sought a pecuniary penalty order against Mr Western and Mr Lawson for $488,600. The sum of $488,600 was the total cash contained in the 18 parcels opened by the police in transit (as opposed to the sum of $110,200 contained in the five parcels in respect of which Mr Western and Mr Lawson pleaded guilty and were convicted). The Director made a bald submission that the sentencing Judge’s finding that the cash in the intercepted parcels totalled $488,600 gave rise to an issue estoppel relying on Blair v Curran.[21]
[21] (1939) 62 CLR 464 at 531 per Dixon J.
Mr Western filed written submissions on 19 June 2015. He submitted that the sentencing Judge’s findings did not determine the question. He submitted that the issue was what personal benefit was received by Mr Western and what personal benefit was received by Mr Lawson. He referred to the decision of the Victorian Court of Criminal Appeal in Director of Public Prosecutions v Nieves[22] in which it was held that each of the three respondents should pay one third of the overall benefit received.
[22] [1992] 1 VR 257.
On 26 June 2015 the preliminary issue of “res judicata” came on for hearing before the confiscation Judge. Mr Lawson was represented by his mother Mrs Lawson. There was debate whether the overall benefit to be considered was $488,600 (according to the Director) or $110,200 (according to Mr Western and Mr Lawson). The Director submitted that Mr Western and Mr Lawson had joint and several responsibility. Mr Western submitted that, whichever figure was used as the overall benefit, it needed to be divided between Mr Lawson and Mr Western.
The Judge suggested that, unless the parties opposed this course, regard should be had to the source material before the sentencing Judge. Each party agreed with that course. The Judge said that the question what evidence was to be adduced was deferred pending a ruling on the res judicata preliminary issue. The matter was adjourned for further hearing on 3 August 2015 with the parties to make further written submissions.
On 3 August 2015 the transcript of submissions before the sentencing Judge was referred to by all parties on the assumption that it was part of the materials before the confiscation Judge. The transcript was not formally tendered. Although parties handed up to the Judge extracts from the transcript of submissions before the sentencing Judge, this was done purely for the assistance of the confiscation Judge and on the premise previously established that all of the transcript was before the confiscation Judge. It is important to note that, as the confiscation Judge himself observed, it would not have been possible to rely on the sentencing remarks by the sentencing Judge (if they otherwise comprised evidence admissible on a confiscation application or if the parties were bound by res judicata or issue estoppel) in the absence of the sentencing submissions to provide a context for and explain the sentencing Judge’s sentencing remarks. The matter was adjourned for further written submissions.
On 7 October 2015 the matter was called on for further submissions. Submissions were made along previous lines about whether the Act provided for joint and several liability in respect of co-offenders. Submissions were made whether the starting point of the overall benefit to be considered was $488,600 or $110,200. The matter was adjourned for further written submissions.
The manner in which the Judge heard the action was unsatisfactory in several respects. First, having determined to decide as a preliminary issue the question of “res judicata” arising from the sentencing proceedings, the Judge never determined that question or the related question whether issue estoppel arose from the sentencing remarks and allowed submissions to segue onto other issues without ever listing the matter for a trial on all issues.
Secondly in fact no issue estoppel arose in the confiscation proceeding from the sentencing Judge’s sentencing remarks. In a case (such as the present) where there is no disputed facts hearing, no evidence is given during the hearing that results in findings by a sentencing judge on contested facts. Sentencing remarks depend instead on sentencing submissions which inherently lack the precision that applies to evidence. Commonly the Director is not in a position to take issue with submissions put by defendants because the submissions relate to matters of which the Director has no knowledge. When there are multiple defendants, submissions made by different defendants frequently do not dovetail with each other. There is typically no defined issue, no contest and no evidence on the basis of which and in the context of which a sentencing judge could make a definitive finding capable of giving rise to issue estoppel in subsequent proceedings between the same parties. In sentencing remarks, a sentencing judge does not purport to decide issues in this manner. Sentencing remarks are entirely different in nature to findings of fact made by a trial judge (whether in civil or criminal proceedings) based on evidence.
Thirdly the Judge dealt informally with the reception of “evidence”. The Judge acted on the basis that the sentencing Judge’s sentencing remarks, transcript of sentencing submissions and materials before the sentencing Judge were before the confiscation Judge without their being tendered or categorically identified. The Judge ought to have required a party who wished to do so to tender these documents, ascertained on what basis and for what purpose they were being tendered, ascertained whether there were any objections to the tender, ruled on any objections and if found to be admissible on any basis or for any purpose ought formally to have received them as exhibits and identified the basis on which and purpose for which they were admitted. In reality it appears that these materials were only being put forward by the Director on the premise (never established) that the sentencing remarks gave rise to an issue estoppel.

Fourthly, if res judicata (or issue estoppel) did not arise from the sentencing proceedings (and the confiscation Judge never ruled on that question and ought to have ruled against the Director’s contention), the sentencing Judge’s sentencing remarks and the other sentencing materials were inadmissible because they were rank hearsay. Parties can of course agree that inadmissible evidence is to be admitted but this did not occur in the present case because the sentencing remarks were only put forward by the Director on the basis they gave rise to res judicata or issue estoppel.
Fifthly the Judge conducted the trial informally. The Judge heard a continuum of submissions from the parties on a back and forth evolutionary basis. The Judge did not require the Director to open his case or adduce (or identify) evidence upon which the Director relied. The Judge did not require the defendants to do likewise. The Judge did not hear conventional closing addresses. A judge has of course a discretion how a trial is to be conducted and may depart from the conventional order of trial. However the manner in which this trial was conducted did not result in an efficient definition of the issues or of the parties’ cases or presentation by each party of the evidence upon which that party wished to rely.
Finally as a corollary of the above matters the Judge conducted the trial as if it were an adjunct to the criminal proceedings. Section 218 provides that an action for a pecuniary penalty or other order under the Act is a civil proceeding governed by the rules of evidence applicable in civil proceedings. A proceeding under the Act is not required to be brought in the same court as the criminal proceeding in respect of the serious offence in question although there are practical reasons why it may be expected that the Director would bring the proceeding in the same court. A proceeding under the Act is separate and distinct from the criminal proceeding.
During the course of the hearings, Mr Western indicated on several occasions that, depending on the Judge’s ruling on the preliminary issue, he wished to adduce evidence. The manner in which the proceeding was conducted resulted in a point never being reached at which he was called on to adduce evidence.
Trials of actions under the Act should be conducted in accordance with the normal procedures (subject to variation in the discretion of the trial judge) applicable to ordinary civil proceedings and on the basis that they are proceedings independent of the criminal proceedings which precede them.
The Judge’s reasons
The Judge referred to the line of authority in Australian decisions interstate beginning with Director of Public Prosecutions v Nieves.[23]
[23] [1992] 1 VR 257.
The Judge then said:
Section 100(a)(i) and (ii) extend the concept of control to benefits acquired by ‘another person at the person’s request or direction’, and to benefits acquired ‘in accordance with an arrangement entered into by the person’.
I interpolate that the Judge misread section 100(a)(ii) in two respects. First and most fundamentally, while section 100(a)(ii) refers to money or other property coming into the possession or under the control of “another person at the person’s request or direction”, it does not contain the words “in accordance with an arrangement entered into by the person”. The latter expression only appears in paragraph (b) which has no application to money or other property. Secondly section 100(a)(ii) does not extend the concept of control to benefits acquired by anyone but refers to money or other property “coming into the possession or under the control” of the specified person or another person at the specified person’s request or direction.
The Judge then proceeded as follows:
The former expression adopts the language of agency and is apt to apply to innocent agents such as couriers, friends or nominees acting as a conduit of the offender. The latter expression is more akin to that of complicity and is therefore more apt to apply to accomplices. It is well understood by the criminal law that when two or more persons reach an understanding or arrangement to commit a crime, they are equally liable for the acts constituting that crime, regardless of what part each played in its commission, that is to say they are acting in concert in committing the crime. The language of s 100(a)(ii) of the Criminal Assets Confiscation Act is consistent with importing these concepts.
As so understood, it emerges that s 95 coupled with s 100(a) of the Criminal Assets Confiscation Act, are to be read as applying to offenders (all other pre-requisites being met) having:
1.possession or control of ‘derived benefits’ from the commission of an offence, or offences;
2.possession or control of ‘derived benefits’ indirectly from the commission of an offence though the agency of another person at the offender’s request or direction, that is to say through the agency of an innocent agent; or
3.possession or control of ‘derived benefits’ indirectly from the commission of an offence in which the offender is complicit, that is as a co-conspirator, or joint criminal adventurer with persons acting in criminal concert.
(Citations omitted)
The Judge went on to say that this construction coincidentally was supported by decisions on confiscation legislation in the United Kingdom and referred to the decision of the House of Lords in R v May[24] and subsequent decisions.
[24] [2008] UKHL 28, [2008] 1 AC 1028.
The Judge then turned to the facts of the present case and concluded:
Based on the remarks of the sentencing Judge and the underlying evidence on which the sentences were based, all defendants including the two respondents, might well have been parties to a joint criminal enterprise to traffic in cannabis. As such they might therefore have been parties to an ‘arrangement’ in connection with the commission of those offences, within the meaning of s 100(b)(ii) of the Criminal Assets Confiscation Act.
[The Judge observed that the charges were presented on separate informations but considered this a formality]
…
Accordingly it is appropriate to make a pecuniary penalty order against Mr Western with respect to those counts in the combined sum of $110,200, being the total of benefits derived from the commission of these offences.
Is joint and several liability imposed?
The appellant contends that the Judge erred in construing section 100(a)(ii) as imposing joint and several liability on parties to a joint criminal enterprise.
As observed above, the Judge misread section 100(a)(ii), believing that it referred to benefits acquired “in accordance with an arrangement entered into by the person”. This error vitiates the Judge’s construction of the Act.
On appeal the Director submits that, considered from first principles, on its proper construction the Act does impose joint liability on parties to a joint criminal enterprise. I turn to consider that issue of construction independently of the Judge’s reasoning.
The key provisions are sections 95(1) and 99 which relevantly provide (leaving aside deductions under sections 107 and 108):
A court must, on application by the DPP, make an order … requiring a specified person to pay to the Crown an amount determined under Subdivision 2 if satisfied that—
(a)the person has been convicted of, or has committed, a serious offence; and
(b)the person derived benefits from the commission of the offence.
and
The amount that a person is ordered to pay under a pecuniary penalty order … is determined by—
…
(i)assessing under this Subdivision the total value of the benefits the person derived from—
(A) the commission of the serious offence; and
(B) the commission of any other offence that constitutes unlawful activity;
Starting with the text of subsections 95(1) and 99, a pecuniary penalty order is to be made against a specified person by reference to the benefits derived by that person from the commission of the relevant offences. Pecuniary penalty orders operate at an individual level. The text strongly suggests that the court is to assess the personal benefits derived by the specified person rather than the collective benefits derived by a group of persons where they combined to commit the relevant offence.
These provisions and Part 5 Division 1 as a whole do not refer to, or use language indicative of, joint (or joint and several) liability. If the legislature had intended to impose joint (or joint and several) liability, it may be expected that it would have said so.
Moreover, a complex and cohesive set of rules have been developed by the general law (common law and equity) to govern rights and liabilities in those cases in which the general law imposes joint, several, or joint and several liability on persons acting in combination. These include rules as to whether the liability is joint,[25] several[26] or joint and several.[27] They include rules whereby persons jointly liable who discharge (in whole or in part) a joint liability are entitled to recover contribution from those with whom they are jointly liable.[28] They include rules protecting persons jointly liable from the plaintiff releasing other persons with whom they are jointly liable.[29]
[25] For example liability of partners in contract is joint: Glanville Williams, Joint Obligations, 1949, p 39 citing Wilmer v Currey (1848) 2 De G & Sm 347; 64 ER 156; Levy v Sale (1877) 37 LT(NS) 709 (QB); Re Smith, Fleming & Co ex parte Harding (1879), 12 Ch. D 557.
[26] Williams, Joint Obligations, 1949, p 40 citing Collins v Prosser (1823), 1 C & C. 682; 107 ER 250.
[27] See for example Re Broons [1989] 2 Qd R 315 at 316 per Moynihan J.
[28] Williams, Joint Obligations, 1949, p 163 citing Hitchman v Stewart (1855) 2 Drewry 271, 61 ER 907. See also Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [14]-[17] per Gaudron ACJ and Hayne J and [38] per McHugh J.
[29] Williams, Joint Obligations, 1949, p 81 citing Noke v Ingham (1745) 1 Wils KB 89, 95 ER 508.
If the legislature had intended to impose joint or joint and several liability, it would have been necessary for the legislature to provide which is being imposed: is it joint or is it joint and several liability? It may be expected that it would have enacted rules addressing the matters the subject of the general law rules in respect of general law liabilities. There is no basis to assume that the common law and equitable rules would apply to this sui generis statutory liability. For example, the common law and equitable doctrines of contribution do not enable co-offenders in a criminal enterprise to recover losses from each other. [30]
[30] See for example Burke v LFOT Pty Ltd [2002] HCA 17, (2002) 209 CLR 282 at [17] per Gaudron ACJ and Hayne J.
Turning to the context of subsections 95(1) and 99 within Part 5 Division 1, the other provisions in the Division support the construction that attention is given to the benefits derived by the specified person. Subsections 101(3) and (4) provide that the amount of the specified person’s expenditure during or after the commission of the relevant offence is presumed to be the value of the benefit provided to the specified person in connection with the commission of the relevant offence. These provisions refer only to the specified person’s expenditure and not to expenditure by all persons acting in concert. These provisions strongly indicate an approach to assessment of the derived value by reference solely to the personal benefit received by the specified person. They are inconsistent with attributing joint liability to a specified person for benefits received by all persons acting in concert.
Similarly, subsections 101(1) and (2) require the value derived to be assessed at not less than the amount of any unexplained increase in the value of the specified person’s property after the commission of the relevant offence. This strongly indicates an approach to assessment of the derived value by reference solely to the personal benefit received by the specified person.
Similarly, subsection 108(1) provides for reduction of the amount of the pecuniary penalty by the amount of a fine paid or payable by the specified person. This strongly indicates an approach to assessment of the derived value by reference solely to the personal benefit received by the specified person. If the legislature had intended to impose joint liability, it may be expected that it would have provided for reduction by the amount of the fine paid by any person acting in concert with the specified person.
Section 100(a) does not indicate an intention to impose joint liability. Section 100(a) provides that one of the matters to which the court is to have regard is the money or other property that came into the possession or under the control of the specified person or another person at his or her request or direction in connection with the commission of the relevant offence. The manifest purpose of this provision is to catch property which the specified person secretes in the possession of someone else. This provision will have application in cases in which there is a single offender but the offender secretes the proceeds of the crime in the possession or under the control of someone else.
Turning to the evident purpose of sections 95(1) and 99 and Part 5 Division 1 as a whole, pecuniary penalty orders are punitive in nature. The amount payable by the offender is not measured by reference to the profit made by the offender by committing the crime. Rather it is measured by reference to the gross benefit derived from the commission of the offence. Pecuniary penalty orders therefore differ fundamentally in nature from the equitable remedy of an account of profits. The amount payable by the offender is not measured by reference to the loss suffered by a victim of the offence. Pecuniary penalty orders therefore differ fundamentally in nature from the common law and equitable remedies of damages and compensation. The nature of pecuniary penalty orders as punitive is further confirmed by subsection 108(1) which provides for reduction where appropriate of the amount of the pecuniary penalty by the amount of any fine paid or payable by the offender.
Given that the purpose of pecuniary penalty orders is punitive, is to be expected that the amount of the penalty imposed on the specified person is to be measured by reference to the personal benefit received by the specified person and not to the total benefit received by those acting in concert.
The text, context and evident purpose of sections 95(1) and 99 all indicate that the amount of the pecuniary penalty is to be measured by reference to the personal benefit received by the specified person.
This construction is supported by Australian authorities which have considered the question in relation to counterpart legislation interstate.
In R v Fagher[31] Fagher supplied cannabis oil to an undercover police officer for $14,500. Fagher was acting in concert with a co-offender who was the supplier of the cannabis oil, to whom he paid $12,500, and he retained $2,000. The District Court Judge declined to make a pecuniary penalty order. On appeal, the Director contended that a pecuniary penalty order should have been made for $14,500 or alternatively for $12,000. Hunt and Allen JJ (Roden J agreeing in the result but for different reasons) in the New South Wales Court of Criminal Appeal held that the value of the benefit derived was $2,000 and not $14,500 and an order should have been made for payment of the lesser amount. Hunt J referred to decisions on the interpretation of similar but not identical provisions in the Customs Act 1901 (Cth) and said:
The received interpretation of those provisions in the Customs Act 1901 (Cth) is that the benefits to be assessed are the gross, not the net, benefits, and that it is the value of the benefits derived by the particular offender which must be considered – that is, his share of the gross proceeds and not the total monies handled by him before those proceeds are divided.
…
In my opinion, the interpretation given to the Federal Act must also be applied to the State Act. On that basis, once the Judge in the present case accepted the evidence of the respondent that his share of the gross proceeds was only $2,000, that was the value of the benefits which the respondent received.[32]
[31] (1989) 16 NSWLR 67.
[32] At 77,78. (Emphasis added)
Allen J said:
The key to the understanding of s 10 and s 11 is that what they are concerned with is the advantage or profit for himself which the defendant has obtained from the commission of the offence…
Section 11(2) provides that in assessing the value of the advantage or profit for himself which the defendant has obtained from the commission by him of the offence the Court is to have “regard to information before the court concerning or any” of the number of matters listed in the ensuing paragraphs of the subsection. The matters so listed afford valuable statutory guidance as to how the Court is to go about assessing the value of the advantage or profit which the defendant has obtained by reason of him having committed the offence. But they do not alter the task which the Court has to perform. It remains the assessment of, to use statutory language, “the value of the benefits derived by the defendant by reason of having committed” the offence (emphasis supplied). That remains the task of the court notwithstanding that one of the matters contained in the list is “the money… that came into the possession… of the defendant” (par (a)).[33]
[33] At 78,79.
In Director of Public Prosecutions v Nieves,[34] Nieves, Athanasiadis and Italia acted in concert in connection with the sale by Nieves to an undercover police officer of drugs for $21,000. Nieves, Athanasiadis and Italia pleaded guilty to trafficking. The prosecutor applied for a pecuniary penalty order under sections 5 and 12 of the Crimes (Confiscation of Profits) Act 1986 (Vic) in the sum of $21,000 against Nieves, Athanasiadis and Italia. Those provisions were in similar terms to sections 95 and 99 of the Act. The County Court Judge declined to make an order because there was no evidence as to the amount received by each defendant. The Court of Criminal Appeal held that the Victorian Act did not impose joint liability and the County Court Judge should have assessed the benefit as $7,000 to each defendant in the absence of evidence of a different sharing arrangement. Kaye, Fullagar and Hampel JJ said:
[34] [1992] 1 VR 257.
The subject of a pecuniary penalty order is the value of the benefit derived by a person from the commission of the offence of which he or she is convicted.
…
The receipt of a sum of money is the benefit which a convicted person derives from the commission of the offence of which he or she has been convicted. The value of the benefit is the amount of money the convicted person has so received.
…
The form of order sought by the director as appears from his application was that the respondents pay jointly and severally a pecuniary penalty equal to the benefits derived by them. The statute is silent about the form and incidence of an order in circumstances where there are two or more persons who have derived benefits resulting from the same offence of which they have both or all been charged and convicted.
…
… in our opinion an order made under s. 12 of the Victorian Act is in the nature of a penalty to which a convicted person is subjected in consequence of his commission of the offence of which he or she is been convicted.
…
… The penal purpose of the order is achieved by ordering each convicted person to pay a specific amount, determined by his or her respective benefit derived from the offence, and by recovering the amount from each. In the absence of evidence, the court may assume that each convicted person who was a party to the offence share equally the benefits derived from the joint offence.[35]
[35] At 261, 262, 263 and 264.

Above we have referred to ss 95 and 99 and that, in our view, the inquiry is into the total value of the benefits that the specified person derived from the serious offence or offences upon which the application is predicated and from the commission of any other offence that constitutes unlawful activity. The question is, in effect, what did the specified person get from his or her offending, where that question is to be understood as requiring the valuation of the improved position or betterment that the specified person has achieved from the serious offence or other unlawful activity. If this is right no question of apportionment arises. That does not mean that difficult questions regarding joint proprietary interests will not arise, but the point is that the statutory command requires a valuation of the specified person’s derived benefit.
We do not understand the confiscation Judge’s order to be anything different in that it is an order made against the appellant solely and not one for which Mr Slaven and Mr Lawson are jointly and severally liable along with the appellant. In our view the real question raised by the appellant is whether the confiscation Judge has correctly assessed the value of the benefits derived by the appellant from the serious offences to which he pleaded guilty.
Complexity in the assessment of the total value of the benefits derived by a person from his or her commission of a serious offence and any other offence that constitutes unlawful activity is introduced by ss 98A, 100 and 103. Section 98A provides:
For the purposes of this Division, the court may treat as property of a person any property that is, in the court’s opinion, subject to the person’s effective control.
The meaning of effective control is dealt with by s 6. It provides:
(1)For the purposes of this Act, the following principles apply when determining whether property is subject to the effective control of a person:
(a)     property may be subject to the effective control of a person whether or not the person has an interest in the property;
(b)     property that is held on trust for the ultimate benefit of a person is taken to be subject to the effective control of the person;
(c)     if a person is one of 2 or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be subject to the effective control of the person:
(d)     if property is initially owned by a person and, within 6 years (whether before or after) of an application for a restraining order or a confiscation order being made, is disposed of to another person without sufficient consideration, then the property is taken still to be subject to the effective control of the first person;
(e)     property may be subject to the effective control of a person even if one or more other persons have joint control of the property.
(2)In determining whether or not property is subject to the effective control of a person, regard may be had to—
(a)     shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and
(b)     a trust that has a relationship to the property; and
(c)     family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.
The respondent points to ss 98A and 6(1)(e) as being engaged in this case. The contention is that the content of each of the five parcels was subject to the effective control of the appellant despite Mr Lawson having joint control of that property. The concept of joint control may be understood as encompassing the situation where two or more persons possess the power to control access by others to property; if such circumstances are proven on the balance of probabilities the property may be treated as being the property of the person in effective control.
Section 98A is in the nature of a fiction. Irrespective of whether the subject property is the property of the person against whom a pecuniary penalty order is sought, it may be treated as being so provided the court is satisfied on the balance of probabilities that the property is subject to the person’s effective control. In our view s 98A may also be considered a power and not a power coupled with a discretion. Thus, if effective control is established on the balance of probabilities a court will treat the property as belonging to the person subject of the application in the absence of evidence to the contrary.
Here the evidence establishes that the parcels were sent to South Australia for the benefit of both the appellant and Mr Lawson who were co-venturers. The finding that the parcels were collected by either Mr Lawson or the appellant, or someone connected with them, is consistent with joint control. Both Mr Lawson and the appellant had access to and control over the parcels to the exclusion of others prior to any distribution. In our view the evidence supports a finding on the balance of probabilities of effective control on the part of the appellant of the five parcels.
The appellant did not give or call any evidence as to the benefits he derived from his commission of the offences with which he was charged or of any distribution of the money contained in the five parcels. The finding that the proceeds of the offending were reinvested by the appellant and Mr Lawson amounts arguably to one of a joint decision to, in effect, grow the illegal business in which they were both concerned for their mutual benefit. That is, it is a finding consistent with a sizeable portion of the proceeds being reinvested for the mutual benefit of the appellant and Mr Lawson. Such conclusion would support treating the five parcels as the joint property of the appellant and Mr Lawson. Here it must be borne in mind that under s 103(a) expenses or outgoings are not to be subtracted from an assessment of the value of the benefit derived by a person from the commission of a serious offence or offences.
Nieves case may be distinguished on the basis that it was concerned with a different statutory regime. The confiscation scheme may be interlocking, but the legislation of the integers of the Federation is not uniform. Further the confiscation legislation has evolved in all jurisdictions since first introduced in the 1980’s. In any event, we would want to hear further argument on the validity of the assumption applied. We find nothing in the Confiscation Act to support it. Whilst those who take part in a joint enterprise are equally liable for the outcome according to the criminal law, it does not follow that they derive benefits from that outcome in equal shares. Accordingly, we disagree with the confiscation Judge’s approach.
We accept that generally speaking the task of valuing an offender’s derived benefits will, because of the very nature of crime, be difficult. However, under the Confiscation Act that task is made easier by ss 98A, 100 and 103. Those sections suggest exactitude is not required and that a court should adopt a robust, practical approach in arriving at a concluded view as to the value of derived benefits. Further, having regard to the connection between specified person and property sufficient for inclusion of the value of the property within their derived benefits contemplated by ss 98A, 100 and 103(b), those sections suggest that if detail is to be descended into it will move from the specified person.
In our view it was open in this case to the confiscation Judge applying s 98A to conclude that the five parcels were within the effective control of the appellant and thus may be treated as his property. That property constituted his derived benefits from his offending.
If the evidence stopped there an order could be made against the appellant in the sum of $110,200. But the evidence did not stop there. The factual conclusions arrived at support the inference that distributions did occur and reinvestment did occur. That inference applies to the five parcels subject of counts 1, 5, 9, 15 and 17 just as it does to all others. Further, effective control was only exercised for the purpose of reinvestment or distribution. There is no evidence as to what proportion of the five parcels was distributed between Mr Lawson and the appellant and what proportion was reinvested. However the Director’s case, relying as is does on the sentencing Judge’s findings, accepts that a distribution and/or reinvestment of the money contained in the five parcels was likely.
We do not think s 100(b)(ii) has the consequence that a distribution between joint venturers necessarily results in the amount distributed to one being included in the derived benefits of the other and vice versa. The chapeau to s 100 does not state that the value of any other benefit that, in connection with the commission of the serious offence or serious offences, was provided to another person in accordance with an arrangement entered into by the specified person shall or must be included in the valuation of the specified person’s derived benefits. The instruction is to have regard to the evidence of such benefit conferred in assessing the value of the benefits that the specified person derived. Such evidence may reveal that the conferred benefit is a derived benefit. It may suggest the contrary.
We return to the Director’s case. As mentioned that case accepts that a portion of the money sent to South Australia was likely to have been distributed amongst the joint venturers and, equally likely, that a portion was reinvested. In such circumstances it would be wrong to conclude on the balance of probabilities that the appellant’s derived benefits from the five parcels was equal to $110,200.
The Director ran his case on the basis that each of the appellant and Mr Lawson should be joint and severally liable for an order in the total amount of the total benefits derived from their offending. Having conducted the case on that basis, the Director did not attempt to prove the derived benefit that each man enjoyed.
For his part the appellant contested the matter on the basis that if the application was within time, derived benefits were equal to the value of the total of the money contained in the five parcels which, applying Nieves, should be divided equally between the appellant and Mr Lawson.
The result is that this Court finds itself in the unsatisfactory position where arguably the only evidence it has as to the appellant’s derived benefits indicates that it is more likely than not that the greater proportion was re-invested than was distributed between the venturers. We accept that is not the only interpretation open on the sentencing remarks.
Assuming reinvestment was made into what was, in effect, a joint venture, reinvestment may be taken to have benefitted each man equally. If that is right, it is arguable that the amount reinvested is not to be given a value, divided in equal parts and one part then attributed to each man’s derived benefits. Rather the total of reinvestment is to be attributed to each.
However the way in which the matter was run before and by the confiscation Judge has the consequence that there is nothing before this Court that allows it to truly value the appellant’s derived benefits. How much was distributed? How much was re-invested? To answer these questions on the material before the confiscation Judge would involve speculation.
We have scrutinised the transcripts of the various hearings before the confiscation Judge on 1 May 2015, 8 May 2015, 26 June 2015, 3 August 2015, 26 August 2015 and 7 October 2015. At no time did either of the parties tender the material that was before the sentencing Judge (including the transcript of submissions made before that Judge), nor did they consent to the confiscation Judge being at liberty to roam across such material. Such references as were made were specific and targeted to particular questions, most significantly how the sentencing Judge arrived at the overall figure of $488,600. As the matter unfolded ultimately the forensic contest was fought over the conclusions that could be drawn from the sentencing Judge’s remarks upon sentencing and the application of the Confiscation Act thereto. It was not fought on the basis that everything before the sentencing Judge was before the confiscation Judge. This explains why the debate on the hearing of this appeal was similarly confined.
Having scrutinised the transcripts of the various hearings before the confiscation Judge we see no denial of procedural fairness. Indeed, from 26 August 2015, when defence counsel had the matter called on for fear that an order made in the amount of $488,600 for which his client might be jointly and severally liable might risk his client’s home, it was clear that the appellant knew that the confiscation Judge was intending to determine all issues that had been raised including the Director’s substantive application for a pecuniary penalty order in the sum of $488,600. That his client was at risk was made abundantly clear. It was repeated on 7 October 2015 and an opportunity given to make submissions on all issues. At no time was the appellant prevented from giving or calling evidence. It appears a forensic decision was made not to. Thus, by this time, it was also clear that the factual basis for determining the derived benefits of the appellant and Mr Lawson was confined to the conclusions that could be drawn from the sentencing Judge’s remarks upon sentencing and all parties acted on that basis.
We have serious misgivings about the approach taken by the Director.[76] On sentencing the State and the convicted offender are not joined in an issue. It is also the case that the manner in which the confiscation proceeding unfolded and the issues identified and debated was unsatisfactory. The supposed factual basis provides, in fact, no sufficient basis upon which to determine the appellant’s derived benefits. We agree with Blue J that the sentencing remarks were strictly inadmissible and absent agreement of the parties, the remarks could not bind the confiscation Judge. We are left in the position where the matter must be remitted for rehearing.
[76] Hollington v Hewthorn [1943] 1 KB 587.
Conclusion
We would allow the appeal, set aside the order of the confiscation Judge, and remit the matter for rehearing.

Count	Date	Money sum	Cannabis amount
1 (Lawson), 27 (Slaven/Western)	1 June	$21,600	6 pounds
5 (Lawson), 28 (Slaven/Western)	6 August	$21,600	6 pounds
9 (Lawson), 29 (Slaven/Western)	2 September	$21,600	7 pounds
15 (Lawson), 30 (Slaven/Western)	22 November	$25,200	7 pounds
17 (Lawson), 31 (Slaven/Western)	2 December	$20,200	6 pounds
Total	$110,200	32 pounds