Addison, Re [1991] QSC 288

TRANSCRIPT OF . PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or s0ld without the written authority of the Director, State Reporting Bureau.) ~EDco·;;~ I Court Reporting Bureau i SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION _ Date, ...?_~~FP. 'I;, ,j t ja;.w, • SHANAHAN AJ MOTION ~o 361 of 1991 IN THE MATTER OF Part II of the Crimes (Confiscation of Profits) Act 1989-1990 and IN THE r-1ATTER OF an application by the Director of Prosecutions for a pecuniary penalty order against BRETT FARRELL ADDISON BRISBANE .. DATE 17/9/91 9.30 A.M. JUDGMENT. 1 -- 1 of 6 -- 10 20 ·rru:r91. HIS HONOUR: . J U!JGNEl'<'l'' Y£.~1fV.-Ji__ Cf?{~¼r-· This is · an application, by way. of notice otf/' motion, for an order that Brett Farrell Addison pay, to the Crown pursuant toss 6 and 13 of the-Crimes (Confiscation of Profits) Act 1989-1990 a pecuniary penalty in the sum of $3,300 being in respect of the benefits derived by him as a result of committing-a serious offence. The notice of motion seeks an order that the respondent pay the applicant's costs of the application. The respondent pleaded guilty on 8 April 1991 to four acts of supplying a dangerous drug, marijuana. He was imprisoned. The application is made pursuant toss 6 and 13 of the Act. Bys 13(1) (a), on an application pursuant to s 6(1) (6) for an order in respect of the benefits derived by ·-"---=~~·'-"t=h,._,,e _12§r_§9:q __ 9:e... 3t xesμl t __ 9f comI!).J, ttj.:rig th,§:! offence, _the Court may assess the value of those benefits. 30 40 50 60 The legislation was considered by Macrossan CJ in The Queen v. Maree Louise Ashworth (1991 - Motion no. 164). I respectfully adopt his interpretation of the Act. The word "may" used ins 13(1) (a) is permissive. It is not mandatory. Avery full discretion resides in the Court which will fall to be exercised before an order of this type is made. Section 14(1) prescribes that the value of the benefits derived by the ·•defendant from the commission of an offence shall be assessed having regard to the evidence before it concerning all or any of the matters set out ins 14(2). Bys 6(4), "The Court shall take into account in determining the application any evidence given in a proceeding against the person for the of fence. 1' By s 14 ( 8) 'of the Act, "In calculating for the purposes of G 214-Govt. Printer, Old. 2 lO 2.0 30 40 50 60 -- 2 of 6 -- 10 20 40 so 60 ·-170991········•·. an application for a pecuniary penalty order-the value of any benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of the person in connection with the commission of the offence or offences shall be disregarded." Bys 67(1), "Any question of fact to be decided by a Court on an application under this Act is to be decided on the balance of probabilities." As Macrossan CJ said in Ashworth's case (supra), "Once the basis for assessment has been ascertained, the Court in practice will often have to do the best it can with evidence which is incomplete and unreliable." Some matters are not in dispute. In paragraph 4 of his affidavit, the respondent says:- "I do not dispute that on the 15th day of May 1990 .:: I received $600 for my part in the supply of marijuana-to Gregory Green ..... -J .. fur.ther do not dispute that on the 25th day of May 1990 I received-$200 for my part in the supply of mariju_ana to Gregory Green .. " · Some matters·arE in ~ispute.In paragraph 5 of that affidavit, he says:- "I do dispute that I am liable for a pecuniary penalty order in the sum of $2,500 received by me as a result of a supply on the 10th day of April 1990 • II In paragraph 7, he says:- "On the 10th day of April 1990 I supplied 185.1grams of marijuana for $2,500 to Greg Green. That marijuana was the total. amount which I had for my own personal supply. The marijuana had been given to me by Will Banks and Mick Egan (the cultivatorsof the marijuana in this matter). Will always encouraged me to smoke marijuana so that I would not revert to my use of heroin." In paragraph 8 of the affidavit, he said:- "When Greg Green pressured me to supply him withmarijuana., I thought that I would give him my own supply and hope that he would leave me alone thereafter. I then give the $2,500 back to Will G 214-Govt. Printer. Qld. 3 10 20 30 40 50 60 -- 3 of 6 -- 10 2C 170991 JUDGMENT Banks and -received nothing in return. I submit that the amount of $2,500 should be deducted from any order which this Honourable Court may make." Mr Styman, counsel for the applicant, submits that this assertion by the respondent does not accord with the facts as indicated in the transcript. He particularly drew my attention to pages 11-and 12 of the transcript. The evidence at the trial by the undercover agent was that when the respondent opened a brief case at his office, the agent saw that it contained two large plastic bags of green leafy material .. The respondent removed one of the bags from the case-and .said, "This one's got seven and a half in it." He went on to say that there was a discussion about the price for that.bag of green leafy material. $2,500 was paid over by the undercover agent to the respondent. I am left with evidence which would indicate that the -. 3o respondent had another bag of green leafy material; in other words~ he was not divesting himself of all the mar~juana 40 50 60 green leafy material was for remains unknown. I am of the opinion that the respondent's version of the transaction does not ring true. I am satisfied on the balance of probabilities on the material before the trial judge that the prosecution's version of this transaction is to be accepted rathe_r than the.version given by the respondent. In other words, .I am not satisfied that the marijuana given to the undercover agent in this transaction was anything other than a normal supply of marijuana to the undercover agent for the sum of $2,500. On the evidence as to the commission by the respondent of the other offences, I find that it is probable that this G 214-Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 6 -- 10 20 170991 JUDGMENT money was passed on to Will Banks by the respondent. However, the respondent would have received some benefit in cash or in kind i.e. in marijuana. I find that the $2,500 was "property that passed transitorily through his hands", to use the words of Wilcox Jin Cornwell v. Commissioner of Australian Federal Police (94 ALR 498 at 582). The $2,500 was not a benefit. It is impossible to quantify the benefit in cash or kind which I am satisfied that he would have received. After I had reserved my decision, the solicitor for the respondent drew my attention to the fact that the respondent paid $500 to the undercover agent just before he was arrested on the fourth count to which he pleaded guilty. The submission was that the respondent received nothing in return. It was submitted that any "benefit" should bi?, 30 calculated after taking into account this payment. In other words, since the respond~nt lost $500, I should deduct this j from any 11 b•3nefits 11 which I might find that he had received. __ I am not persuaded on the authorities that I have to I necess,,.-;:ilYemba:;::k upon a stric'-t ··ac~ounting exercise. I 40 have not to regard this application as just a matter of debits and credits. 50 60 The view I take is that the loss of $500 was one of those unfortunate things that happens to persons who engage in the drug trade. I do not propose to take it into account at all. I am concerned because the respondent has little earning capacity. He is on an invalid pension. He has no assets apart from an old motor car, not in a roadworthy condition, which is worth a few hundred dollars .. It could be regarded G 214-Govt. Printer, Old. 5 · 10 20 30 40 50 60 -- 5 of 6 -- ---~rrT0~9~9T-- , . ' ' 1 · from one point JUUGMt;l\l'l' of view as inappropriate to make an order for a pecuniary penalty in this case. On the other hand the prosecution has pointed out that an order can be registered as a judgment and it enures for twelve years. It might well be that there would be some change for the bE:-tter in the 10 financial circumstances of the respondent during that twelve years and the Crown may decide to enforce the judgment. As I have noted, I have a discretion to exercise. In the Queen v. Pautsma (Dowsett J, Brisbane 13 August 1991, unreported), the Court said:- 20 "Where the State has incurred the expense of the activities of undercover agents, a strong case exists for ordering a· pecuniary penalty. Similarly, when an accused person can be shown to be in possession of substantial assets or even simply significant assets it may be appropriate to make a pecuniary penalty order so that he is not seen to have benefited from his crime." -. I do not feel that I can guess what benefit the respondent I I 10 I 20 1 30 30 40 50 60 gained from the transaction involving $2,500. This means that the benefits received by the respondent are $800. This is a very small amount. It seems to me rather pointless to make an order such as the pecuniary penalty order which I know cannot be brought into execlfti·on-and·· effect at- the moment in the hope that in the next twelve years the respondent would come into funds or property sufficient to justify the State in its seeking to enforce the judgment against him. However, since the State has incurred a lot of expense in the activities of undercover agents, I will make the order. I order the respondent to pay to the Crown a pecuniary penalty in the sum of. $800. I order the respondent to pay the applicant's costs to be taxed. G 214-Govt. Printer, Qld. 6 40 50 60 -- 6 of 6 --