R v Darko DELOVSKI [2014] NSWDC 17

District Court New South Wales

Medium Neutral Citation: R v Darko DELOVSKI [2014] NSWDC 17 Hearing dates: 13 March 2014 Decision date: 21 March 2014 Before: HAESLER SC DCJ Decision: I assess the value of the benefits derived by the respondent in connection with drug trafficking to be $90,000. I order the respondent to pay a pecuniary penalty to the State of $90,000 being an amount equal to the value of the benefits derived by the respondent in connection with drug trafficking. Catchwords: Confiscation of Proceeds of Crime, Drug Trafficking, meaning of benefit. Legislation Cited: Confiscation of Proceeds of Crime Act 1989 Cases Cited: R v Fagher (1989) 16 NSWLR 67 R v Hall [2013] NSWCCA 47 Lee v DPP (CTH) 75 NSWLR 581 DPP v Nieves [1992] 1 VR 257 Olbrich v The Queen (1999) 199 CLR 270 R v Staas (No 3) [2013] NSWDC 289 Category: Consequential orders Parties: The Crown Darko DELOVSKI, Offender Representation: Mr D Coulton, Crown Mr J David, Offender File Number(s): 2013/158357

Judgment

Confiscation of Proceeds of Crime Act 1989 1The Confiscation of Proceeds of Crime Act 1989 (the Act) empowers a court on the conviction of a defendant, to make orders for the confiscation of property derived from, or used to commit a "serious offence" within the meaning of the Act 2The principal objects of the Act as set out in s 3 relevantly include: (1)To deprive persons of the proceeds of, and benefits derived from, the commission of offences against certain laws of the State, and (2)To provide for the forfeiture of property used in or in connection with the commission of such offences. 3Division 4 of the Act provides for drug proceeds orders. An application for a drug proceeds order may be made when the defendant is convicted of a drug trafficking offence: s 29. That section requires the Court to determine whether the defendant has derived a benefit in connection with drug trafficking, and if so assess the value of the benefit and order the defendant to pay the State a pecuniary penalty in that amount. 4Section 30 (1) provides that in assessing the benefits (if any) derived in connection with drug trafficking, the court is to have regard to information before the court. Here relevantly those matters noted in subsections 1 (a) and 1 (d) as no evidence relating to the other subsections was before me: (a)the money that came into the possession or control of the defendant at any time in connection with drug trafficking by the defendant, (d) the market value, at the time of the drug trafficking, of substances similar or substantially similar to the prohibited drug or prohibited plant involved in the drug trafficking offence or offences, 5Section 30(6) provides, relevantly, that in assessing the value of the proceeds of drug trafficking of a defendant convicted of a drug trafficking offence, any expenses or outgoings of the defendant in connection with the commission of the offence or offences must not be deducted. Those terms are not defined in the Act and carry their ordinary meaning.