10.1 The fine is a sentence which aims to punish offenders by requiring them to pay money to the State. Two other orders considered in this Chapter, namely reparation and confiscation orders, are not sentences in themselves, but may be used as orders ancillary to sentencing. They require the offender to make compensation to the victim or to account for the victim’s property or the proceeds of crime.
FINES
Use of the fine as a sentencing option
10.2 The fine is the most frequently used criminal sanction.1 The vast majority of fines are imposed not by the courts, but through infringement notices. In 1994, 50,352 persons found guilty in the Local Court were fined,2 but 1,632,869 infringement notices were issued for parking and traffic infringements in the financial year 1993/94, in addition to 106,333 infringement notices issued as a result of red light and speed cameras. In 1990/91, 65 local councils issued an estimated 91,650 notices, while 150 other organisations issued another 180,736.3
10.3 There are several reasons for the use of fines in preference to custodial penalties. They include:4
- fines can be adjusted to the offender’s ability to pay. A court is required to consider the finances of an offender before imposing a fine,5 and so will impose a fine at a level that will, in theory, avoid non-payment and imprisonment in default;6
- as a sentencing option, fines are an effective deterrent without the stigma which attaches to a gaol term. From an offender’s point of view the brutality of the prison environment is avoided;7 the risk of an introduction to more serious crime is thereby minimised.8
Lack of equity
10.4 Despite the many advantages of financial penalties, a notable disadvantage is the potentially discriminatory operation of such sanctions. A requirement that a convicted offender pay a particular sum, say $500, could work great hardship or be met with relative ease depending on the financial standing of the offender. The response to the inequitable operation of fines in the Australian context has, broadly speaking, been twofold: to grant the sentencing court a discretion to take account of the means of the offender in assessing quantum;9 and to provide for reasonable time to pay the penalty.10
10.5 The courts have not embraced the idea that those with greater means should pay larger than normal fines. The Law Reform Commission of Tasmania, after noting this apparent anomaly, concluded:
[A]s a matter of principle, penalties should not be increased according to the individual offender’s means. It would be impossible, in all cases, to accurately and easily determine a person’s wealth. Further, it could be seen as a gross invasion of a person’s privacy to require him to reveal his financial position, particularly in relation to minor offences.11
The Australian Law Reform Commission was not persuaded by this reasoning:
It is not easy to discern the principle the Tasmanian Law Reform Commission had in mind in reaching its conclusion. The problem of determining a person’s financial status, wealthy or otherwise, is a pragmatic rather than principled concern. The only apparent principle to which that Commission refers is that of privacy. A wealthy person’s privacy does not deserve greater protection than that of a poor person. In other words, the rules as to disclosure of financial information should apply universally. If it is decided that privacy is a dominant concern then no person should be required to disclose his or her financial position for the purpose of assessing appropriate financial penalties.12
But the ALRC did not recommend higher penalties for affluent offenders.
Day Fine
10.6 One possible response to the equity issue is to introduce the “day fine”. In essence, this involves the notion that the amount of the fine should be determined by reference to the daily income of the offender. It was first introduced in Finland in 1921 and subsequently in Sweden (1931), Denmark (1939) and then West Germany (1975).13 The court imposes a penalty involving a specified number of day-fine units, the amount of each unit being calculated by reference to the offender’s financial circumstances. The amount of each unit is multiplied by the number of units set by the court to determine the total fine payable.14
10.7 The major objection to day fines seems to be the practical problems associated with ascertaining the offender’s financial status accurately. This has led to a rejection of the system in the Netherlands, France and Britain.15 It also ultimately persuaded the Australian Law Reform Commission to reject the idea of day-fines. The Commission commented:
[T]he practical difficulties involved in the courts having to determine accurately an offender’s ability to pay are too great. Not only would the time involved be excessive, especially in magistrates courts, but possibly the only method of obtaining the necessary data with complete accuracy would involve access to the offender’s taxation records. This would raise privacy problems. The existence of artificial taxation schemes might lead to white collar offenders being able to conceal their financial position from the courts.16 '
The Commission is interested to learn whether there is support for the introduction of a day-fine system in NSW and invites comment.
Penalties for fine default
10.8 A major issue in relation to fines is what further punishment should be imposed on offenders who do not pay. Traditionally, imprisonment has been the automatic response. At first glance, this is at odds with the original decision of the sentencing court not to imprison the offender. The Australian Law Reform Commission criticised the use of imprisonment for fine default because it undermines the advantages of the fine as a sentencing measure and, in cases where the default is not wilful, is a harsh and inappropriate measure.17
10.9 Although imprisonment remains a penalty for fine default in New South Wales, there is now a myriad of options available to fine defaulters and courts before imprisonment needs be considered. These non-custodial sanctions for fine default were, however, introduced on the assumption that imprisonment remained the final sanction to encourage fine defaulters to take advantage of them.18
10.10 Options for fine defaulters other than full-time imprisonment include:19
- periodic detention;20
- community service orders;
- civil enforcement of the debt;
- the cancellation of drivers’ licences or motor vehicle registrations for the non-payment of traffic and parking fines;21 and
- requesting further time to pay.
10.11 Notwithstanding these options, several thousand fine defaulters serve up to a maximum of three months in full-time imprisonment each year.22 For instance, 3,920 fine defaulters were taken into custody in 1993.23 This figure represents an extremely small proportion of the total number of fine defaulters in the State at any one time.24 The costs associated with administering imprisonment for fine defaulters are disproportionately high compared with longer term prisoners. Not surprisingly, the State government has imposed moratoria which suspend any action pertaining to warrants of commitment issued in respect of fine default. The most recent of these were in December 1987 and March 1994.
Should imprisonment be removed as a penalty for fine default?
10.12 Ultimately, the only way to keep fine defaulters out of the prison population is to remove full-time imprisonment altogether as a sanction for fine default. If this were done, there would be no incentive for greater compliance with non-custodial sanctions, and those fine defaulters who escape the enforcement net, or are indifferent to complying with non-custodial sanctions, will potentially escape punishment altogether. The Commission believes that it is necessary to retain imprisonment as the final sanction in order to provide a sanction against wilful defaulters who choose not to take advantage of the non-custodial and other options available.
10.13 There are several ways of reducing the incidence of non-compliance. The first step is to improve the process of enforcement. A recent report by the New South Wales Bureau of Crime Research and Statistics considered the issue of enforcement processes in relation to fine payment.25 Several possibilities were proposed to reduce delays and enhance compliance. These included raising the perceived risk of apprehension for fine default, incentives for prompt or early payment, greater use of civil enforcement at an early stage and the targeting of resources to those who are most likely to default.26 The Commission endorses these proposals.
10.14 Secondly, increasing the use of options other than full-time imprisonment (such as community service orders, home detention and civil enforcement of the debt) may alleviate some of the problems that could arise from the removal of full-time imprisonment as a sanction. The State Government has recently announced that it plans to expand the home detention system to divert fine defaulters away from the gaol system.27 Placing a greater burden on these non-custodial sanctions naturally has resource implications which must be resolved if these sanctions are to be effective alternatives to full-time imprisonment.
10.15 Civil enforcement is an alternative to issuing a warrant of commitment against a fine defaulter. The court must be satisfied that civil enforcement is reasonably likely to result in satisfaction of the amount owing.28 In practice, the offender’s ability to pay the fine may not arise as a real issue until an application is made either for time to pay or for the issue of a Community Service Order. A Statutory Declaration as to means and assets of the fine defaulter then has to be obtained. By the time the subsequent arrangement for payment or Community Service Order has been breached, the contents of the Statutory Declaration are no longer current and, at that stage, the courts prefer to issue warrants of commitment rather than pursue the civil enforcement option.29
10.16 A survey in the Local Court of Statutory Declarations of means and assets reveal that the profile of the average fine defaulter is a person who is unemployed with little or no property.30 In such circumstances, civil enforcement is not an option that can realistically be pursued, and garnisheeing of social security benefits is precluded by Commonwealth legislation. It is not, perhaps, surprising that no use has been made to date of the civil enforcement procedures that exist in relation to fine defaulters.
10.17 A further possibility might be to make all fine defaulters, in addition to traffic related ones, subject to cancellation of their drivers’ or vehicle licences.31 The success rate of the system of enforcement of traffic infringements by the Roads and Traffic Authority certainly commends this approach. However, the Commission believes that the system of licence cancellation is too fragile to bear the weight of other types of fine defaulter. It may simply encourage the incidence of unregistered vehicles or drivers.32
10.18 An alternative approach might be to make unpaid fines a charge on property. Such a charge could, for example, be imposed on a motor vehicle belonging to the fine defaulter and placed on the Register of Encumbered Vehicles33 (REVS) or on land. The amount outstanding could be treated as a debt and accrue interest. Such charges could then be drawn to the attention of credit reporting agencies. Such schemes would, of course, delay, perhaps indefinitely, the requirement for payment and would postpone the final sanction of imprisonment.
Infringement notices
10.19 One type of financial penalty which has been proliferating over recent years is the so-called “on the spot fine”.34 Such fines are never, in fact, paid on the spot. People alleged to have committed the offence are issued with an infringement notice and invited to discharge their liability by payment of a fixed monetary penalty. Failure to pay may result in court proceedings or direct enforcement of the penalty depending on the system adopted. The most familiar example is the parking fine but this technique has spread to the regulation of cyclists, commercial vehicles, dog owners, littering and registration and reporting requirements in business.35 Since 1986, South Australian police have had a discretion to issue a Cannabis Expiation Notice instead of prosecuting people for possession of small amounts of cannabis.36 In 1989, the Australian Law Reform Commission examined the possibility of converting minor criminal offences into “administrative illegalities” called “contraventions”. This would have the effect of avoiding the “trauma, stigma and adverse consequences of a prosecution for a criminal offence”.37
Advantages
10.20 Infringement notices can prevent minor cases reaching court and save time and money both for the offender and the criminal justice system. The avoidance of a conviction results in reduced stigma. The system can be automated, is highly efficient and raises significant revenue. The penalty payable is considerably less than the maximum available were the matter to be dealt with in court.
Disadvantages
10.21 The penalty is fixed and does not allow for adjustment to the circumstances of the case. The offences invariably involve strict or absolute liability and dispense with the traditional criminal law requirement to prove mens rea (a guilty mind). Often, such offences involve a reversal of the traditional criminal onus of proof. There is a temptation for authorities to maximise the revenue potential of such measures rather than focus on regulatory objectives. The prospect of an infringement notice being challenged in court may not be great given the relatively small penalty, the lack of legal aid for such matters and the inconvenience factor. There may be a “net-widening” effect.38 Finally, it is generally desirable that the imposition of penalties be subjected to impartial judicial scrutiny.
Model legislation?
10.22 Following the first major Australian study of infringement notices,39 Professor Richard Fox concluded that the infringement notice system was now a permanent feature of criminal justice but that there were uncertainties as to offence classification and procedures. He concluded that there was a need for model infringement legislation to define infringement offences; stipulate procedures for the issue of notices and enforcement; outline the procedure for expiation by payment of a fixed amount and for court prosecutions at a full hearing; restrain the amount of punishment and collateral consequences; and provide that penalties should be proportionate to the wrongdoing.40 Fox argues that the following features should be incorporated in a model statutory infringement scheme:
- It should apply only to offences triable summarily.
- The infringement must be completely expiated by payment of a legislatively fixed sum of money, but the issue of the notice may also lead to the suspension or withdrawal of a right or licence to undertake an activity to which the alleged offence relates.
- The maximum amount of any single infringement penalty should not exceed $500 (or the equivalent in penalty units), or one-quarter of the maximum statutory penalty that applies if the offence is dealt with summarily by a court.
- Any right or licence withdrawn because of the infringement should be suspended rather than cancelled and, ordinarily, for a period of no longer than six months. Longer suspension, or outright cancellation, should occur only upon a court order.
- The scheme should be administered by the police or officers of the public authority ordinarily responsible for enforcing the particular legislation creating the offence.
- The officials empowered to enforce the legislation and to issue infringement notices must also retain and exercise a discretion to issue a warning or a caution in less serious cases, or a summons to court in more serious ones, instead of automatically issuing an infringement notice. Guidelines for exercising that prosecutorial discretion should be drawn up and disseminated to those making the enforcement decisions.
- Each infringement notice should be in plain English with foreign language warnings of its significance.
- The infringement notice must make it clear that the alleged offender has the right to elect to go to court to contest the accusation, but that the matter may be disposed of in court by way of a “hand-up-brief” procedure whereby both the informant and the defendant are compelled to state their case in writing prior to the hearing.
- A person against whom an infringement notice has been issued should not be treated as having been convicted of the alleged offence, except upon a court order. Expiation of the offence by payment should not lead to a conviction. Even if the matter is defended in court, and the grounds on which the notice was issued are established beyond reasonable doubt, the court should still have the right not to record a conviction. An alleged offender who contests the notice instead of expiating it by payment should not be penalised, other than in costs, for exercising that right.
- The infringement notice should give the alleged offender a formal opportunity in writing to advise the agency which issued the notice of any factual matters which the person considers ought to be taken to account in relation to the alleged offence. These matters should be taken into account in exercising a discretion to withdraw the notice either absolutely, or with warning.
The Commission’s view
10.23 The Commission has not reached a concluded view as to the desirability of regulating infringement offences with greater precision (either as to classification or procedure) or as to the appropriate criteria for doing so. We note that the Australian Law Reform Commission ultimately recommended that particular offences be designated infringements on an ad hoc basis because of the difficulty of deriving satisfactory criteria to distinguish between crimes and contraventions.41 However, we invite comment as to the desirability of infringement offences and as to suitable modes of regulation.
REPARATION ORDERS
10.24 “Reparation” covers both compensation and restitution. Restitution, in the narrowest sense, means the restoration of an item of property to its lawful owner. It is often used more broadly, to include compensation which is the making good, by an offender, of damage resulting from the commission of a crime.42
10.25 Reparation can be brought into the criminal justice system at a number of stages:
- Before trial, as part of a diversionary scheme such as community-based victim/offender mediation43 or as a condition to a police caution.44
- At the time of sentencing, where prior reparation can be used as a mitigating factor in determining an appropriate sentence. Prior reparation can be seen as evidence of offenders’ contrition, or a willingness to make up for loss or injury caused and preparedness to face up to the consequences of their actions.45
- At sentencing, as a sentencing option, either by itself, or as ancillary to, or in conjunction with other sanctions. As a sentencing option it could be one of the means of diverting offenders from the penal system.
- At sentencing, as a condition of sentencing; for example, as part of a bond or recognizance.46
- As a matter to be considered at parole; for example, details of payment of compensation during imprisonment could be included in an application for parole, or an order for reparation could be made a condition of release on parole.
10.26 This section will examine the use of reparation orders at the stage of sentencing where legislation gives the courts power to direct the offender to make restitution or compensation to the victim. The provisions dealing with reparation were originally contained in s 437, 437A and 438 of the Crimes Act 1900 (NSW). Section 438, which remains in the Crimes Act 1900 (NSW), deals with restitution orders. Sections 437 and 437A of the Crimes Act 1900 (NSW), which related to orders for direct compensation of victims by offenders, have been transferred, in greatly altered form, to Part 6 of the Victims Compensation Act 1987 (NSW). These transferred provisions are quite separate to the rest of the Victims Compensation Act 1987 (NSW) which deals with the State-sponsored criminal injuries compensation scheme.47 The provisions in Part 6 were retained because of the belief that some cases would fall outside the ambit of Part 5. The most obvious example, according to the Attorney General of the time, was property crime.48 The provisions of Part 6 can therefore be used as a means of compensating victims where the circumstances of the offence cannot be encompassed within the provisions of Part 5.49
Position within traditional aims of sentencing
10.27 The Victorian Law Reform Committee considered that reparation was consistent with the traditional aims of sentencing in the following respects:
- First in restoring the balance, reparation may accord with the just punishment for an offence.
- Secondly, reparation may serve as a deterrent either by ensuring that offenders do not profit from their offences or by making the act of reparation so unpleasant that the offender will be dissuaded from repetition.
- Thirdly, reparation may serve rehabilitative purposes in that the act of making reparation may be the first step in an offender’s change of attitude and behaviour.
- Finally, reparation may serve the denunciatory aims of sentencing by making it clear that conduct which damages property interests of others is unacceptable to the community.50
10.28 The view of the Australian Law Reform Commission is that the provisions as they stand are “important ways of taking account of the interests of victims of crime” and should, therefore, continue to be available.51 This illustrates the difficulty of accommodating reparation within the traditional aims of punishment. Its elevation to a sentencing option52 would lead to a change in the relationships between offenders, victims and the State within the criminal justice system. At least in part, restitution shifts emphasis from the State’s punishment of infractions of its laws to victim impact.53
10.29 The Victorian Law Reform Committee, after initially considering that reparation should be an aim of the sentencing process, concluded that the predominant purpose of reparation orders should be to compensate victims of crime and that they should, therefore, be treated as orders ancillary to sentencing.54 The Commission agrees. Reparation is not itself an aim of sentencing. Reparation orders are ancillary to the sentencing process.55
10.30 This is clear at least with respect to orders for compensation. The relief provided for in the former s 437 of the Crimes Act 1900 (NSW)56 was held to be sui generis, being neither a civil claim nor replacing a civil claim.57 Justice Jacobs noted with respect to the amount of compensation:
The amount determined is in no way a punishment of the convicted person. It is, as the section says, a compensation to the aggrieved person for the injury that the convicted person has done by reason of the felony.58
Or, in the words of Justice O’Brien:
In all respects now relevant the jurisdiction to give a direction is a civil adjunct to a conviction for an offence in New South Wales occasioning injury. The sum (which excludes punitive damages) is to be assessed upon the principles applicable to the assessment of damages at law and the direction is enforceable only against the property of the offender.59
Restitution
Current provisions
10.31 Section 438 of the Crimes Act 1900 (NSW) provides for the restitution of property stolen, embezzled or received by an offender in contravention of the Act. A discretion resides in the Court under s 438(2) to order restitution even where an offender has been acquitted. A related set of provisions is in Part 11 of the Criminal Procedure Act 1986 (NSW) which allows a court to order the return of property in police custody to its true owner.60 Notwithstanding its presence in Part 12 of the Crimes Act (which relates to sentences), s 438 cannot be considered an integral part of the sentencing process. It is merely a means by which property is restored to its rightful owner.
Deficiencies
10.32 The Attorney General’s Sentencing Review raised the question of consolidating the provisions of the Crimes Act 1900 (NSW) and the Criminal Procedure Act 1986 (NSW) in this area. An issue was also raised with respect to the powers of Local Courts in instances where an offender is acquitted. Section 438(2) provides that, where a person indicted for an offence is acquitted, the Court may still order restitution. The concern was that use of “indicted” might not extend powers to the Local Court. It was submitted that, despite the definition of “indictment” in the Crimes Act 1900 (NSW) which includes “any information presented or filed as provided by law for the prosecution of offences,”61 the question of the powers of the Local Court should now be put beyond doubt.62 Further deficiencies were highlighted by the Law Society which submitted that s 438 is incomplete in circumstances where an accused is “acquitted, discharged or the charge against the defendant is dismissed.”63
Proposals for reform
10.33 One suggested reform is to redraft the provision as follows:
Where a person has been charged with an offence involving property and the court is satisfied on a balance of probabilities that the property has been acquired by an offence involving fraud or dishonesty, the court may order the restitution of that property to the person who appears to be entitled to possession of it.64
This draft section removes the problem posed by the use of “indicted” and, by focusing on the commencement of the criminal procedure (charging) rather than the possible outcomes (for example, acquittal, discharge or dismissal), gives the Courts broader powers to order the return of property. The Commission invites comments on this proposal.
Compensation
10.34 Part 6 of the Victims Compensation Act 1987 (NSW), which deals with compensation as an order ancillary to the sentencing process, divides offences causing injury into two categories, namely, major offences and minor offences. A major offence is an indictable offence, any offence under the Crimes Act 1900 (NSW), or one where proceedings are taken in the Supreme Court in its summary jurisdiction.65 A minor offence is an “offence (whether indictable or summary) for which proceedings are taken summarily, other than an offence for which proceedings are taken in the Supreme Court in its summary jurisdiction.66 The provisions for dealing with each are mostly the same except with regard to the prescribed sum payable by the offender and the means of enforcement.
Major offences
10.35 With respect to major offences, s 53 of the Act provides that, on conviction, the Court may, of its own motion or on an application by or on behalf of an aggrieved person,67 direct that a sum not exceeding the prescribed amount be paid out of the property of the offender to any aggrieved person or persons by way of “compensation for any injury or loss sustained through, or by reason of, the offence” or any other offences taken into account at sentencing under s 447B of the Crimes Act 1900 (NSW).
10.36 Under s 52 an aggrieved person is a person sustaining injury by reason of the offence (or an offence taken into account), or a close relative of a person whose death has been caused. The prescribed amount for a major offence is $20,000 or $10,000 if the Court is exercising summary jurisdiction (except for the Supreme Court). Although “injury” is generally defined for the purposes of the Act as personal injury excluding injury arising from loss or damage to property, Part 6 expressly covers “loss” in addition to injury. This covers economic loss, including damage to property.68
10.37 Factors to be taken into account by a court in determining what sum is to be paid under a direction for compensation are listed in s 55:
(a) any behaviour, condition, attitude or disposition of the aggrieved person which directly or indirectly contributed to the injury or loss sustained by the aggrieved person;
(b) any amount which has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted; and
(c) such other matters as it considers relevant.
10.38 The procedure for enforcement of a direction is outlined in s 57. Any sum payable is essentially treated as a civil judgment. Imprisonment is not included as a sanction for failure to pay.
Minor offences
10.39 The provisions for minor offences69 are essentially similar to those for major offences except that the prescribed amount is not greater than $1,000.70 Enforcement is covered by s 65 which provides:
A direction for compensation shall be deemed to be a conviction or order whereby a sum of money is adjudged to be paid within the meaning of the Justices Act 1902.
10.40 Under s 87(1) of the Justices Act 1902 (NSW), when a person, against whom an order is made, does not pay in accordance with the terms of the order, that person may, by warrant, be committed to prison by an authorised justice for a term in accordance with s 87(2) of that Act.
10.41 An inconsistency exists in the area of enforcement under s 65 Victims Compensation Act. If the non-payment of compensation by an offender is treated in the same way as non payment of a fine under this section, then the result may be the return of the offender to the court to face what may ultimately be a custodial penalty.71 This is clearly inconsistent with the provisions for more serious offences which result only in a process akin to civil enforcement. There is a certain amount of perversity in the possibility that one who commits a minor offence may ultimately be imprisoned while one who commits a major offence may not. The Law Society argues that this section should be abolished. 72 The Commission agrees.
Offender’s ability to pay
10.42 The consideration of an offender’s ability to pay is usually not relevant to civil claims.73 However, it is important with respect to orders for compensation both from the point of view of offenders and victims. It is clear that unless the ability of an offender to pay is considered, it becomes a completely random matter whether a victim is paid or not.74 It is generally accepted that, in most cases, offenders will have limited ability to pay.75 Lanham suggests that there are “strong policy arguments in favour of taking the offender’s means into consideration”:
In particular, compensation orders against those without means may impede their rehabilitation and may induce them to commit further crimes in order to pay the compensation.76
It is thus possible that an approach ignoring an offender’s ability to pay may not achieve full justice between offender and victim, with the possibility of an outcome detrimental to both sides.77
10.43 A trend towards introducing consideration of the means of offenders and the likely effect of orders on their rehabilitation originated in England.78 In Victoria, the Sentencing Act 1991 (Vic) provides, in s 86(2), that a court may, in determining the amount and method of payment of compensation, take into account the ability of an offender to pay. This is, however, a step short of mandatory consideration of such factors.79 In South Australia and Western Australia a payment of compensation must not be ordered if the court is satisfied that an offender is not able to comply or such an order would prejudice the welfare of the dependants of the offender.80
10.44 Such considerations have not been expressly adopted in New South Wales legislation. However, the Victims Compensation Act 1987 (NSW) now lists, in s 55, a further factor of “such other matters as [the court] considers relevant” in determining the sum to be paid in a direction for compensation. In the Commission’s view, this provision is sufficient to encompass a consideration of the offender’s ability to pay where relevant.
CONFISCATION ORDERS
10.45 The last decade has seen an influx of new legislation, at both Federal81 and State82 levels, aimed at confiscating the assets and proceeds of criminal activity. The aim of this legislation is to provide for forfeiture of proceeds of crime independently of the sentence imposed on the offender.
The rationale of confiscation orders
10.46 At base, the purpose of confiscation orders is to ensure that individuals or groups are not able to enjoy money or property acquired as a result of criminal activity. This is intended to strike at the profit motivation for crime. Introducing the New South Wales legislation, the then Attorney General, the Hon John Dowd, said its aim was to
strike at the heart of major organized crime by attacking the primary motive - profit - and preventing the re-investment of that profit in further criminal activity.83
That this motive exists has been long recognised. Temby quotes Frank Costigan as saying:
The first thing to remember is that the organisation of crime is directed towards the accumulation of money and with that power. The possession of the power that flows with great wealth is to some people an important matter in itself, but this is secondary to the prime aim of accumulating money. Two conclusions flow from this fact. The first is that the most successful method of identifying and ultimately convicting major organised criminals is to follow their money trails. The second is that once you have identified and convicted them you take away their money; that is, the money which is the product of their criminal activities.84
10.47 Unfortunately, the history of the legislation suggests that it has not made any significant difference to crime, and it is doubtful that legislation of this type can be made effective against large-scale organised crime.85 Some commentators have suggested that the need for confiscation legislation could be obviated by a better use of fines and restraining orders.86
The legislation in New South Wales
10.48 The Confiscation of Proceeds of Crime Act 1989 (NSW) is designed to create a system which will enable the State to deprive criminals of the proceeds and benefits of criminal activity, as well as to provide law enforcement agencies with significant investigative powers.87 The Act creates two forms of confiscation orders:
- A forfeiture order, which allows the court to forfeit tainted property to the State.88 “Tainted property” is very broadly defined to include property used in connection with the offence and “any property derived ... directly or indirectly, from the commission of the offence.”89
- A pecuniary penalty order, which is a financial sanction distinguishable from a punitive fine by the fact that it is calculated by reference to the benefits derived from the criminal acts.90
10.49 Both orders are enforced independently of the sentencing process. Confiscated property goes to the State.91 Provision exists in the Victims Compensation Act 1987 to allow confiscated funds to be allocated to the victims’ compensation scheme.92
10.50 Proceedings for confiscation orders are most commonly instigated by the Director of Public Prosecutions.93 The Act requires that the offender be convicted of a serious offence, defined expansively as any offence that may be prosecuted on indictment.94 “Conviction” is also broadly defined,95 extending to orders under s 556A of the Crimes Act 1900 (NSW)96 and abscondment.97
The civil nature of confiscation
10.51 The law of forfeiture is derived from the old civil remedies of deodand and attainder.98 The tendency in most Australian jurisdictions has been to keep confiscation actions civil in nature, even though they require a criminal conviction before they proceed.99 The civil aspect of confiscation manifests itself in the application of the civil standard of proof to applications under the Act.100 Indeed, in forfeiture cases, the legislation shifts the onus of proof to defendants to show that property in their possession at the time of or after the commission of an offence was not used in connection with the offence.101 The onus is also shifted to the defendant in cases of pecuniary penalty orders to show that an increase in the value of the property was attributable to causes unrelated to the commission of the offence.102
The impact of the legislation
10.52 The Confiscation of Proceeds of Crime Act is a very powerful and wide-ranging piece of legislation, with the potential for excessively harsh effects not only for offenders, but also for third parties who may be innocently or indirectly involved with the proceeds of crime. Not surprisingly, the legislation has been described as draconian.103
10.53 Two approaches may alleviate the potentially unacceptable consequences of the legislation. First, confiscation orders could be integrated into the sentencing process. Secondly, the Act could be amended to reduce the likelihood of potential injustices. The first approach touches directly on the law of sentencing and so requires comment by the Commission. Although the second approach is outside our terms of reference, we comment briefly on one aspect of the legislation which would render its application more just.
The integration of confiscation into the sentencing process
10.54 The argument in favour of integrating confiscation into the sentencing process is that what are said to be the unacceptably harsh consequences of confiscation will be reduced by reference to sentencing principles, especially proportionality and totality.104 This approach finds support in the case law of other jurisdictions105 and in s 5(2A) of the Sentencing Act 1991 (Vic) which allows the court in sentencing an offender to have regard to:
- a forfeiture order made in respect of property used in the commission of the offence (but not property derived or realised as a result of the offence); and
- a pecuniary penalty order relating to benefits in excess of profits (but not profits themselves) derived from the commission of the offence.
10.55 The Commission does not favour the integration of confiscation into the sentencing process for the following reasons:
- It is by no means obvious how the imposition of either a forfeiture order or a pecuniary penalty order, both of which are aimed at the disgorgement of gains, is to be justified within the traditional objectives of punishment. For example, what is the relevance of rehabilitation to the making of such an order? Further, how is proportionality to apply to the imposition of such an order if it is clear that the legislature intends confiscation in addition to (other) punishment?
- Confiscation proceedings will, for practical reasons, generally have to be considered independently of the sentencing hearing, and usually after it. Procedurally, this will create difficulties for the sentencing process.106 For example, how will the totality principle be applied at the sentencing hearing when the confiscation proceedings are still to be determined?
Amendment of the legislation
10.56 The Commission is of the view that what are said to be the potentially harsh and unjust consequences of the confiscation legislation can best be avoided by investing the courts with a wide discretionary power to refuse to order forfeiture in appropriate cases. Prima facie, this power exists in the Act which requires the court, in making a forfeiture order, to have regard to any hardship which the order may cause to the offender or a third person.107 Hardship is not that which necessarily results from the deprivation of the property in question,108 but that which is disproportionate in all the circumstances of the case.109 The legislation specifies that, in determining any hardship that is likely to arise on the part of a person convicted of a serious offence, the court cannot take into account the sentence imposed for that offence.110
10.57 The Commission considers that the hardship provision is generally sufficient to enable the courts to avoid the potentially unjust consequences of the Act. There is, however, one respect in which the Act is too restricted. Forfeiture orders operate on an “all or nothing” basis.111 This raises the possibility that a court would have to order the “forfeiture of a very valuable tract of bushland which was unused by the offender other than for the growing of a single cannabis plant”.112 In practice, this consequence has been avoided by finding that such a result would produce a consequence of “horrendous hardship” which would be disproportionate to the nature of the offence which was committed.113 The problem with this approach is that it frustrates the intention of the legislature where, but for the manifest injustice of a full forfeiture order, the case is otherwise an appropriate one for confiscation. With partial orders, the harshness of “all or nothing” is taken away, and judges are more accurately able to modify their orders to take into account hardship and the incidental effects of these orders. The Commission is, therefore, of the view that the Act should be amended to allow partial forfeiture orders.
QUESTIONS ARISING IN CHAPTER 10
1. Ought imprisonment to be retained as a sanction of last resort for fine defaulters generally? Or in the case of wilful default only?
2. Whether or not imprisonment is retained as a sanction of last resort, what other sanctions or procedures should be put in place to encourage fine defaulters to pay?
3. Should a day-fine system be introduced in New South Wales? If so, should it be based on income or on the financial status of the offender?
4. What is the most appropriate mode of assessing the income or financial status of the offender?
5. Should the privacy of the offender’s income be protected? If so, how might this best be achieved?
6. Should infringement notices be regulated with greater precision?
7. If so, should such regulation be via a general Infringements Act or on an ad hoc basis?
8. What criteria should govern the classification of offences as infringement offences and the procedures relating to them?
9. Should the provisions of s 438 of the Crimes Act 1900 (NSW) be retained?
10. Should the provisions of s 438 of the Crimes Act 1900 (NSW) be amended to clarify the position of the Local Court and widen the range of circumstances in which the court may order restitution?
11. What is the most appropriate means of enforcing restitution orders?
12. Should confiscation orders be integrated into the sentencing regime? If so, what changes should be made to the Confiscation of Proceeds of Crime Act 1989 (NSW)?
13. Should the Act authorise partial forfeiture of property?
FOOTNOTES
1. For example, for the period 1990-1994, over 50% of persons found guilty at trial in the Local Court and sentenced each year, were fined. In 1994, 59.6% (50,352) of persons found guilty were fined: New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1994 at 16-17.
2. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Court Statistics 1994 at 16-17. It is unclear whether these figures include contested infringement notices.
3. R Jochelson, Fine Default: Enforcing Fine Payment (NSW Bureau of Crime Statistics and Research, Sydney, 1995) at 3.
4. See Australian Law Reform Commission, Sentencing (ALRC 44, 1988); G Zdenkowski, Imprisoning fine defaulters in New South Wales (1985) 10 Legal Service Bulletin 102; R Jochelson, Fine Default: Enforcing Fine Payment (NSW Bureau of Crime Statistics and Research, Sydney, 1995).
5. Justices Act 1902 (NSW), s 80A.
6. See Budget Nursery Pty Ltd v The Commissioner of Taxation (1989) 42 A Crim R 81.
7. See Parliament of New South Wales, Report of the Inquiry Into the Central Industrial Prison Dated August 1988 by His Honour A G Muir QC (Government Printer, 1988) 3 Volumes (an inquiry into the assault of Jamie Partlic while being detained as a fine defaulter in the CIP).
8. Australian Law Reform Commission, Sentencing (ALRC No 44, 1988) at para 108.
9. In some jurisdictions there is an obligation to conduct such an inquiry: see, eg, Justices Act 1902 (NSW) s 80A. However, the form of the enquiry is not obligatory and no consequence flows from failure to conduct it. When such an enquiry is conducted it is a relatively informal process and is certainly not a rigorous examination of the offender’s financial status.
10. Courts almost invariably allow time to pay, if requested, and usually make this option known to the offender. In the case of unrepresented offenders the courts always do so.
11. Law Reform Commission of Tasmania, Report on Fines (Tas LRC 41, 1985) at 9.
12. Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at para 23.
13. H Thornstedt, “The Day-Fine System in Sweden” [1975] Criminal Law Review 307.
14. For a more detailed description of this process see: ALRC, Sentencing: Penalties (DP 30, 1987) at para 25. For a discussion of the history and operation of the systems in Scandinavia and Germany, see Thornstedt (1975); G Grebing, The Fine in Comparative Law: A Survey of 21 Countries (University of Cambridge, Institute of Criminology, 1982).
15. ALRC Sentencing: Penalties (DP 30, 1987) at para 25.
16. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 114. Compare Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) at 384; ALRC, Sentencing: Penalties (DP 30, 1987) at para 86.
17. Australian Law Reform Commission, Sentencing (ALRC No 44, 1988) at para 144.
18. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 May 1994 at 1861.
19. See generally Justices Act 1902 (NSW) s 86A-95 as amended by Justices (Fine Default) Amendment Act 1994 (NSW). See also A Freiberg and R Fox, Enforcement of Fines and Monetary Penalties: Working Paper (National Road Transport Commission, Melbourne, November 1994).
20. For the week ending 3 September 1995, there were two fine defaulters attending periodic detention centres in New South Wales (information provided by the Department of Corrective Services).
21. In 1994/95, there were 36,495 licences cancelled by the RTA. Between July 1994 and January 1995, 21,688 licences were suspended by the RTA.
22. Pursuant to Justices Act 1902 s 87.
23. Jochelson (1995): 1993 figures are used because 1994 figures were affected by a moratorium. The figure does not take into account those already in custody or on remand who “called in” their warrants to serve them concurrently with other sentences. There are also no statistics for fine defaulters who have “cut out” their fines in police lock-ups.
24. Under the current enforcement system, unpaid fines or fines which are not expiated through a non-custodial sanction eventually result in a warrant being issued. As at 10 February 1995, there were 397,074 individuals with 744,160 warrants outstanding for unpaid or unexpiated fines. Again, the figures do not take into account the factors listed in the previous footnote: Jochelson (1995) at 4.
25. R Jochelson, Fine Default: Enforcing Fine Payment (New South Wales Bureau of Crime Statistics and Research, August 1995).
26. Jochelson at 41-43.
27. B Lagan, “Moves to Cut Jail Population” Sydney Morning Herald (14 September 1995) at 2.
28. Justices Act 1902, s 89E(2).
29. The Justices (Fine Default) Amendment Act 1994 amended the Justices Act to provide civil enforcement as an alternative to a warrant of commitment. See now s 89E of the Justices Act 1902.
30. Information provided by the Director of Local Courts Administration, Letter, 28 November 1995.
31. Other jurisdictions have provision for the cancellation of licences in respect of certain offences: see Crimes Act 1900 (ACT) s 432; Sentencing Act 1995 (WA) s 105; Sentencing Act 1991 (Vic) s 89.
32. In 1992, the proportion of unlicensed drivers was estimated at 5%, while the proportion of unregistered vehicles was estimated at 2%: see Parliament of NSW, Report of the Roads and Traffic Authority for the Year Ended 10 June 1993 at 27. These figures were not revised in the 1994 Report: see Parliament of New South Wales, Report of the Roads and Traffic Authority for the Year Ended 30 June 1994 at 22.
33. Set up under the Registration of Interests in Goods Act 1986 (NSW).
34. For statistics, see para 10.2.
35. See R G Fox, “Infringement Notices: Time for Reform” (Trends and Issues in Crime and Criminal Justice No 50, Australian Institute of Criminology, Canberra, 1995) at 1.
36. Fox (1995) at 1.
37. Australian Law Reform Commission, Multiculturalism and the Law, (ALRC 57, 1992) at Ch 9.
38. For example, following the decriminalisation of possession of small quantities of marijuana in South Australia, the prosecution for marijuana related offences rose from 4000 in 1987 to 17,500 in 1993, an increase of 450%: D Brown, D Farrier and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and the Criminal Process of New South Wales (2nd ed, Federation Press, Sydney, 1996) Volume 1 at 245.
39. R G Fox, Criminal Justice on the Spot: Infringement Penalties in Victoria (Australian Studies in Law, Crime and Justice, Australian Institute of Criminology, Canberra, 1995). See also R Fox, “On Punishing Infringements” in A Kapardis (ed), Sentencing: Some Key Issues (La Trobe University Press, Bundoora, 1995) Chapter 2.
40. R G Fox, “Infringement Notices: Time for Reform?” (Trends and Issues in Crime and Criminal Justice No 50, 1995) at 5.
41. Australian Law Reform Commission, Multiculturalism and the Law (ALRC 57, 1992) at Ch 9.
42. Parliament of Victoria, Law Reform Committee, Restitution for Victims of Crime: Interim Report (PP 54, 1993) at xv and 13.
43. See paras 9.69-9.72.
44. As with young offenders in South Australia: see C Cunneen and R White, Juvenile Justice: An Australian Perspective (Oxford University Press, Melbourne, 1995) at 249.
45. See paras 5.86-5.92.
46. See paras 9.55-9.56.
47. Whereby the State pays victims on application but reserves the right to seek indemnity from offenders: Victims Compensation Act 1987 (NSW) Part 5
48. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 18 November 1987 at 16272.
49. The Attorney General’s Sentencing Review suggests that the “clear purpose” of the provision is to enable the victim to take proceedings for compensation in the one court action: Attorney General’s Sentencing Review at 39. This observation appears misconceived given the limits on the amount recoverable and the availability of other avenues of compensation, at least with respect to personal injury.
50. Parliament of Victoria, Law Reform Committee, Restitution for Victims of Crime: Final Report (PP 96, 1994) at 6.
51. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 142.
52. As has occurred in South Australia: Criminal Law (Sentencing) Act 1988 (SA) s 53
53. These issues are canvassed in the consideration of problems with the admissibility of victim impact statements, below at paras 11.15-11.19. See also the discussion in D R Miers, Compensation for Criminal Injuries (Butterworths, 1990) at 294-295.
54. Parliament of Victoria, Law Reform Committee, Restitution for Victims of Crime: Final Report (PP 96, 1994) at xviii.
55. See para 3.21.
56. Now provided for in Part 6 of the Victim’s Compensation Act 1987 (NSW).
57. R v Forsythe [1972] 2 NSWLR 951 at 953. It should be noted, however, that the judges in this case also paid regard to the fact that the Criminal Injuries Compensation Act 1967 (NSW) provided for payment from consolidated revenue of any sum not paid by an offender: s 5(2). Civil liability for wrongs has been formally preserved by Victims Compensation Act 1987 (NSW) s 58(2).
58. R v Forsythe [1972] 2 NSWLR 951 at 953.
59. R v C [1982] 2 NSWLR 674 at 692.
60. It should be noted that property is, in most cases, returned to its rightful owner as a matter of course.
61. Crimes Act 1900 (NSW) s 4(1).
62. Attorney General’s Sentencing Review at 60.
63. Law Society of New South Wales, Submission to Attorney General’s Sentencing Review (25 July 1994).
64. D Lanham “Restitution Orders” (1986) 10 Criminal Law Journal 394 at 408. This draft section was the result of a consideration of the provisions of all Australian jurisdictions at the time: Criminal Law Consolidation Act 1935 (SA) s 201 (replaced by Criminal Law (Sentencing) Act 1988 (SA) s 52); Criminal Code (Qld) s 685, 685A (replaced by Penalties and Sentences Act 1992 (Qld) s 35(1)(a)); Criminal Code (WA) s 717-718 (replaced by Sentencing Act 1995 (WA) s 120-122); Criminal Code (Tas) s 424; Penalties and Sentences Act 1985 (Vic) s 90 (replaced by Sentencing Act 1991 (Vic) s 84); and Criminal Code (NT) s 393 (replaced by Sentencing Act 1995 (NT) s 87-88). The proposal appears to have been considered in framing Criminal Law (Sentencing) Act 1988 (SA) s 52.
65. Victims Compensation Act 1987 (NSW) s 52.
66. Victims Compensation Act 1987 (NSW) s 60.
67. Victims Compensation Act 1987 (NSW) s 53(2).
68. Murphy v H F Trading Co Pty Ltd (1973) 47 ALJR 198, a case involving the interpretation of s 21B Crimes Act 1914 (Cth). See also the definition of “compensation for expenses”: Victims Compensation Act 1987 (NSW) s 10(1); and D Lanham “Criminal Fraud and Compensation Orders” (1986) 10 Criminal Law Journal 297 at 301.
69. Victims Compensation Act 1987 (NSW) s 60-65.
70. Victims Compensation Act 1987 (NSW) s 61.
71. Attorney General’s Sentencing Review at 39.
72. Law Society of New South Wales, Submission to Attorney General’s Sentencing Review (25 July 1994).
73. Except in a claim for exemplary damages: Rookes v Barnard [1964] AC 1129 at 1228; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 472.
74. D R Miers, Compensation for Criminal Injuries (Butterworths, London, 1990) at 320.
75. D Brown, D Farrier and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (2nd ed, Federation Press, Sydney, 1996) Vol 2 at 1390.
76. D Lanham “Criminal Fraud and Compensation Orders” (1986) 10 Criminal Law Journal 297 1t 313.
77. Possible outcomes under such a regime are discussed by D R Miers, Compensation for Criminal Injuries (Butterworths, London, 1990) at 291-295.
78. D Lanham “Criminal Fraud and Compensation Orders” (1986) 10 Criminal Law Journal 297 at 312 draws attention to s 1 Criminal Justice Act 1972 (Eng) and s 35 Powers of Criminal Courts Act 1973 (Eng). See also D Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) at 328-331.
79. Parliament of Victoria, Law Reform Committee, Restitution for Victims of Crime: Final Report (PP 96, 1994) at 43.
80. Criminal Law (Sentencing) Act 1988 (SA) s 13, Sentencing Act 1995 (WA) s 112(3).
81. Proceeds of Crime Act 1987 (Cth). The Customs Act 1901 (Cth) also contains significant forfeiture provisions.
82. Confiscation of Proceeds of Crime Act 1989 (NSW); Crimes (Confiscation of Profits) Act 1986 (Vic); Crimes (Confiscation of Profits) Act 1986 (SA); Crimes (Confiscation) Act 1989 (Qld); Crimes (Confiscation of Profits) Act 1988 (WA); Crimes (Confiscation of Profits) Act 1993 (Tas); Proceeds of Crime Act 1991 (ACT); Crimes (Forfeiture of Proceeds) Act 1988 (NT). In NSW, civil forfeiture independent of criminal prosecution can also occur: see Drug Trafficking (Civil Proceedings) Act 1990 (NSW).
83. New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 3 May 1989 at 7325.
84. I Temby, “The Proceeds of Crime Act - One Year’s Experience” (1989) 13 Criminal Law Journal 24 at 30.
85. While this question is of importance and is of significant interest, it is beyond the scope of this reference. For academic criticism of the Act’s effect on organised crime, see D Fraser, “Lawyers, Guns and Money: Economics and Ideology on the Money Trail” in B Fisse, D Fraser, R Fox (eds), The Money Trail (Law Book Company, Sydney, 1992). Some statistical evidence can be found in National Crime Authority, National Proceeds of Crime Conference - Working Party Paper (1993), Attachment 4.
86. See B Fisse, “Confiscation of Proceeds of Crime: Discretionary Forfeiture or Proportionate Punishment?” (1992) 16 Criminal Law Journal 13.
87. Confiscation of Proceeds of Crime Act 1989 (NSW) s 3.
88. Section 20 of the Act allows third parties who can show (on balance of probabilities) a legitimate interest in the property to make applications for their interest in “tainted property”.
89. Confiscation of Proceeds of Crime Act 1989 (NSW) s 4(1).
90. See R v Fagher (1989) 16 NSWLR 67 at 75-6
91. Confiscation of Proceeds of Crime Act 1989 (NSW) s 18(1) (forfeiture orders).
92. Victims Compensation Act 1987 (NSW) s 65(g).
93. Confiscation of Proceeds of Crime Act 1989 (NSW) s 4(1) (“appropriate officer”). In drug trafficking cases, provisions exist for the Crime Commissioner to initiate proceedings. This is done for consistency and convenience purposes.
94. Confiscation of Proceeds of Crime Act 1989 (NSW) s 7.
95. Confiscation of Proceeds of Crime Act 1989 (NSW) s 5.
96. Confiscation of Proceeds of Crime Act, 1989 (NSW) s 5(1)(b).
97. Confiscation of Proceeds of Crime Act, 1989 (NSW) s 5(1)(d) and s 6.
98. Attainder was the automatic forfeiture due to a sentence of death, treason or outlawry, under which civil rights and capacities to hold property were extinguished. It included a notion of “corruption of the blood”, which also limited the right of descendants to inherit. It was abolished in England in 1870, and the Australian colonies followed suit. Deodand allowed the Crown to confiscate the instruments of crime or damage in the case of a death. Its roots were religious, with its literal meaning being “that which is given to God”. It also was abolished in the 19th Century.
99. Although Victorian judges have tended to apply sentencing principles to confiscation much more than other jurisdictions - see R v Allen (1989) 41 A Crim R 51 and R v Winand (1994) 73 A Crim R 497.
100. For example, Confiscation of Proceeds of Crime Act 1989 (NSW) s 18(4)(b).
101. Confiscation of Proceeds of Crime Act 1989 (NSW) s 18(4)(a).
102. Confiscation of Proceeds of Crime Act 1989 (NSW) s 25(4).
103. R v Galek (1993) 70 A Crim R 252 at 258 per Allen J, 259 per Hunt CJ at CL.
104. See B Fisse, “Confiscation of Proceeds of Crime: Discretionary Forfeiture or Proportionate Punishment?” (1992) 16 Criminal Law Journal 13; A Freiberg, “Criminal Confiscation, Profit and Liberty” (1992) 25 Australian and New Zealand Journal of Criminology 44.
105. Consider R v McDermott (1990) 45 A Crim R 105; R v Tapper (1992) 111 ALR 347; R v Allen (1989) 41 A Crim R 51; R v Winand (1994) 73 A Crim R 497; DPP v Kizon (1992) 6 WAR 353.
106. See B Fisse, “Penal Justice Under Proceeds of Crime and Money Trail Legislation in Australia - Paradigms Lost? Paradigms Found?” Proceedings of the 29th Annual Legal Convention (Law Council of Australia, 1995) 63 at 69-71.
107. Confiscation of Proceeds of Crime Act 1989 (NSW) s 18(1)(b)(ii).
108. See R v Lake (1989) 44 A Crim R 63 at 66 per Kirby P.
109. See generally R v Hadad (1989) 16 NSWLR 476; R v Bolger (1989) 16 NSWLR 115; R v Galek (1993) 70 A Crim R 252; DPP v Milienou (1991) 22 NSWLR 489. See also Taylor v Attorney-General (SA) (1991) 53 A Crim R 166.
110. Confiscation of Proceeds of Crime Act 1989 (NSW) s 18(2), on which see Bolger at 126-127 per Allen J.
111. R v Bolger (1989) 16 NSWLR 115.
112. Bolger at 126 per Allen J.
113. R v Galek (1993) 70 A Crim R 252 especially at 259 per Hunt CJ at CL. But note the dissenting judgment of Allen J. See also Bolger; Milienou.
