DPP v Roxroy Mendez
| Jurisdiction | Jamaica |
| Judge | Campbell, J. |
| Judgment Date | 18 March 2011 |
| Judgment citation (vLex) | [2011] 3 JJC 1802 |
| Date | 18 March 2011 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. HCV1290 OF 2003 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV1290 OF 2003
Ms. Tasha Manley, instructed by Director of State Proceedings for the Applicants.
Mr. Charles Johnson, instructed by H. Charles Johnson & Company for the Respondent.
Pecuniary Penalty Order - The Drugs Offences (Forfeiture of Proceeds Act, 1994 -Offenders Benefit Obtained - Assessment of Benefit Obtained – Realisable Benefit - Section 17(2), ‘the lesser sum’– Constitutionality of Confiscatory Orders.
Background
On the 14th June 2005, Roxroy Mendez, a former employee of Victoria Mutual Building Society (VMBS), pleaded guilty to 32 counts of money laundering. He was sentenced to two years imprisonment and fined $1,000,000.00; in lieu of payment of the fine, to serve one year imprisonment. He had been charged with offences, contrary to the Money Laundering Act, for falsifying the General ledger Account of his employer, by debiting various sums, and engaging in transactions which resulted in crediting sums to accounts in his name and persons connected to him. On the 24th July 2003, before the investigations into the charges had been completed, the Director of Public Prosecutions (DPP) was granted interim restraint orders. The Second Respondent, the wife of Mr. Mendez, had similar charges against her withdrawn; the Court then ordered that the pecuniary penalty applications against her be withdrawn.
On the 17th July 2003, the DPP had filed a fixed date claim, seeking to restrain several bank and investments accounts in the names of the First and Second Respondents, held severally or jointly with others at several financial institutions. On the 9th March 2004, VMBS had sought leave to intervene in the matter on the grounds that it would be affected by any order that the Court would make.
On the 27th October 2005, the DPP filed a Notice, seeking Orders that Roxroy Mendez had benefited from the offences of money laundering, and should be made to pay to the Crown the sums of £291,759.86, US$996,169.00 and J$418,573.15, being sums derived from those prescribed offences and that the restraint orders in place in respect of the several accounts be revoked on such a determination being made.
On the 28th February 2006, VMBS sought declarations that they had an interest in the money, the subject of the pecuniary penalty order, to the extent and value of £141,970 US$292,457.99 and J$465,866.66 and that those funds should be paid directly from the institutions where they were being held directly to VMBS, and that the costs incurred in the application be taken out prior to any funds being disbursed to the Crown. VMBS” application was subsequently withdrawn based on undertakings given by the Crown. Among the grounds on which the applications rested were the convictions of the First Respondent, and that the Crown was seeking a Pecuniary Penalty Order against the First Respondent.
The Statutory Framework
The statutory authority for the grant of pecuniary penalty orders are to be found in The Drugs Offences (Forfeiture of Proceeds) Act, 1994 , (The Act), which provides at S3 (2) for two orders:
‘Where a person is convicted of a prescribed offence committed after 15th August 1994, the Director of Public Prosecutions may apply to a Judge of the Supreme Court (hereinafter referred to as a Judge) for one or both of the following orders:
a) A forfeiture order against any property that is tainted property in relation to prescribed offence
b) A pecuniary penalty order against the person convicted in respect of the total value of any benefits derived by or accruing to the person convicted from the commission of the prescribed offence.’
The person against whom either order is directed must have been convicted of one of the offences in the schedule to the Act. The court is empowered to make an order for the confiscation of the total value of any benefits derived from the offender's commission of the offence.
The pecuniary penalty is more amply described at S14 of the Act, which provides that;
‘The Judge shall, if satisfied that the person has benefited from that offence, order him to pay to the Crown an amount equal to the value of his benefits from the offence or such lesser amount as the Judge certifies in accordance with section 17 to be the amount that might be realised at the time when the pecuniary penalty order is made.
An assessment by the Court of the benefits derived by the person is required by Section 17, which provides;
‘(1) Subject to subsection (2), the amount to be recovered under the pecuniary penalty order shall be the amount which the Judge assesses to be the value of the persons benefit from the prescribed offence.
The purpose of the Act is clearly penal. Its aim is to disgorge offenders of ill-gotten gains derived from the commission of a set of prescribed offences, by so doing deter, dissuade and hinder the targeted conduct. Mr. Justice Elias, in Neuberg, R v (2007) EWCA Crim 1997, in referring to the confiscatory scheme provided by the Criminal Justice Act 1988 , as amended by the Proceeds of Crime Act 1995 , the provisions of which are similar to those found in the Drug Trafficking Act 1994, and which itself is substantially similar to the Jamaican Legislation, quoted Lord Steyn in R v Rezvi 2003 1 AC 1099, at paragraph
;
‘“The provisions of the 1988 Act are aimed at depriving such (habitual) offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises.” That an application of the statutory principles can be draconian and lead to hardship is recognized but is not a bar to the assessments being made. Mr. Justice Elias appears to cast grave doubts on “whether there is a residual principle,” in the scheme of these confiscatory provisions for a judge's exercise of discretion with a view of mitigating the severity, injustice and harshness, that the orders so made may impose on persons.’
Counsel for the appellant had submitted that the Court had a broad – ranging discretion, which obliges the sentencing judge ‘to stand back’ and say ‘whether it's in the interest of justice to impose’ an order, if there is a significant risk of injustice, Mr. Justice Elias, in response, at para 36 of Neuberg , says;
‘However, it is plain from the legislation and the decision to which we have made reference that the orders will...
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