Sentencing

The defendant traded through a company with a prohibited name. On an application for a confiscation order, one of the issues was whether or not the benefit from the illegal activity should be calculated on the basis of the gross turnover of the business or the net profit. 

It was held that in a confiscation case, the court has to ask itself two questions:

(i) has a benefit been obtained as a result of, or in connection with, the commission of the crime (if it has not, that is the end of the inquiry); and

(ii) if so, what is the value of that benefit? In determining the first question, the test is whether the offender’s criminal acts have been a cause—in the sense of having materially contributed to—of obtaining the property.  Whether or not the property has been retained is irrelevant. In determining the value of any benefit, the court is not limited to considering the extent to which the offender benefited personally; nor is the concept of benefit to be equated with profit. It is the value of the property obtained, irrespective of the cost of obtaining it.

A judge’s findings on the two questions are findings of fact. He has a wide discretion when applying these principles and his order will stand if he has a proper evidential basis for it and he has not misdirected himself. In this case, the judge was right to look at turnover and not simply to limit the benefit to profits.