Ashworth, Re [1991] QSC 216 [1992] 2 Qd R 459

. '\c,A. -~ I 10 20 30 40 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 164 of 1991 BEFORE THE CHIEF .JUSTICE (Mr. Justice Macrossan) BRISBANE, 18 JULY 1991 (Copyright in this transcript is vested inthe Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF the Crimes (Confiscation of Profits) Act 1989-1990 -and- IN THE MATTER OF an application by the Director of Prosecutions for a Pecuniary Penalty Order against Marie Louise Ashworth JUDGMENT HIS HONOUR: I order that the respondent pay as a pecuniary penalty pursuant to the provisions of s. 13 of the Crimes Confiscation of Profits Act 1989-1990 the sum of $3,300 as requested. I make no order for costs. I publish my reasons. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 22 -- IN THE SUPREME COURT OF QUEENSLAND .Sc 91/c2.1 No. 164 of 1991 IN THE MATTER of Part III of the Crimes (Confiscationof Profits) Act 1989-1990 - and - IN THE MATTER application by theof Prosecutions PECUNIARY PENALTY against MARIE ASHWORTH of an Director for a ORDER LOUISE JUDGMENT - THE CHIEF JUSTICE Delivered the eighteenth day of July, 1991. The applicant, Director of Prosecutions, pursuant to the Crimes (Confiscation of Profits) Act 1989, applies for a pecuniary penalty order against the respondent Marie Louise Ashworth. The sum sought by the notice of motion is $17,300.00. The submission for the Director was that - this was an appropriate assessment of the value of the benefits which the respondent derived as a result of her committing the offence of trafficking with which she had been charged. On 27 September, 1990 the respondent pleaded guilty to the charge of trafficking and she was sentenced to a term of seven years imprisonment with a recommendation that she be considered for parole after serving one and half years of that sentence. The indictment, described as presented under s. 5 of the Drugs Misuse Act 1986, charged that between 31 July, 1987 and 8 June, 1988, at the Gold Coast, the respondent did carry -- 2 of 22 -- 2 on the business of unlawfully trafficking in a dangerous drug which was specified as being heroin a drug comprehended within the First Schedule of the Drugs Misuse Act. At the hearing, a number of affidavits were read on behalf of the applicant and these served to enlighten as to evidence which had previously been adduced and material presented at committal or on sentence. Evidence of conversations in which the respondent was said to have engaged and which had been tape recorded was also placed before the Court. The rather large volume of this material was made more manageable by the presentation at the hearing of a synopsis of relevant events. This was prepared on behalf of the applicant. The matters stated in this synopsis were largely agreed to by the respondent .. In particular it was accepted by her that she had received the amounts of money referred to in that doc um en t . However, she gave evidence on the hearing of the motion and - sought to introduce a number of distinctions and refinements. Some of her evidence I did not find persuasive al though it was not directly contradicted. Like \ others in her position, she could be expected to feel some pressure to distort and misrepresent. She did not give me the impression that on all issues with which she dealt she was placing before the Court a reliably accurate construction of events. The following will serve as a sufficient outline at this point. -- 3 of 22 -- 3 An undercover agent, Detective Hermann made some preliminary contact with the respondent and, after an interval of time, she made a sale of heroin to him. This first sale occurred in March, 1988 and was for the sum of $7,300.00 which was paid over to her by Hermann. A further sale took place at the end of May and the beginning of June, 1988. Once again, heroin in powder form was delivered by the respondent to Hermann. The delivery took place on 2 June, 1988. Some few days earlier Hermann had given the respondent an advance payment of $2,000.00 on account of the purchase which was to be made by him. On this occasion the respondent did not herself travel to her supplier who was apparently located in Sydney but sent a collaborator or assistant named Jacobson. Jacobson flew to Sydney, picked up the heroin and returned with it to Brisbane. The respondent then handed over the heroin to Hermann and received in exchange a further $6,000.00. Another occasion has some relevance for present purposes although a completed sale did not result from it. That was because the police intervened before the transaction was completed. A sale was to be made and Jacobson again flew to Sydney, collected heroin and returned with it, this time in a considerably larger quantity. She was apprehended when she got off the plane at Coolangatta Airport. The respondent was then also taken into custody. In her evidence, the respondent said that on this last occasion $1,000.00 for Jacobson's expenses had been provided in advance by Hermann. episode occurred on 7 June, 1988. This -- 4 of 22 -- 4 The total weight of heroin in powder form sold by the respondent to Hermann or seized by police was 164. 731 grams and its weight measured as pure heroin was 80.018 grams. It was suggested that it had a street value of $156,000.00. In claiming a pecuniary penalty order in the sum of $16,300.00 the applicant Director was relying upon what was shown as the total of the payments made by Hermann in the course of the transactions referred to. These constituted the substance of the Crown case on trafficking. The payments were respectively $7,300.00 on the March sale, the advance payment of $2,000.00 and the further payment of $6,000.00 on the sale arranged and completed between 30 May and 2 June and then the final payment of $1,000.00 to cover Jacobson's expenses on the transaction of 7 June. In view of the arguments presented on the hearing the true role played by Jacobson assumed some importance. The case for the Director was that Jacobson was no more than the respondent's assistant who acted in accordance with the respondent's directions and received some payments primarily to cover the amount of her expenses. The responde~t, while admitting that she herself played the major role in the negotiations with Hermann contended that too much should not be read into this because Jacobson was at that time living at home and was not as free to make the necessary arrangements. The respondent maintained that Jacobson was her partner in the transactions other than the first-mentioned and that the arrangement between Jacobson and herself was that they should share equally in the profits of the trafficking in -- 5 of 22 -- 5 May and June. Certain of the reported cases make the distinction between the roles of partner and mere assistant important for a decision upon the appropriate amount of any pecuniary penalty order. The primary contention for the respondent was that, at most, she should be ordered to pay no more than one-half of the profit balance which she said she had received calculated having in mind the circumstances and the arrangements entered into. The respondent said that she made no profit on the March sale for $7,300.00. She says she paid $7,000.00 for the drug which she herself collected from Sydney and she describes her sale to Hermann in terms of being paid $7,000.00 for the heroin and being given $300. 00 to reimburse airfares. This reimbursement she tended to describe as something of .a separate arrangement or at least as not necessarily part of a single agreed price for the heroin but her contention in this respect was not made completely clear. The respondent says that she was alarmed by her experience when she collected the heroin in March when she believed that she was being followed. Jacobson, however, was prepared to act as messenger and indeed was even keen to play that part · so it was agreed between the two of them that Jacobson should make the collection in Sydney. Jacobson was given money to cover her expenses. The respondent appeared to be saying that although she could not now remember exactly how much this payment for expenses was, it was in the form of an advance. The respondent says that her arrangement with -- 6 of 22 -- 6 Jacobson was to share equally in the profit which remained on the deal after expenses were taken into account. She says that this time the heroin cost $6,000.00 and the _total consideration received from Hermann was $8,000.00. She considered that about $400.00 had been expended on Jacobson's airfares, cab fares and lunch and $1,600.00 was left to be divided between the two of them. Her share was then $800.00. The final transaction in June was not completed. The supply of heroin which was seized by the police on that occasion had been acquired on credit the respondent said. It is open to think that the respondent had assumed some obligation to pay her supplier for this heroin which had been entrusted to her. The legislation under which the applicant's order is sought has its difficultie·s. Various courts on a number of occasions have attempted to clarify some of the more troublesome aspects involved in the assessment of the derived benefits which is made the basis of pecuniary penalty orders. The legislation when considered has not always been in identical form. The deepest examination of the various problems appears to have been undertaken in two cases R. v. Fagher (1989) 16 N.S.W.L.R. 67 in the New South Wales Court of Criminal Appeal and Cornwell v. Commissioner of Australian Federal Police (1990) 94 A.L.R. 495 in the Full Court of the Federal Court. A number of other authorities are reviewed in these cases but it remains the position that no uniform view has emerged on certain aspects. -- 7 of 22 -- 7 It is necessary first to look at the relevant legislation. The task which confronts the assessing Court is largely one of statutory construction. 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. In this situation the Court will approach the matter bearing in mind that questions of fact are to be decided by it on the balance of probabilities: s. 67(1). Section 6(1) provides for the making of applications for forfeiture or for pecuniary penalty orders or for both. These applications are authorised when a person has been convicted of a "serious offence" which, for relevant purposes is defined as an indictable offence: s. 3. The- Court is empowered by s. 8, "if it considers it appropriate", to order that property which it is satisfied is "tainted property" be forfeited to the Crown. "Tainted property" bys. 3 covers both property used or intended to be used in connection with the commission of the offence and property derived or realised directly or indirectly from the commission of the offence. The proceeds of sales of heroin and trafficking in heroin clearly would be comprehended. It is clear that there is a very full discretion residing in the Court which will call to be exercised· before a forfeiture order is made. To decide whether such an order should be made the Court is empowered to have regard to the use made or intended to be made of the property in question, -- 8 of 22 -- 8 any hardship that might be likely to be caused by the making of the order and the gravity of the offence concerned. It is of interest that if a trafficker or vendor of prohibited drugs remains in possession of the proceeds of his wrong-doing an authorised officer may seek the forfeiture of those proceeds but in that case there are wide discretions which are exercisable. In saying this I do not mean to suggest that in any case of that kind the Court would ordinarily be loath to order forfeiture of ill-gotten gains that is when no other special circumstances arose. However, if the wrong-doer is no longer in possession of the proceeds a forfeiture order would not be appropriate but in that case or, indeed, even if the wrong-doer were still in possession of the proceeds, a pecuniary penalty order could be sought. It is when pecuniary penalty orders are sought that the main difficulties are encountered. Section 13 provides as follows: "(1) If an application is made to a court under section 6(1)(b) for an order in respect of the benefits derived by the person as the result of committing the offence, the Court may - (a) assess the value of those benefits; and (b) order the person to pay to the Crown a pecuniary penalty equal to the value as so assessed less - ( i) the value ( as at the time of making the order under this subsection) of any property in respect of which a forfeiture order is made in reliance on the same conviction; and -- 9 of 22 -- 9 (ii) if the court thinks it desirable to take it into account, any amount payable by way of restitution or compensation in relation to the same conviction. (2) An amount payable by a person to the Crown under a pecuniary penalty order, for all purposes, is to be taken to be a debt due and owing by that person to the Crown. II Section 3 defines "benefit" as including "advantage". Section 14 deals with the assessment of benefits. By subs. (2) it provides as follows: "For the purposes of an application for a pecuniary penalty order against a person ( in this subsection called the 'defendant'), the value of the benefits derived by the defendant from the commission of an of fence or offences shall be assessed by the Court having regard to the evidence before it concerning all or any of the following:- " There then follow a number of sub-paragraphs (a) to (e) specifying a variety of matters. Amongst the matters which are required to be regarded are: the money or value of other property that came into the possession or under the control of the defendant or some other person at his request or direction by reason of the commission of the offence or any of the offences; defendant; the value of any other benefit provided to the where the offence consists of something done in relation to a dangerous drug the market value of such drug or the amount ordinarily paid as consideration for some similar relevant action or thing; the value of the defendant's property both before and after the commission of the relevant of fences and also the level of the defendant's income and expenditure before and after commission of the offences. -- 10 of 22 -- 10 Some of the matters referred to in s. 14 ( 2) are not directly relevant to the present hearing because although an attempt was made to explore the level of the defendant's expenditure before and after the trafficking and to investigate her income and the amount of her property at these times, it was inconclusive and no real reason emerged to call for the application of these facts to the assessment. It was not shown that the respondent had bettered herself financially in these respects. Subsection 14(6) provides for presumptions to operate in respect of property of a person against whom a pecuniary penalty is sought, casting upon a respondent the burden of proving that property has not come into his possession or under his control by reason of the commission of the offences. Again it was not suggested that this statutory presumption assumed relevance in the present case. Subsection (7) makes provision against doubling up where pecuniary penalty orders have already been imposed whether under this Act or a law of the Commonwealth, a territory or another state. Subsection (8) is relevant in this case and has been the subject of concentrated attention in other cases as well. It provides as follows: "In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoing of the person in connection with the commission of the offence or offences shall be disregarded". -- 11 of 22 -- 11 I do not find it necessary to refer in detail to any other provisions of the Act. Some features, more readily than others, fall into perspective. It may be accepted that s. 13(1) gives the Court a discretion to decide whether it will make the assessment when an order is sought "in respect of the benefits derived by the person as the result of committing the offence". The word "may" which is used in the subsection can be understood as a true permissive "may". However, once the benefits has been assessed and the decision value of the made to order payment of a pecuniary penalty then it is the assessed value (with two exceptions not relevant in the present case) which must be ordered to be paid. There is no further· discretion after the assessment has been made to order that part only of the assessed value shall be paid by way of penalty. Once the payment of the penalty has been ordered the Crown has the benefit of the order as creating a debt due to it which it is able to enforce in civil proceedings. Ifs. 13 stood alone it might be thought obvious enough that it is the overall advantage which a defendant has achieved for himself that is to be made the subject of the order. Take the simple example of a sale. If a person of criminal intent purchased a quantity of drug for a certain price and then sold it for the same figure then on no ordinary use of language co~ld he be said to have derived any benefit as a result of committing the offence involved. Further provisions ins. 14 however introduce the major difficulties. -- 12 of 22 -- 12 As to s. 14(2) it does not, I believe, cause particular difficulty when it is carefully examined. It is not said that any of the five features which the sub-paragraphs direct shall be examined must in the end be utilised to produce the assessment. Indeed the indications which the various sub-paragraphs provide may be conflicting or at least they may not all point towards an identical figure. The Court is directed to regard "all or any" of them. A principal consideration is that the Court is not directed to adopt a figure to which any of these headings might lead. merely directed to have regard to them. It is To take a simple case, if it is shown that a defendant came into possession of a certain sum of money effecting a sale of a prohibited drug then nothing ins. 14(2)(c) obliges the Court to assess the derived benefit at that figure although the Court is obliged to regard that sum in making its assessment. So far, this sits quite easily with the concept - introduced by s. 13 ( 1 ) which requires the Court to consider whether it will make an order for the payment of the value of benefits derived as a result of the commission of an offence. It may be said that the various matters referred to in s. 14(2) are highlighted for the Court's attention but none of them individually nor all of them together are made determinative of the amount of the assessment. The Court is still left with the task of considering the advantage or benefit flowing to the offender as a result of his wrong-doing in contradistinction to the amount of any property or sum -- 13 of 22 -- 13 which, perhaps fleetingly, passed through his hands without leaving him in a position where he has derived advantage. However, s. 14 ( 8) disturbs conceptions which might otherwise be confidently adopted. While the Court is invited bys. 14 to have regard to the various matters there listed it is not obliged to give any one or more of those factors any particular weight when it is deciding whether in the circumstances to make an assessment at all and when it is calculating the figure which it will arrive at in any assessment which it does make. The Court is, however, constrained to apply the principle indicated by s. 14(8) when it makes an assessment. Some tension can arise between the application of the principle ins. 14(8) and the more fundamental task pointed to bys. 13 of deciding upon the benefits or advantages derived from the commission of. the offence. I would not consider that any time sequence is.indicated by the phrase "as the result of" which appears in subs. 13(1) with reference to the commission of the offence. It is not necessary that the relevant benefits come to hand after but merely that they come from the commission of the offence. For example, a vendor of prohibited commodities may be paid in advance of delivery on a sale. While that advance payment may be part of the sale it will not come after a time when the sale and the offence are completed. There will nevertheless be no difficulty in deciding that the advance payment of the price could qualify as a benefit derived by the vendor as a result of committing the offence. -- 14 of 22 -- 14 It has already been suggested that the notion of "benefit derived" which is referred to in s. 13 conveys the idea of some lasting or non-transient advantage accruing to a respondent. The idea may be better expressed by saying that the benefit must be something which is received by or comes home to the respondent on his own account. Mere temporary possession of an item of value which is never received by him on .his own behalf would not qualify. The simple passage of funds or goods through the hands of an agent acting on behalf of another would not qualify since no benefit is derived. This seems to have been accepted by Willcox J. citing Merling J. in Cornwell v. The Commissioner of Australian Federal Police (supra) at 502 where it is said that it is not "property passing transitorily through (the) hands" of a respondent which is relevant but property at the respondent's "ultimate disposal". I think that if a person is asked by a principal to carry an envelope containing money to a third party stationed at some point and receive from him a parcel of drugs and carry them back to the principal then if these instructions are carried out by the agent no benefit will have been derived by him on these facts alone notwithstanding his temporary possession of items of value. I do not however think that a trader or vendor is entitled to escape the reach of s. 13 simply because he may have a pre-existing obligation to pay an amount to his supplier arising out of the acquisition of stock which he then proceeds to trade. When he sells for money the commodity which is at his disposal I do not think there is difficulty in -- 15 of 22 -- 15 deciding that he derives a benefit even though he may owe money to his own supplier in respect of his original acquisition of the stock. The subsection does not necessarily direct the Court to a calculation of profit or overall profit on the transaction which constitutes the offence al though in particular circumstances the matter may come down to that. I would consider that the sale by an owner or controller of a commodity for no overall profit calculated on the acquisition and disposal of the particular commodity, nevertheless gives the vendor a benefit within the meaning of the legislation equal to the price received. be something which could detriment accruing at the This may be so even if there may be regarded as a corresponding same time, i . e. parting with the goods in exchange for the price. If the sale is of an illegal commodity such as narcotics then converting the illegal possession of that commodity into freely negotiable currency would be a benefit or advantage for anyone who was himself a non-user. Further, subs. 13(1) directs attention to the benefit occurring as question and if the a result of committing the offence in relevant offence is a sale then the benefit, the sale price, is received as a result of committing that offence. It is not directly relevant that at an earlier time the vendor may have paid out money to acquire the goods in question. That earlier payment does not reduce the amount of the benefit which comes to the vendor from the offence which is constituted by the sale. Some situations may be akin to that of the courier in the simple example given above of the journey made to deliver a -- 16 of 22 -- 16 parcel, receive another package in exchange and bring that back to the starting point. What is the position if someone agrees to sell an illegal commodity and either receives the sale price paid in advance and uses that to make the purchase or, there being no advance payment, uses funds of his own, then journeys to a supplier to furnish himself with a commodity to trade and returns to his purchaser to complete the sale? To simpli_fy the example assume that he sells for the same price as he pays. The question then is, has he within the meaning of s. 13(1) derived a benefit as a result of the sale? In this example I would be disposed to think that he has not and fundamentally that is because he has bought the commodity to put himself in the position to make the sale and thus the acquisition and the payment of the purchase price results just as much from the arranged sale as does the receipt by him of the sale price. It is not reasonably possible to say that as a result of committing the offence, that is, making the sale, he has derived a benefit.- The acquisition as well as the disposal is in these circumstances part of the picture which s. 13(1) directs us to consider. This answer, however, is given without so far considering the difficulties introduced bys. 14(8). Before turning to s. 14(8) attention should be given to the fact that the present respondent was charged with and pleaded guilty to an offence of trafficking between two dates specified which are almost a year apart, 31 July, 1987 to 8 June, 1988. Simple examples based on a sale may not apply in her case. Her actions in acquiring heroin for supply and her -- 17 of 22 -- 17 payments on her purchases of trading stock falling within the period charged are all part of her trafficking. Her preceding payments to acquire stock to trade and her subsequent payments to her supplier if she happens to have bought on credit will all be part of the circumstances of the offence of trafficking which is charged and will therefore have to be taken into account in deciding what benefit she has derived from the commission of the offence. The evidence will need to be looked to and a decision made on it in deciding on the amount of the benefit overall. An overall perspective is required in this case because the relevant offence is one of trafficking between two specified dates. A similar approach involving recognition of acquisition costs may not have been appropriate if a simple offence, such as a sale, had been charged. The application of the approach now suggested would seem to lead to a conclusion, which is either as the respondent suggested in . argument or is at least closer to it than was suggested by counsel for the applicant director. But now s. 14(8) must be taken into account. Section 14 ( 8) declares that "any expenses or outgoings" of a respondent "in connection with the commission of the offence" shall be disregarded in any assessment which is made. If a sale of narcotics is under consideration it is easy to think that travelling expenses and also accommodation and living expenses while, for example, a sale is being transacted or concluded will be caught within subs. (8) and the question is whether in such circumstances or in circumstances like those of the present case, even more than this is intended. -- 18 of 22 -- 18 Is the Court directed to exclude the acquisition costs of the prohibited product which is traded? I am inclined to think not because it would not fall within the ordinary scope of the phrase ins. 14(8) to hold that it is. In the case of a sale, a more natural reading would say that the cost of the preceding acquisition of the traded commodity does not occur "in connection with" the subsequent sale but is something independent of it and may, indeed, constitute a separate offence and precede the sale by a long time interval. It may occur before the sale assessed in the example has been even contemplated. Therefore, I consider that it is nots. 14(8) which would cause the Court to refrain from deducting the acquisition cost when an assessment is made under s. 13(1) in the case where a sale of an illegal commodity is the relevant offence. In such a case 1 other reasons, discussed above, more directly connected with· the wording of s. 13 ( 1), might cause the Court to leave out of account the costs of acquisition when it is-looking for the benefit derived as a result of the sale. In the present case the relevant offence is not a simple sale but the more compound matter of trafficking within the dates charged. It embraces all of the individual transactions and activity which have already been outlined. I consider that it should be accepted that acquisition cost is a cost which occurs as an integral part of the trafficking. By contrast a preceding acquisition cost is not necessarily an integral part of a sale which subsequently occurs. -- 19 of 22 -- 19 While the matter is far from being completely clear I think the preferable construction of s. 14(8) is that the cost of an acquisition, which is itself part of the activity of trafficking, trafficking. When a trafficking. is not a cost incurred "in connection with" the trafficker pays to purchase his stock he is His payment has a different character from the payment he may make to a taxi driver as he travels to a destination to pursue his trafficking operations. The latter payment, but not the former, I would regard as comprehended by s. 14(8). Similar reasoning to that which I have just expressed appeared to find favour with Pincus J. in Cornwell (supra) at 513-514. I do not regard anything said by the -High Court in R. v~ Smithers ex parte McMillan (1982) 152 C.L.R. 477 as dealing with the point of distinction I am now making. Speaking there of the similarly structured Commonwealth provision the Court was able to say that it was gross rather than net benefits which had to have their value assessed. More detailed consideration of this aspect was not undertaken in that case. While I am suspicious of some of the respondent's testimony, I am in the end disposed to act upon it to the extent of finding that in the March transaction she paid $7,000.00 to acquire heroin which she sold for $7,000.00 and that she was given in addition $300. 00 r·eimbursement for airfares. The airfare expense was incurred in connection with the trafficking within the meaning of s. 14(8). Therefore it -- 20 of 22 -- 20 must be disregarded as a deduction when benefit derived is being assessed. I find therefore that $300.00 is the amount of the benefit derived on that occasion. In respect of the 30 May 2 June transaction the respondent said that the acquisition cost was $6,000.00 and that Hermann purchased by making two payments which totalled $8,000.00. I would accordingly assess the amount of the benefit derived as $2,000.00 disregarding, pursuant to s. 14(8), the expenses, roughly amounting to $400.00, which. were spent on airfares, cab fares and lunch for Jacobson and disregarding also the respondent's claim that this transaction involved a partnership arrangement with Jacobson. I think that the respondent dealt with Hermann as full principal and directed Jacobson pursuant to her own arrangement to pay Jacobson' s expenses and perhaps some further sum. These outgoings would all fall within the category of s. 14(8) expenses. In the final transaction on 7 June which was not completed she ·was paid $1,000.00 as she says in advance to cover Jacobson's expenses. This sum was received in the cour~e of the respondent's trafficking. Any of Jacobson's costs which were intended to be covered would fall within the category of expenses to be disregarded under s. 14(8). When the value of benefit to the respondent is being assessed this sum too should be added. I would accordingly assess the value of the benefits shown to have been derived by the respondent as a result of her trafficking as $3,300.00 in total. None of the matters -- 21 of 22 -- 21 listed for consideration ins. 14(1) would cause me to depart from assessing at that figure. I see no reason whatsoever to refrain from making an assessment or refrain from ordering the respondent to pay the amount which I do now assess. The legislation is very imperfectly constructed and far from clear. It is likely to continue to trouble judges called upon to make assessments unless amendments are made clarifying more precisely what the Court is intended to do or making clear.er the range of discretion which is intended to be conferred upon the Court. It is likely that widely varying approaches may be taken by judges in broadly similar situations and this is really most undesirable. If the legislation is not amended promptly it is to be hoped that an authoritative determination will provide the necessary guidance even though, so far, the appeals which have been brought reveal no uniform approach. I order that the respondent pay as a pecuniary penalty, pursuant to the provisions of s. 1 3 of -the Act the sum of $3,300.00. It is asked that I make no order for costs. -- 22 of 22 --