State of Queensland v Cooper and Anor
[2005] QSC 55
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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
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PARTIES: |
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FILE NO/S: |
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Trial Division |
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PROCEEDING: |
Application |
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ORIGINATING COURT: |
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DELIVERED ON: |
24 March 2005 |
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DELIVERED AT: |
Brisbane |
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HEARING DATE: |
22 February 2005 |
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JUDGE: |
Holmes J |
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ORDER: |
1. Pursuant to s 151 of the Criminal Proceeds Confiscation Act 2002, that cash in the sum of eleven thousand, eight hundred and twenty-five dollars ($11,825), the property of Peta Cheree Hollis, be forfeited to the State.2. Pursuant to s 34 of the Drugs Misuse Act 1986, that the property of Peta Cheree Hollis listed in schedule A to the originating application herein, the value of which I consider to be nil, be forfeited to the Crown.3. Pursuant to s 184 of the Criminal Proceeds Confiscation Act 2002, that Peta Cheree Hollis pay to the State a pecuniary penalty in the amount of four hundred and twenty-five dollars ($425).4. Pursuant to s 184 of the Criminal Proceeds Confiscation Act 2002 that Nicholas Paul Cooper pay to the State a pecuniary penalty in the amount of two thousand dollars ($2,000). |
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CATCHWORDS: |
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – FORFEITURE OR CONFISCATION – PECUNIARY PENALTY ORDER - Where applicant seeks pecuniary penalty orders under Criminal Proceeds Confiscation Act 2002 (Qld), s 178 and a forfeiture order under Criminal Proceeds Confiscation Act 2002 (Qld), s 151; Drugs Misuse Act 1986 (Qld), s 34 – where, in determining amount of pecuniary penalty order, court must assess value of benefits derived– whether entire proceeds of drug sales constituted benefits derived by respondents– alternatively, whether only so much of proceeds as retained by respondents after passing balance to drugs’ supplier constituted benefits derived Crimes (Confiscation of Profits) Act 1989 (Qld) Criminal Proceeds Confiscation Act 2002 (Qld), s 151, s 178, s 182(1), s 184, s 187, s 193, Schedule 1 Drugs Misuse Act 1986 (Qld), s 34 Director of Public Prosecutions v Delaney (1998) 7 TasR 383 Re Tunney [1994] 2 QdR 113 R v Fagher (1989) 16 NSWLR 67 R v Pepin (1996) 86 ACrimR 327 |
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COUNSEL: |
JA Kapeleris for the applicant S Reidy, solicitor, for the respondent Cooper D Kent for the respondent Hollis |
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SOLICITORS: |
Office of the Director of Public Prosecutions, Queensland for the applicant Carne Reidy Herd for the respondent Cooper Legal Aid Queensland for the respondent Hollis |
The application
[1] The applicant seeks the making of pecuniary penalty orders against the respondents, in the amount of $11,200 against Nicholas Paul Cooper, and in the amount of $69,175 against Peta Cheree Hollis. Orders are also sought against Ms Hollis for forfeiture of the sum of $11,825 and certain items of property related to drug use. Ms Hollis consents to the making of the forfeiture orders, but both she and Mr Cooper argue that the Crown has overstated the benefits which it says they derived from the commission of confiscation offences. Mr Cooper was convicted of one count of trafficking in methylamphetamine and 3,4 methylenedioxymethamphetamine between 16 June and 16 August 2002. Ms Hollis was convicted of trafficking in methylamphetamine and 3,4 methylenedioxymethamphetamine between 22 April and 16 August 2002; three counts of possessing a dangerous drug (respectively 3,4 methylenedioxymethamphetamine, methylamphetamine and lysergide) on 16 August 2002; possession of things used in connection with a crime (three smoking pipes); and possessing property (money) obtained from trafficking.
[2] Primarily at issue on these applications is whether the respondents should be regarded as deriving as a benefit all of the proceeds they had in their hands from the sale of drugs or only so much of the proceeds as they retained after passing the balance onto the drugs’ supplier. There are associated arguments as to the actual calculation of the amounts derived by each.
The legislation
[3] Section 178 of the Criminal Proceeds Confiscation Act 2002 enables the State, where a person is convicted of a confiscation offence, to apply to the Supreme Court for a pecuniary penalty order “requiring the person to pay to the State the amount of the benefits derived from the commission of the confiscation offence”. Section 182(1) requires the court, in deciding such an application, to have regard to the evidence given in any proceeding against the respondent for the relevant confiscation offence. Where the offence is a serious drug offence (as the offences committed by Mr Cooper and Ms Hollis were) the court must assess the value of the benefits derived and order the person to pay a pecuniary penalty in that amount, less certain deductions. The only such deduction relevant here applies to Ms Hollis, in the form of the amount of any forfeiture order made against her. Although those limited deductions are specified, s 193 dictates that any expenses or outgoings, which is to say “all costs and expenses incurred by the person in, or in connection with, committing the offence or offences”, are to be disregarded in assessing the value of benefits derived.
[4] Section 187(1) of the Act sets out what must be taken into account in assessing the value of benefits; relevantly for present purposes those matters include
(a) the value of cash and other property that came into the possession or under the control of the relevant person or someone else at the request, or by the direction, of the relevant person, because of the commission of the offence;
(b) the value of any benefit provided for the relevant person or someone else at the request, or by the direction, of the relevant person because of the commission of the offence;
(c) if the offence consisted of the doing of an act or thing in relation to a dangerous drug or controlled substance (the illegal drug)—
(i) the market value, when the offence was committed, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug involved in the offence; 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 ….”
[5] Schedule 1 to the Act contains “Assessment of benefits examples”, which are said to be examples of the “practical operation” of the relevant sections[1]. Example 1 is as follows
“(1) A and B are separately convicted of confiscation offences of carrying on the business of unlawfully trafficking in a dangerous drug.
(2) C bought the dangerous drug from B on 5 occasions for $2 000—a total of $10 000.
(3) B gave the money to A.
(4) A paid B a total of $1 000.
(5) B acted solely as an agent or courier of A.
(6) A is—
(a) the supplier of the dangerous drug; and
(b) the principal with whom C, through B, dealt.
(7) Under section 187(1)(a) and (b) and 193, the benefit derived by A is $10 000.
(8) Under section 187(1)(a), the benefit derived by B is $1 000.”
The background to the confiscation offences
[6] At the time of her arrest, Ms Hollis was 25, had one minor previous conviction for an offence of dishonesty committed when she was a teenager, and was unemployed, although she had previously worked as a disability support worker. Mr Cooper was 23, had no previous convictions and worked in a grocery store. In August, 2002, they moved together into a unit in Fortitude Valley. Previously they had shared accommodation with a man I shall refer to as X. (He has absconded and charges against him remain to be dealt with.) On 16 August 2002, police officers, having searched X’s premises, moved on to conduct a search of the unit where Ms Hollis and Mr Cooper now lived. In Ms Hollis’ bedroom they found a number of clip-seal plastic bags containing cannabis; 24.43g of 3,4 methylenedioxymethamphetamine (ecstasy) which produced a pure concentration of 4.943g; 8.183g of methamphetamine which amounted to 2.123g pure; 0.001g of amphetamine; and a miniscule amount of lysergide.
[7] In the course of the search, Ms Hollis told the officers that X was the source of the drugs. She said “I don’t pay for – like I don’t buy it ... He just gives it to me to sell ...”. Later, when asked what the “exact arrangement” with X was, she answered “He gives me the drugs and I sell them and then I take a small cut and give him the rest of the money back. And then whatever I don’t use [or] sell I give the stuff back”.
[8] The searching police also found, in two different locations in Ms Hollis’ bedroom, amounts of money totalling $11,785. In an interview later that day, Ms Hollis said that $3,700 (which had been in a separate envelope) was for X. She described it as “money that I’d sold drugs from and I’d taken my part out of it and that was [X]’s money to give back to him.” Her share of the total sum from which the $3,700 came would, she said, probably have been $400 or $500. The balance of the money seized consisted in the main, Ms Hollis claimed, of her savings from a payout in respect of injuries she had received in a car accident, although she conceded there was also a component of drug money. Previously, she explained, her keycard had been stolen and funds withdrawn from her bank account by the thief; since that experience she had kept all her money about her. If, after meeting living expenses, she had any money left over from drug dealing she added it to her store.
[9] Two note books were also found in the course of the search. One recorded the details of amounts and dates of payments to X, totalling $73,000 over a four month period. The other contained names of individuals and amounts. The notes, Ms Hollis said, referred to “money that people owed me” from supplies of drugs.
[10] In the interview, Ms Hollis expanded on her arrangement with X. He would give her a certain amount of drugs which she would sell and then take her cut. All the drugs located in her bedroom were given to her by X to sell; she agreed it was, as the interviewing officer described it, the “standard agreement where you sell them, you get a certain cut and you give the remainder to him”. She would sell a bag of cannabis, she said, for $25 from which she would receive $5; “Special K” (ketamine) would be sold a gram at a time for $200, of which she would keep $20; ecstasy tablets for $40-$50 each, of which she would keep about $10; and small bags containing methylamphetamine for $40-$50, of which $10 would be hers.
[11] The arrangement with X began, Ms Hollis said, when they were sharing premises. He told her that he was selling drugs and asked her if she “wanted to make a bit of extra cash”. Subsequently, when friends asked her to get drugs for them, she would contact X by telephone, he would provide the drugs for her to sell and he would tell her how much money to return to him. The arrangement seems to have become more regular over time. He would tell her how much there was in the way of drugs to sell and she would take them to nightclubs. At the end of the evening she would work out with X how much she had sold; then she would take her part and give the rest of the funds to him. She would sell what she was given, but if she needed more she would ask X for more, although not in large amounts. Ms Hollis estimated that she made between $300 and $500 per week selling drugs at clubs. She swore two affidavits, relied on in this application, which essentially confirmed her account to the police, including the details of her earnings.
[12] Mr Cooper was also interviewed on the day of the search. He said that he sold drugs when he went out clubbing. He did not buy drugs from anybody; he got them from Ms Hollis, who in turn obtained them from X. As far as he knew, Ms Hollis bought them. He would take with him to nightclubs a bag of 10 or 20 ecstasy tablets, each of which he would sell for $40, keeping $5 for himself. He sold within his circle of acquaintances and friends, a group of about 10 or 15 people. When he and Ms Hollis came home from their nightclub excursions he gave his takings (less his share) to her. He was asked how much he would make selling drugs on a weekly basis. Initially he volunteered the figure of $100, but said that in the last week he had earned nothing. Later, in answer to that question he said, “between $200 and $500”. His answer is somewhat equivocal; it is not clear whether that figure refers to the total proceeds of his sales or his take, but at sentence it was put by the Crown, and not disputed, that the figure did in fact reflect Mr Cooper’s actual earnings.
The pecuniary penalties sought
[13] In respect of Ms Hollis, the applicant relied on the amounts recorded in the notebook, totalling $73,000. At sentence, the learned sentencing judge arrived at a range of $15,000 to $20,000 as the actual profit to Ms Hollis. Assuming that his Honour applied the 20 per cent to 25 per cent profit range which seems generally to have been applicable to Ms Hollis’ dealings, he must have based his calculation on a figure of $60,000 as representing the money handed over by Ms Hollis from sales made by her, leaving a balance of $13,000 as representing Mr Cooper’s sales. The applicant, however, made a slightly different allowance, of $12,000, for Mr Cooper’s sales, and, using the figure of $20,000 as retained by Ms Hollis, added it to $61,000 to calculate a turnover of $81,000. After deducting the forfeiture amount, it arrived at the figure of $69,175 sought by way of pecuniary penalty order.
[14] The applicant did not seek to argue that the contents of Ms Hollis’ notebook were in any way admissible against Mr Cooper, relying instead on his admissions as to his earnings. On the basis of Mr Cooper’s estimate of profits of between $200 and $500, Mr Kapeleris, for the applicant, made a calculation of the total proceeds he had received of between $6,400 (20 pills sold at $40 per pill over eight weekends) and $16,000 (50 pills sold at $40 over eight weekends). The amount sought by way of pecuniary penalty, $11,200, was mid-way in that range.
The respondents’ submissions
[15] On the strength of Example 1 of the “Assessment of benefits examples”, both Mr Kent, for Ms Hollis, and Mr Reidy, for Mr Cooper, argued that their clients were to be regarded in the same category as B in the example; that is to say, as acting in Ms Hollis’ case, as an agent of X, the supplier and the principal with whom the customers were in truth dealing, and in the case of Mr Cooper, as an agent of either X or Ms Hollis. Consequently the benefits derived by their clients were only the monies retained by them: their commissions.
[16] For Ms Hollis, Mr Kent pointed out that she had been brought into the business by X; she had not purchased the drugs from him, it was only after they were sold that he received the proceeds less the amount she retained; she was effectively a commission agent recruited by X. Mr Cooper and Ms Hollis had been treated, in terms of culpability, on an equal footing at the sentence; they ought now to be regarded as playing the same role, which in each case was that of an agent.
[17] Mr Reidy, for Mr Cooper, adopted the submission that his client was an agent of the kind illustrated in example 1 of the “Assessment of benefits examples”. He invited attention to examples 2 and 4 as well, to argue that s 187 was underpinned by a concept of determining benefit according to where the proprietary interest in the criminal venture lay. Mr Cooper could not assert any interest in the drugs or money; his only expectation was to receive a small amount from each transaction. He had said specifically in his interview, “I don’t buy drugs from anybody”.
[18] Both Mr Kent and Mr Reidy suggested, albeit somewhat faintly, that hardship or the lack of prospect of their clients’ being able to meet any orders might be relevant considerations. Mr Reidy adverted in his written submissions to Director of Public Prosecutions v Delaney[2], a decision of the Tasmanian Court of Criminal Appeal to the effect that the absence of any prospect of the respondent’s meeting an order was a relevant consideration, and R v Pepin[3] and R v Fagher[4], both decisions of the New South Wales Court of Criminal Appeal, in which the possibility that hardship was a factor was left open. But the legislative provisions under consideration in all of those cases contained this important difference: the making of a pecuniary penalty order was discretionary, not mandatory as it is under s 184 in this case, where serious drug offences are involved.
[19] And one of the members of the court in Fagher, Hunt J, took the view that hardship was not in any case relevant under the New South Wales Act:
"…I am quite unable to see how hardship could be a relevant consideration to the decision whether the pecuniary penalty should be imposed. If a person retains ill gotten gains from the commission of a crime, the fact that he will suffer hardship by having to disgorge those gains (because, for example, he cannot use them for some lawful purpose) and therefore need not disgorge them appears to me to defeat the whole purpose of this Act. The legislature has very carefully identified hardship as being relevant to the decision whether a forfeiture order should be made, but not as being relevant to the decision whether a pecuniary penalty should be imposed. That, it seems to me, should be the end of any relevance of hardship when such penalties are imposed. This is particularly so as the pecuniary penalty is in no sense intended to be a punishment…” [5]