State of Queensland v Olssen[2023] QSC 223

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application brought pursuant to ss 77 and 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) (“the Act”).  It seeks an order that the respondent, Matthew Francis Olssen, pay the applicant a proceeds assessment amount of $353,153.16, said to be the value of the proceeds derived by the respondent from illegal activity.
2. [2]
   The application was filed on 12 February 2014.  The original amount sought as a proceeds assessment order was $720,000 or such other sum as the Court assesses.
3. [3]
   On 5 December 2022, Burns J gave leave to amend the application to reduce the amount of the proceeds assessment order from $720,000 to a proceeds assessment order “in the amount of $365,653.16, or such sum as the Court assesses.”
4. [4]
   On 23 June 2023, Freeburn J made an order for the matter to be listed for trial between 7 and 8 September 2023.
5. [5]
   At the trial of the application, I granted leave to further amend the application to reduce the sum sought by $12,500 to $353,153.16.  I am satisfied that the respondent had notice of this application for amendment.  At a directions hearing in the week prior to the trial, the respondent had indicated his support for the proposed amendment.
6. [6]
   The respondent did not appear at the trial on 7 September 2023.  I am satisfied on the evidence before me that the respondent had notice of the trial and had been served with the trial material.  On 6 September 2023, the respondent had sent an email to the Court stating that he did not intend to attend the trial.
7. [7]
   Pursuant to prior orders of this Court, the respondent had been given leave to attend the trial via video link from the Townsville Courthouse, where video facilities would be made available.  Those video facilities were provided and in operation at all times during the trial.  The respondent’s name was called three times, both at the Brisbane Supreme Court and at the Townsville Courthouse. As foreshadowed by the respondent, he did not appear at the trial.  The trial accordingly proceeded in his absence.

The Statutory Scheme

8. [8]
   The State’s application for a proceeds assessment order is made under ss 77 and 78 of the Act.  Section 77 provides as follows:

1. “77
   Application for proceeds assessment order

1.  The State may apply to the Supreme Court for an order (proceeds assessment order) requiring a person to pay to the State the value of the proceeds derived from the person’s illegal activity that took place within 6 years before the day the application for the order is made.

2.  The State must give notice of the application to—

1.  the person against whom the order is sought; and

2.  anyone else who the commission, or if the application is made for the State by a police officer, the commissioner of the police service reasonably suspects may be affected by the order.

3.  A person given notice under subsection (2) may appear at the hearing of the application.

4.  The absence of a person required to be given notice of the application does not prevent the Supreme Court from making a proceeds assessment order.

5.  The 6 years mentioned in subsection (1) includes periods before and after the commencement of this section.”

9. [9]
   Section 78 provides as follows:

1. “78
   Making of proceeds assessment order

1.  The Supreme Court must make a proceeds assessment order against a person if the court finds it is more probable than not that, at any time within the 6 years before the application was made, the person engaged in a serious crime related activity (a finding of serious crime related activity).

2.  However, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

3.  A finding of the court under subsection (1)—

1.  need not be based on a finding about the commission of a particular offence; and

2.  may be based on a finding that some offence that is a serious crime related activity was committed.

4.  The court may make the ancillary orders the court considers appropriate when it makes the proceeds assessment order or at a later time.

5.  The Supreme Court may not make a proceeds assessment order on an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside Queensland, including outside Australia, in relation to the proceeds of the external serious crime related activity.

6.  For subsection (5), an affidavit by an appropriate officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against any property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

7.  The court may make a pecuniary penalty order and a proceeds assessment order in relation to the same serious crime related activity.

8.  However, the court must take the amount of a pecuniary penalty order into account when making a later proceeds assessment order in relation to the same serious crime related activity.”

10. [10]
    The definition of “proceeds” is defined in s 18 of the Act as follows:

1. “18
   Meaning of proceeds

1. Proceeds, in relation to an activity, includes property and another benefit derived because of the activity—

1.  by the person who engaged in the activity; or

2.  by another person at the direction or request, directly or indirectly, of the person who engaged in the activity.”

11. [11]
    The definition of “derived” is defined in Schedule 6 of the Act as follows:

“derived includes—

1.  directly or indirectly derived; and

2.  realised.”

12. [12]
    The definition of “illegal activity” is relevantly defined in s 15 of the Act as follows:

1. “15
   Meaning of illegal activity

1. An illegal activity is an activity that is—

1.  a serious crime related activity; or

2.  an act or omission that is an offence against the law of Queensland or the Commonwealth; or

3.  an act or omission committed outside Queensland that—

1.  is an offence against the law of the place in which it is committed; and

2.  would be an offence mentioned in paragraph (b) if it were committed in Queensland.

Note—

This definition applies to the whole Act. See the dictionary.”

13. [13]
    A summary of the operation of Chapter 2, Part 5 of the Act was provided by his Honour Justice Applegarth in State of Queensland v Cannon^[1] in the following terms:

1. “[15]
   A proceeds assessment order requires a person to pay to the State the value of the “proceeds derived from the person’s illegal activity that took place within 6 years before the day the application for the order is made.” The term “proceeds” in this context includes property and another benefit derived because of the activity by the person who engaged in the activity, or by another person at the direction or request, directly or indirectly, of the person who engaged in the activity.  In assessing the value of proceeds the Court must have regard to the evidence before it about the various matters specified in s 82(1).
2. …
3. [16]
   The Court may treat as the value of the proceeds the value the proceeds would have had if derived when the valuation is being made, and may have regard to any decline in the purchasing power of money between the time the proceeds were derived and the time the valuation is being made.
4. [17]
   In assessing the value of proceeds pursuant to Division 2 of Part 5 of the Act, any expenses or outgoings incurred by the relevant person in relation to the illegal activity must be disregarded. Section 84 includes the following example:
5. “For deciding the value of the proceeds derived by the relevant person from an illegal activity involving the sale of dangerous drugs the person’s expenses paid in acquiring the drugs must be disregarded.”
6. [18]
   In determining the value of the proceeds, the Court may receive evidence of the opinion of a prescribed officer, who is experienced in the investigation of illegal activities involving dangerous drugs, about the market value at a particular time of a particular kind of dangerous drug or the amount or range of amounts ordinarily paid at a particular time for the doing of anything in relation to a particular kind of dangerous drug.”^[2] (Footnotes omitted)

14. [14]
    In State of Queensland v Brooks, P McMurdo J (as his Honour then was) observed: ^[3]

1. “[46]
   …It is for the State to prove the extent of the criminal activity  from which it then seeks to establish the proceeds of that activity.
2. [47]
   In this context, the court is entitled to make an assessment by what is described as a broad approach: R v Pepin (1996) 86 A Crim R 327. There are also the considerations mentioned by Hunt J in R v Fagher (1989) 16 NSWLR 67 where he said at 80:
3. “… the court should not lose sight of reality that the court, to fulfil its statutory obligation, often will have to assess the value of the benefits derived by the defendant on material which is far less satisfactory than what it normally would expect to have in litigation. It is not the nature of criminals to keep records of such a kind as to assist the court: nor is it the nature of criminals to tell the truth when telling a lie would seem more advantageous.”” (Footnotes omitted)

15. [15]
    A proceeds assessment order must state the amount required to be paid to the State which is the value of the proceeds derived from the person’s illegal activity.^[4]
16. [16]
    Anything done by a person which is a “serious criminal offence” is a “serious crime related activity”.^[5]  A serious criminal offence is an indictable offence for which the maximum penalty is at least five years’ imprisonment.^[6]  These terms are defined at ss 16 and 17 of the Act as follows:

1. “16
   Meaning of serious crime related activity and external serious crime related activity

1.  Anything done by a person that was, when it was done, a serious criminal offence, is a serious crime related activity.

2.  Subsection (1) applies whether or not the person has been charged with the offence or, if charged—

1.  has been tried; or

2.  has been tried and acquitted; or

3.  has been convicted, even if the conviction has been quashed or set aside.

3.  An external serious crime related activity is a serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be a serious criminal offence.”

1. “17
   Meaning of serious criminal offence

1.  An offence is a serious criminal offence if it is any of the following—

1.  an indictable offence for which the maximum penalty is at least 5 years imprisonment;

2.  an offence prescribed under a regulation for this definition;

3.  an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be an offence mentioned in paragraph (a) or (b);

4.  an ancillary offence to an offence mentioned in paragraph (a), (b) or (c) including an offence that would be an ancillary offence to an offence mentioned in paragraph (c) if the offence had been committed in Queensland.

2.  In this section—

indictable offence includes an indictable offence dealt with summarily.”

17. [17]
    The value of the proceeds assessment order is to be assessed under Division 2 of Part 5 of Chapter 2 of the Act.  The relevant provisions are:

1. “82
   Matters to which Supreme Court must have regard

1.  The Supreme Court must have regard to the evidence before it about the following—

1.  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 illegal activity;

2.  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 illegal activity;

3.  if the illegal activity involved a dangerous drug or controlled substance (the illegal drug)—

1.  the market value, when the illegal activity happened, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug; and

2.  the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity;

4.  the value of the relevant person’s property before, during and after the illegal activity;

5.  the relevant person’s income and expenditure before, during and after the illegal activity.

2.  The court—

1.  may treat as the value of the proceeds the value the proceeds would have had if derived when the valuation is being made; and

2.  without limiting paragraph (a), may have regard to any decline in the purchasing power of money between the time the proceeds were derived and the time the valuation is being made.

…

1. 84
   Particular amounts not to be deducted

For this division, any expenses or outgoings incurred by the relevant person in relation to the illegal activity must be disregarded.

Example—

For deciding the value of the proceeds derived by the relevant person from an illegal activity involving the sale of dangerous drugs the person’s expenses paid in acquiring the drugs must be disregarded.”

18. [18]
    Thus, if the illegal activity involved an illegal drug, regard may be had to the market value of the drug and the amount ordinarily paid for the substance similar to the illegal activity as provided by the opinion evidence of a prescribed officer.^[7]  In assessing the value of proceeds, any expenses or outgoings incurred by the relevant person in relation to the illegal activity must be disregarded.^[8]  Regard may also be had to the value of cash and other property that came into the possession and control of the respondent, and the value of any benefit derived from the respondent because of the illegal activity.^[9]
19. [19]
    In State of Queensland v O'Brien, Carmody CJ observed:^[10]

1. “[66]
   Section 82(1)(c)(i) of the Confiscation Act requires, in the context of illegal activity involving a dangerous drug, the market value, when the illegal activity happened, of the dangerous drug similar, or substantially similar, to the illegal drug, to be considered in assessing the value of any proceeds. Methylamphetamine constitutes a “dangerous drug” under s 4 of the Drugs Misuse Act 1986 (Qld).
2. [67]
   The phrase “market value” is not defined under the Confiscation Act. “Market value”, in different contexts, has been described as the best price which may be reasonably obtained for property if sold on the general market. However, several United Kingdom courts and commentators have held that as “market value” means the value of property if lawfully sold, drugs possess no “market value”. Despite this, Queensland courts have consistently referred to the existence of a “market value”, or “black-market” value, for illicit substances. Furthermore, s 82(1)(c)(i) of the Confiscation Act would be rendered nugatory if dangerous drugs lacked any “market value”, which would be contrary to the intention of Parliament. Accordingly, the “market value” of illicit substances under s 82(1)(c)(i) is the best price which may be reasonably obtained if the illicit substances were sold on the general market.
3. [68]
   Section 85(1)(a) of the Confiscation Act prescribes that this court may receive evidence of the opinion of a prescribed officer who is experienced in the investigation of illegal activities involving dangerous drugs about the market value at a particular time of a particular kind of dangerous drug or controlled substance. “Prescribed officer” includes a police officer or member of the Australian Federal Police. Feeney, an expert witness called by the Crown, is a police officer of the Australian Federal Police with extensive experience in investigating drug-related offences. Feeney, therefore, constitutes a “prescribed officer” from whom evidence regarding the market value of methylamphetamine between 1998 and 2003 may be admitted.” (Footnotes omitted)

20. [20]
    In State of Queensland v Cannon, Applegarth J observed as follows:^[11]

1. “[11]
   The main object of the Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity. One of the separate schemes provided for by the Act relies on a person being charged and convicted. The other scheme, which includes provision for a proceeds assessment order, does not depend on a charge or conviction.” (Footnotes omitted)

21. [21]
    A proceeds assessment order is not a punishment or sentence for the offence.^[12]  Proceedings under the Act are not criminal.  Any questions of fact in the proceedings must be decided on the balance of probabilities.^[13]  The rules of evidence that apply in civil proceedings apply to these proceedings.^[14]

Serious Crime Related Activity

22. [22]
    On 21 October 2016, the respondent was convicted in the Townsville Supreme Court on the following charges:

    1. trafficking in a dangerous drug between 1 June 2011 and 19 October 2011;
    2. possessing dangerous drugs on 26 August 2011; and
    3. supplying dangerous drugs on 26 August 2011.
23. [23]
    This was evident from the certificate of conviction, which was a certified copy of a “Verdict and Judgment Record” for The Queen v Matthew Francis Olssen for 21 October 2016 issued by the Registrar of the Supreme Court at Townsville. The trafficking conviction was based on three transactions.  The first of which occurred in about July 2011, a second transaction which occurred in August 2011 (“August 2011 Second Transaction”) and a third transaction which occurred in September 2011 (“September 2011 Third Transaction”). These proceedings are only concerned with the proceeds said to have been derived by the respondent from the August 2011 Second Transaction and the September 2011 Third Transaction.  The amendment to the application made at trial effectively removed any valuation of the drugs involved in the first transaction.  This overcame the problem that it may not have been possible to demonstrate what quantity of drugs and what purity level of the drugs were involved in the first transaction.
24. [24]
    The acts that constitute the basis for these convictions would constitute a “serious criminal offence” as defined, and as such would be “serious crime related activity”, as that term is defined.  The certificate of conviction is in evidence in this proceeding. Those convictions raise a presumption that the person convicted committed the acts which constitute the offence.^[15]  The conviction has “…the status of a fact probative of the acts constituting the offence committed that is to prevail unless the contrary is proved”.^[16]  The presumptions raised by the certificate of conviction in this case have not been challenged by proof to the contrary.  Those presumptions are therefore accepted in this case as facts which have been established on the evidence. 
25. [25]
    The respondent was sentenced to nine years’ imprisonment with parole eligibility after serving six years and six months for the offence of trafficking in dangerous drugs.  The respondent was convicted but not further punished in relation to the charges of supply and possession of dangerous drugs, which were related to the August 2011 Second Transaction.
26. [26]
    On 8 June 2018, an appeal against the conviction was dismissed and an application for leave to appeal against sentence was refused.^[17]
27. [27]
    On 14 August 2019, the respondent’s application for special leave to the High Court of Australia was refused with costs.^[18]
28. [28]
    As previously observed, the State’s application for a proceeds assessment order was filed on 12 February 2014.  The respondent had engaged in serious crime related activity in 2011.  This was within the six years prior to the application being made. Accordingly, the threshold created by s 78 of the Act is therefore met.  A proceeds assessment order is able to be made.

The amount assessed

29. [29]
    Once criminal activity has been established, it is for the State then to establish the proceeds derived from that activity.
30. [30]
    Pursuant to s 79 of the Act, a proceeds assessment order must state the value of the proceeds derived from the person’s illegal activity.  The value of proceeds “must” be assessed under Division 2.^[19]
31. [31]
    Section 82 (a provision within Division 2 of the Act) stipulates how the value of the proceeds assessment order is to be assessed under the Act.
32. [32]
    Section 82(1) provides, inter alia, that the Supreme Court must have regard to evidence about the market value (when the illegal activity happened) of a dangerous drug and the amount that was, or the range of amounts that were ordinarily paid for an act similar or substantially similar to the illegal activity.
33. [33]
    Evidence of market value can be given by a prescribed officer pursuant to s 85 of the Act.  This provision is as follows:

1. “85
   Evidence by prescribed officer

1.  Despite any rule of law or practice about hearsay evidence, the court may, for this division, receive evidence of the opinion of a prescribed officer who is experienced in the investigation of illegal activities involving dangerous drugs about—

1.  the market value at a particular time of a particular kind of dangerous drug or controlled substance; or

2.  the amount, or range of amounts, ordinarily paid at a particular time for the doing of anything in relation to a particular kind of dangerous drug or controlled substance.

2.  In this section—

prescribed officer means—

1.  a police officer; or

2.  a member of the Australian Federal Police; or

3.  an officer of customs within the meaning of the Customs Act 1901 (Cwlth); or

4.  an authorised commission officer.”

The evidence

34. [34]
    The respondent has been convicted of the offence of trafficking.  The conviction establishes the elements of the offence, but it does not establish the amounts or purity of the drugs involved. The extent of the respondent’s drug trafficking and the subsequent value of proceeds derived by him depend upon the amount of methylamphetamine that was trafficked and its purity.
35. [35]
    In this instance, the respondent made admissions at the criminal trial.  The admissions are in evidence in this proceeding.  These admissions include the following matters.  In respect of the drugs which related to the August 2011 Second Transaction, these drugs were contained in four individually wrapped blocks of methylamphetamine.    Each block weighed approximately one pound.  The total weight of the substance was 1,799.2 grams and the total weight of pure methylamphetamine within the substance was 318.4 grams.  I calculate this as representing an average purity of 17.69 per cent.  The drugs were ultimately seized from a Mr Alexander at the Magnetic Island Ferry Terminal on 27 August 2011. 
36. [36]
    It was in connection with this transaction that the respondent was also convicted of supplying dangerous drugs and possession of dangerous drugs.  The weights were also confirmed by reference to the analyst’s certificate which is also in evidence in this proceeding. 
37. [37]
    I accept this evidence of the type, weight and purity of the drugs, and the date and place of the ultimate seizure of the drugs, involved in the August 2011 Second Transaction.
38. [38]
    In respect of the drugs which related to the September 2011 Third Transaction, by the same admissions document, it was also admitted by the respondent at the criminal trial that the amount involved a total weight of 322.571 grams of substance, and the total weight of pure methylamphetamine within the substance was 58.98 grams.  I calculate this as representing an average purity of 18.28 per cent.  This substance was contained in two bags.  The first bag contained 136.454 grams of substance with a total calculated weight of 21.013 grams of pure methylamphetamine within that substance.  The second bag contained 186.117 grams of substance with a total calculated weight of 37.967 grams of pure methylamphetamine within that substance.  The drugs were ultimately seized at a location identified by a Mr Bruniera, being in the vicinity of Charters Towers on 26 September 2011. 
39. [39]
    Again, these admissions are in evidence in this proceeding.  I accept this evidence of the type, weight and purity of the drugs, and the date and place of the ultimate seizure of the drugs involved in the September 2011 Third Transaction.
40. [40]
    I turn next to the market value of those drugs. 
41. [41]
    Evidence was led from a Detective Senior Sergeant Michael Walker, who was at all times, a “prescribed officer” as defined by s 85(2) of the Act. 
42. [42]
    Detective Senior Sergeant Walker has had 29 years’ experience as an undercover officer.  From 2006 to 2017 he was the Officer in Charge of the Northern Region Drug Squad in Townsville.  From April 2010 until June 2013, he relieved as the Regional Crime Coordinator (Northern Region) overviewing all major criminal investigations carried out by 110 detectives within the Northern Police Region, including drug investigations.  He gave evidence that the opinion he provided in his affidavit evidence was based on his experience gained from his role as a police officer, liaising with other law enforcement agencies, intelligence holdings and information gathered from offenders, together with reference to the Australian Criminal Intelligence Commission (“ACIC”) Illicit Drug Data Reports for the 2010-2011 and 2011-2012 financial years.
43. [43]
    Detective Senior Sergeant Walker gave evidence that the ACIC Illicit Drug Data Reports were released annually and brought together data collected from a variety of sources, including State and Federal law enforcement agencies, forensic services, health and academia.  He gave evidence that the ACIC Illicit Drug Data Reports provided an overview of certain illicit drugs and their prices in the illicit markets of the States and Territories.
44. [44]
    Detective Senior Sergeant Walker put into evidence the ACIC Illicit Drug Data Reports for the financial years 2010-2011 and 2011-2012.  Both reports record that for the non-crystalline form of methylamphetamine sold in Queensland in pounds, the market price in each financial year was $45,000-$90,000 per pound. 
45. [45]
    Detective Senior Sergeant Walker observed that the type of methylamphetamine involved in the transactions which made up the trafficking in this case is known as “old-school” methylamphetamine.  He did this by reference to, inter alia, the certificate of analysis of Ms McGowan which, amongst other things, contained a description of the appearance of the analysed drug for the August 2011 Second Transaction.  Ms McGowan put into evidence her certificate for the August 2011 Second Transaction.  It described the drug’s appearance as “a moist, yellow substance”.  Detective Senior Sergeant Walker gave evidence that “old-school” methylamphetamine can come in a powder or moist paste form.  This is to be contrasted with the crystalline appearance of more modern methylamphetamine, which will usually have a much higher purity.
46. [46]
    Detective Senior Sergeant Walker noted that the amount involved in the August 2011 Second Transaction at the relevant time was just under four pounds, being 3.9629 pounds.^[20]
47. [47]
    Detective Senior Sergeant Walker assessed the value of this quantity of substance per pound in North Queensland as between $60,000 - $90,000 in 2011.  His evidence was thus to the effect that the wholesale illicit market for these drugs, sold at a pound level in North Queensland, had a higher floor to the range than for the same drugs sold in Southern Queensland. The drugs in this case were being trafficked into North Queensland.  Specifically, in relation to the drugs the subject of the August 2011 Second Transaction, Detective Senior Sergeant Walker gave the following evidence:

1. “21.
   Methylamphetamine is sold by the pound, ounce, quarter ounce, eighth of an ounce (eight ball), grams and points.  The ‘street value’ of “old-school” methylamphetamine sold in pounds in North Queensland in 2011 was:

• Pound (454 grams) $60,000 - $90,000

1. …
2. 23.
   I have calculated the market value of the methylamphetamine referred to in Exhibit “JAM-01” of the Affidavit of Ms McGowan^[21] and referred to in paragraph 22 above as follows:
3. …
4. (d)
   I have deposed to the market value of methamphetamine being $75,000 which is the mid-way point between $60,000 - $90,000, referred to in paragraph 21 above.  In my experience, the market value of dangerous drugs is influenced by a number of factors including; supply and demand, purity, availability, location and relationships.  For example, if there is a greater demand in a particular area then the wholesale price may rise increasing profits for the seller.  In my experience, in 2011, North Queensland drug users were paying a greater price for methylamphetamine than southern drug users.  In my opinion the market value of the methylamphetamine sold in 2011 in North Queensland would / should have been $75,000…”

48. [48]
    With respect to the August 2011 Second Transaction, if the weight of substance of 3.9629 pounds is multiplied by the value of $75,000 per pound, a valuation of $297,217.50 is arrived at.  This is the amount which the applicant seeks as the value of the proceeds derived by the respondent from his trafficking of the drugs involved in the August 2011 Second Transaction.
49. [49]
    With respect to the September 2011 Third Transaction, the weight of substance was 0.7105 of a pound.^[22]  Detective Senior Sergeant Walker then used the same $75,000 value in calculating the market value of the September 2011 Third Transaction drugs.  He expressed the opinion that the market value of the methylamphetamine involved in the September 2011 Third Transaction, if sold in North Queensland in 2011, would also have been $75,000 per pound.
50. [50]
    With respect to the September 2011 Third Transaction, if the weight of substance of 0.7105 of a pound is multiplied by the rate of $75,000 per pound, a valuation of $53,287.50 is arrived at.  This is the amount which the applicant seeks as the value of the proceeds derived by the respondent for his trafficking of the drugs involved in the September 2011 Third Transaction.
51. [51]
    It is clear that the evidence of Detective Senior Sergeant Walker proceeded on the basis that the trafficking of the two transactions involved here were on a wholesale basis and not a street level retail basis.  That later basis would have produced a much higher market value.  I find that the proper basis to value the drugs is on a wholesale basis and not retail. The quantity of the drugs in each transaction supports this conclusion. I note that a similar conclusion had been reached in respect of the respondent’s trafficking by Holmes J (as her Honour then was) in her Honour’s sentencing remarks.^[23]
52. [52]
    Detective Senior Sergeant Walker’s evidence was not challenged by the respondent.  The respondent knew of the trial of this matter and elected not to participate in it. 
53. [53]
    The applicant also led other evidence at trial via an affidavit of Kelly Sarah Shore, affirmed 27 August 2018.  As part of that evidence, at paragraph 3, Ms Shore stated as follows:

1. “The factual basis underlying the conviction in paragraph 2 above is detailed in the transaction of hearing on 21 October 2016 and the sentence of the Honourable Justice Holmes made on 21 October 2016.”

54. [54]
    The conviction referred to in paragraph 2 of her affidavit relevantly included the trafficking conviction relevant to this application. The affidavit then exhibited both the transcript of the oral sentencing submissions on 21 October 2016, and the sentencing remarks of Holmes J.  On the face of the affidavit, the applicant sought to adduce this as evidence of the factual basis underlying the convictions. 
55. [55]
    The transcript of this sentencing argument recorded that another officer, being an Officer Phelps, had given a statement (presumably at the trial) that the market value of the drugs for the transactions were between $60,000-$70,000 per pound.  Officer Phelps did not give evidence in this proceeding, and no recording of his evidence given at trial was put before me.
56. [56]
    The transcript also records that in relation to the September 2011 Third Transaction, which involved the quantity of 0.7105 of a pound of methylamphetamine, the prosecutor had made a submission to the jury, based on telephone intercepts, that the purchase price could have been $40,000, otherwise it was perhaps commensurate to Officer Phelps’ statement that it was $60,000-$70,0000 per pound.  In the sentencing remarks of Holmes J, her Honour referred to intercept phone tapes with another person who was involved in the September 2011 Third Transaction.  Her Honour noted there was some evidence of $13,000 having changed hands, but there was other evidence to suggest that the total purchase price might have been about $40,000, which would be cheaper than the price indicated by Officer Phelps, but consistent with an indication on the intercept tapes that those particular drugs were being obtained cheaply.  Again, the intercept tapes were not put before me as evidence.
57. [57]
    The formation of a value of drugs for a sentencing process is different to the process of making an assessment of the proceeds derived from the illegal activity on an assessment of proceeds application.
58. [58]
    Nonetheless, this material was put into evidence by the State as representing the factual basis underlying the conviction.
59. [59]
    In my view, it is appropriate to have regard to the fact that the clandestine intercept tapes identified that, in relation to the September 2011 Third Transaction, the total purchase price might have been about $40,000 and that this particular transaction was being procured cheaply.  Ultimately, the Act is concerned with assessing a value of the proceeds which were derived.
60. [60]
    I accept the evidence of Detective Senior Sergeant Walker that at the relevant time these transactions were taking place, the market value of “old-school” methylamphetamine in North Queensland would have been between the range of $60,000-$90,000.  I also accept his evidence that the market value of the drugs involved in the August 2011 Second Transaction and the September 2011 Third Transaction would or could have been $75,000 per pound if sold into the North Queensland illicit drugs market at the relevant times.  The reference in the sentencing remarks to the statement of Officer Phelps of a lower range of $60,000 - $70,000 per pound does not cause me to reject Detective Senior Sergeant Walker’s evidence.  Detective Senior Sergeant Walker gave his opinion evidence on oath based on the matters which he identified.  Further, he was present at this trial and available to be cross-examined on his evidence.  The respondent elected not to object to or test the evidence.
61. [61]
    However, I find it is appropriate to have regard to the material put before me by the State as the factual basis of the conviction, which material indicated that the September 2011 Third Transaction was being obtained cheaply, and that the total price for those drugs may have been for an amount of approximately $40,000. 
62. [62]
    When $40,000 for 0.7105 of a pound is converted back to a per pound price, it calculates out at $56,238.38, which is quite close to the bottom of Detective Senior Sergeant Walker’s range for “old-school” methylamphetamine being trafficked in North Queensland at the relevant time.
63. [63]
    In conclusion, in relation to the August 2011 Second Transaction for the 3.962 pounds of substance trafficked by the respondent, I treat as the value of the proceeds derived by the respondent when the valuation was made (namely August 2011), as being $75,000 per pound for such drugs multiplied by 3.962 pounds, thereby totalling $297,217.50.
64. [64]
    In relation to the September 2011 Third Transaction for the 0.7105 of a pound of substance trafficked by the respondent, I treat as the value of the proceeds derived by the respondent when the valuation was made (namely September 2011), as being the amount of $40,000.  That is not to reject the evidence of Detective Senior Sergeant Walker, but rather to pay due regard to the factual basis underlying the convictions which were put before me by the State, which support that the proceeds derived were on balance likely to be less than the general illicit drug market price in North Queensland at the relevant time.
65. [65]
    In the circumstances, in accordance with the method of assessment prescribed by s 82(1) of the Act, I assess the total value of the proceeds derived from the respondent’s illegal activity for both the August 2011 Second Transaction and the September 2011 Third Transaction as $337,217.50
66. [66]
    This is the prima facie amount that ought to be stated in the proceeds assessment order.

Public Interest

67. [67]
    The Court may refuse to make an order if it is satisfied that it is not in the public interest to make the order.^[24]
68. [68]
    The evidence does not support that there is a reason to refuse to make an order considering the public interest.  Accordingly, the Court will exercise its discretion to make the proceeds assessment order for the amount of $337,217.50 pursuant to
    s 78(2) of the Act.

Interest

69. [69]
    The State seeks interest on the amount of the proceeds assessment order.
70. [70]
    Interest can be awarded in certain circumstances pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) (“Civil Proceedings Act”).  This section provides as follows:

1. “58
   Interest up to judgment

1.  This section applies in relation to a proceeding in a court for the

payment of money, including a proceeding for debt, damages or the value of goods.

2.  This section does not apply in relation to—

1.  a proceeding for a cause of action arising before 21 December 1972; or

2.  a proceeding for the payment of money on which interest is payable as of right whether because of an agreement or otherwise.

Editor’s note—

The Common Law Practice Act Amendment Act 1972 commenced on 21 December 1972.

3.  The court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.

4.  This section does not—

1.  authorise the giving of interest on interest; or

2.  affect damages recoverable for the dishonour of a bill of exchange.”

71. [71]
    A proceeds assessment order is an order that seeks the payment of money.  In State of Queensland v Cannon (No 3) [2011] QSC 307, Applegarth J found that interest could be awarded under s 47(1) of the Supreme Court Act 1995 (Qld) (“Supreme Court Act”). 
72. [72]
    The former provision enabling interest (s 47(1) of the Supreme Court Act) referred to the “recovery of money”. The wording of the current s 58 of the Civil Proceedings Act is arguably wider in operation than its predecessor as it merely refers to “payment of money”.
73. [73]
    Relevantly, Applegarth J had made that proceeds assessment order^[25] on the basis of historical data so that the value reached by his Honour was the value in terms of the historical dollar amount at the time the relevant illegal transactions occurred.  In those circumstances, his Honour found it was appropriate, in addition to a proceeds assessment order, to order that the respondent pay to the State interest pursuant to s 47 of the Supreme Court Act at the rate specified in relevant Practice Directions in force from time to time.  The reference to the rate specified in the Practice Directions was evidently a reference to rates applicable to default judgments in this Court as promulgated from time to time.
74. [74]
    Section 58 of the Civil Proceedings Act equally gives an unfettered discretion as to the awarding of interest, the rate of interest, and the period of interest.
75. [75]
    The purpose of interest is to compensate a successful plaintiff for being kept out of the judgment sum, and not to punish the respondent for the delay in payment.
76. [76]
    Interest should be granted under this section unless there is some proper scope for withholding it.^[26]
77. [77]
    It will often be appropriate to award interest from when the cause of action arose,^[27] to reflect the identified purpose of compensating a successful litigant from being kept out of the judgment sum. 
78. [78]
    In State of Queensland v Cannon (No 3),^[28] Applegarth J awarded the interest from the time of the commission of the offences that gave rise to the deriving of the proceeds and the right to the subsequent proceeds assessment order.  A similar approach ought to be undertaken in this proceeding.

Conclusion

79. [79]
    The respondent engaged in a “serious crime related activity” within the six years before the making of the application the subject of these proceedings.  The serious crime related activity was the trafficking in methylamphetamine.  The respondent was a drug trafficker into the North Queensland illicit drug market.  I have based my assessment of the value of the proceeds derived by him in accordance with my findings set out above as $337,217.50. 
80. [80]
    The interest should be calculated at the rates applicable to default judgments in this Court as promulgated from time to time.  I have chosen the date on which the drugs were seized as the starting date for each calculation.  For the August 2011 Second Transaction, that is 27 August 2011.  For the September 2011 Third Transaction, that is 26 September 2011.  The calculation of that interest is in accordance with annexure “A” to these reasons.  The Court’s interest calculator has been used to calculate the total interest payable as being $253,065.95.

Decision

81. [81]
    In accordance with these reasons the order of the Court is that:

1. Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the respondent pay to the applicant the sum of $337,217.50 together with interest in the sum of $253,065.95 pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

82. [82]
    As presently advised, I consider that costs should follow the event and include any reserved costs.  However, I will hear from the parties, if required, concerning the question of costs.