THE SOLICITOR-GENERAL OF NEW ZEALAND V RHODES & ORS HC AK CIV 2007-404-3773

THE SOLICITOR-GENERAL OF NEW ZEALAND V RHODES & ORS HC AK CIV 2007-404-3773 16 February 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-3773IN THE MATTER OF an application under the Proceeds of Crime Act 1991 BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND ALBERT JOHN RHODES First Respondent AND STEPHEN PAUL KISSLING Second Respondent AND GLENN THOMAS GOLLOP Third Respondent Hearing: 15 February 2010 Appearances: D G Johnstone for applicant J Krebs for Albert Rhodes Judgment: 16 February 2010JUDGMENT OF WINKELMANN JCrown Solicitor, Auckland McVeagh Fleming, Auckland Counsel: Jonathan Krebs, Barrister, Napier[1] Mr Rhodes has been convicted, along with seven others, of serious drug offending. He was convicted of a multiplicity of offences including the importation of pseudoephedrine, and the manufacture and supply of methamphetamine. He was sentenced to life imprisonment in respect of the convictions with a minimum period of imprisonment of 10 years. The Solicitor-General now applies under the Proceeds of Crimes Act 1991 (the Act) for a pecuniary penalty order in the sum of $460,000 and for confiscation of property. The amount of $460,000 is calculated by reference to the sale value of methamphetamine manufactured by Mr Rhodes and others and by reference to other supplies of methamphetamine occurring outside the period of manufacture. [2] The applications are made for confiscation orders both on the basis that the property is tainted property, and that it is property available in terms of the Act to satisfy the penalty orders. I note that the Act has now been replaced by the Criminal Proceeds (Recovery) Act 2009 which came into force on 1 December 2009, but by virtue of s 172 of the Criminal Proceeds (Recovery) Act, the Act continues to apply to this application. [3] Mr Rhodes opposes the making of the orders sought on the grounds that the penalty amount the Solicitor-General applies far exceeds any benefits he received from the offending. He says first that the price his group obtained for the methamphetamine was a price for ounce lots and was therefore no more than $10,000 per ounce. Secondly, Mr Rhodes argues that since there were other co- offenders who shared any benefits, that should be taken into account in fixing the level of pecuniary penalty. [4] During the course of argument the Solicitor-General accepted $10,000 per ounce as the price likely to have been obtained by Mr Rhodes for the methamphetamine. I proceed on that basis. I am satisfied from the intercepted conversations and communications that that is an appropriate value to proceed with in calculating the benefits received by the group at least.[5] In relation to the confiscation orders sought by the Solicitor-General, Mr Rhodes concedes ownership of only some of the property. He claims that third parties, some represented before the Court in this proceeding, also have interests in the assets. It is anticipated that argument of those ownership issues will entail the receipt and consideration of lengthy evidence and the involvement of counsel for third parties. Counsel for the Solicitor-General and Mr Rhodes have agreed that resolution of some preliminary issues may well be determinative of the outstanding matters between the parties in this application, without the need for receipt of that evidence. These issues are: 1. What "benefits" for the purposes of the Act were produced by the offending? 2. What benefits did Mr Rhodes personally receive? 3. Should any pecuniary penalty order be reduced to take into account pecuniary penalty orders already made in respect of Mr Rhodes' co- offenders?Background facts[6] In June 2006 police executed a search warrant at the Highgate apartment of one of Mr Rhodes' co-offenders, Mr Paul Robinson. They found Mr Rhodes at the address along with a female companion. A search was carried out and the police found a baking dish with traces of methamphetamine, a blister pack of ContacNT pills (which contained pseudoephedrine) and hypophosphorous acid. They also found $24,000 cash in the handbag of Mr Rhodes' female companion. Mr Rhodes accepts that the cash is his but said at trial that it was cash generated from a second- hand store he owned and that he was carrying it with him for the purchase of second- hand goods. [7] In a follow up to the search of the apartment the police searched storage units linked to Mr Rhodes and Mr Robinson. There they found a large volume of iodine,and a substantial number of pseudoephedrine tablets. In another unit associated with Mr Rhodes they found a large quantity of iodine. [8] The police then commenced a covert operation monitoring the communications of the two offenders. The operation included the interception of conversations which began in early October 2006. It eventually expanded to include co-offenders Mr Stephen Kissling, Mr Glenn Gollop, Mr Wayne Smethurst, Mr Norman Burdett, Mr Alex Su and Mr Richard Rhodes. The police gathered evidence that these men were part of a drug ring. The offending detected through these means involved the importation by Mr Rhodes and his co-offenders Mr Alex Su, and Mr Wayne Smethurst of 8.491 kilograms of ContacNT granules containing pseudoephedrine. The police also gathered evidence of the following occasions of manufacture of methamphetamine: (a) Mr Albert Rhodes along with his co-offenders Mr Kissling and Mr Robinson, at a property in the Coromandel Peninsula (between 12 & 14 October 2006); (b) Mr Rhodes, Mr Kissling and Mr Robinson at an unknown location in Northland (between 20 & 22 October 2006); (c) Mr Rhodes, Mr Kissling and Mr Robinson at Mr Kissling's property at Whangamomona, King Country (between 4 & 5 November 2006); (d) Mr Rhodes and Mr Kissling at Waiuku (between 17 & 18 November 2006); and (e) Mr Rhodes and Mr Kissling at Waiuku (between 20 & 22 November 2006). [9] The evidence established that following each manufacture Mr Rhodes and Mr Kissling returned from isolated locations where the manufacture had taken place, and proceeded to supply methamphetamine to people in the Auckland region on acommercial basis. To a lesser extent, co-offenders Messrs Robinson, Richard Rhodes and Burdett were also involved in the supply of the product. [10] Mr Rhodes was convicted of five counts of manufacturing methamphetamine, 13 counts of supply, five counts of offering to supply methamphetamine, one count of conspiracy to manufacture methamphetamine, one count of importation of pseudoephedrine, three counts of possession of equipment capable of being used in the manufacture of methamphetamine, one count of possession of pre-cursor substances and one count of possession of materials capable of being used in the manufacture of methamphetamine. [11] In sentencing Mr Rhodes I determined that the manufacturing and supply operations were large scale and on-going. It is common ground between Mr Rhodes and the Crown that approximately 1.4 kilograms of methamphetamine was manufactured on the five occasions of manufacture. Some of that was seized by police, and it is agreed that the amount of methamphetamine manufactured and not recovered by the police was 1,008 grams. [12] As to Mr Rhodes' role in the offending, I found in sentencing him that he was the person in charge directing operations and that it was he who instigated the offending. At paragraph [47] of the sentencing notes I said:As to your role, the jury heard many hours of intercepted telephone conversations upon which I can readily form a view as to your role in the operation. It is you who organised Alex Su to travel to China and funded that part of the operation. In conversations with Alex Su you refer to yourself in a way which makes it clear that you were the person who was in charge; for example you referred to yourself having sent "two good men." You were the common actor through all five of the manufacturings. It is apparent that in some instances, Stephen Kissling came to you for directions and for final decisions on issues of supply to difficult customers. It was you who decided to keep Glenn Gollop out of the manufacturing ring. It is also apparent that you decided when manufacturing would take place, and directed others to make the preparations.Statutory framework[13] The statutory provisions in relation to pecuniary penalty orders appear in ss 24-29 of the Act. In accordance with s 24 pecuniary penalty orders may apply tobenefits provided to or derived by a person either within or outside New Zealand and property that comes into the possession or under the control of that person, again either within or outside New Zealand. Before a pecuniary penalty order may be made under s 25 the Court must be satisfied that the respondent has derived benefits from the commission of a serious offence. The term "serious offence" is defined in s 2 as meaning an offence punishable by imprisonment for five years or more. All of the offences for which Mr Rhodes were convicted meet that threshold. It is common ground that benefits were derived from the manufacturing and supply offences. [14] The amount of the benefits derived is to be assessed in accordance with the provisions of ss 27 & 28. Of these two, only s 27 is relevant to the present application. Sections 27(2) & (3) set out the following methodology for assessment of benefit:(2) For the purposes of an application for a pecuniary penalty order, the value of the benefits derived by a person (in this subsection referred to as the "defendant") from the commission of an offence or offences shall be assessed by the Court having regard to evidence before the Court concerning all or any of the following matters: (a) The money, or the value of the property other than money, that came into the possession or under the control of - (i) The defendant; or (ii) Another person at the request or direction of the defendant - by reason of the commission of the offence or any of the offences: (b) The value of any other benefit provided to - (i) The defendant; or (ii) Another person at the request or direction of the defendant - by reason of the commission of the offence or any of the offences: (c) The value of the defendant's property,- (i) Where the application relates to a single offence, before and after the commission of the offence; or (ii) Where the application relates to 2 or more offences, before, during, and after the offence period.(3) In calculating, for the purposes of a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of that person in connection with the commission of the offence or offences shall be disregarded.[15] Section 25(2) provides that from the benefit assessed in accordance with s 27 (and s 28) the following must be deducted:(a) An amount equal to the value of any property that has been forfeited, or is proposed to be forfeited, to the Crown under this Part of this Act as proceeds of the relevant serious offence; and (b) An amount equal to the value of any pecuniary penalty that has already been imposed, in respect of the benefit, under this Act or any other enactment; and (c) Any further amount which the Court considers appropriate to take into account, after having regard to the matter referred to in section 14(1)(b) of this Act.[16] The matter for consideration referred to in s 14(1)(b) of the Act is any sanction imposed "pursuant to the person's conviction, in the nature of a pecuniary penalty or forfeiture of property". [17] Also relevant is s 85 which provides that in any question of fact to be determined by a Judge on an application under the Act is to be determined on the balance of probabilities.What benefits were produced by the group's offending?[18] Leaving to one side for the moment the impact of pecuniary penalty orders made against Mr Rhodes' co-offenders, the starting point in the assessment of an appropriate penalty is $360,000. That amount is calculated by reference to the quantity of manufactured methamphetamine on the basis of supply at a price of $10,000 per ounce. The Solicitor-General seeks an uplift of $100,000 on that again to reflect Mr Rhodes involvement in two specific instances of supply of methamphetamine prior to manufacture, and also his conviction in relation to a representative count of pre-manufacturing supply between 27 June 2006 and 23 November 2006.[19] Mr Rhodes disputes that any uplift is appropriate. He says that the amount of methamphetamine involved in the specific supplies referred to is undetermined and that in any case it is likely to be small. As to the Solicitor-General's proposed uplift of $100,000 Mr Krebs for Mr Rhodes says that it is based on pure speculation. Although the Act contemplates a rough and ready approach to calculating benefits, he says that what is proposed goes beyond rough and ready. If it is necessary to attribute some figure to this period of offending, he proposes the $24,000 located at the Highgate Apartment as the appropriate figure. [20] The first of the two specific counts the Solicitor-General refers to is count 13. Mr Rhodes was convicted of offering to supply methamphetamine to an unknown person. The intercepted conversation relied upon records Mr Rhodes facilitating contact between a Mr Nicholas Clark and an unknown male to enable a supply to occur. [21] The other specific count the Solicitor-General relies upon is count 14. Mr Rhodes was convicted in relation to a supply on or about 11 October 2006 to his co-offender Mr Su. The transcript of intercepted conversations record an exchange between Mr Rhodes and Mr Su where Mr Rhodes agrees to replace an earlier supply which was "dirty". [22] The third conviction the Solicitor-General relies upon to support its argument for an uplift is count 11, the representative count. The Crown's case before the jury in respect of this count was that there were two specific episodes in the representative period which were not reflected in any specific count, but in respect of which the jury could be satisfied that a supply occurred. There was also evidence establishing that in June 2006 when the Highgate Apartment was searched Mr Rhodes was already involved in the manufacture and supply of methamphetamine, and that that conduct continued through to the manufacturing operations in October and November. [23] I do not propose to uplift the figure in respect of the two specific charged incidents of supply to which I have referred (counts 13 and 14). There was insufficient evidence to be clear that a supply in fact occurred; as the Crown put thecase to the jury, it was not clear that the supply took place. As to count 14, it is difficult to attribute any particular value to that supply in terms of the benefit that Mr Rhodes would have derived from it, particularly in light of the dealings between himself and Mr Su over the importation of pseudoephedrine. The representative count is another matter. The evidence is compelling that by the date the Highgate Apartment was searched, Mr Rhodes was already involved in a manufacturing and supply operation. The police searched the lock-up sheds and discovered significant quantities of pre-cursor substances, materials and equipment associated with the manufacture of methamphetamine. At the apartment there was evidence that manufacture had occurred, with residue of manufacture on a dish. There was also the cash found in Mr Rhodes' companion's handbag, which he accepts was his. [24] In the hearing before me Mr Rhodes' counsel argued that the cash was derived from Mr Rhodes's second-hand goods retail operation. That is based upon the evidence that Mr Rhodes gave at trial. Mr Rhodes' evidence at trial was generally implausible. He had many explanations for the presence of items which were incriminating, and for incriminating telephone conversations. It is inherent in his convictions that the jury rejected his explanations and I have no hesitation in doing likewise in respect of this explanation. [25] I also attach some weight to the fact that the interception of conversations did not commence until early October. As soon as they did, the police were able to gather evidence that Mr Rhodes was involved in the supply of methamphetamine. These are the two instances of supply of which he was specifically charged, counts 13 and 14 which pre-dated the instances of manufacture. But there are also the two specific instances which were relied upon by the Crown and not encapsulated within any particular count. [26] It is therefore appropriate that there be some uplift to reflect the benefits that Mr Rhodes would have received from the supply. Just what the basis of an assessment of that uplift should be is far more difficult. I pressed Mr Johnstone for the Solicitor-General to name a figure because I felt it was unfair to Mr Rhodes that there had been no articulation by the Solicitor-General of an appropriate figure. Mr Johnstone concedes that it is difficult to formulate a principled basis on which afigure could be based other than an extrapolation backwards from the level of supply which was established to have occurred in the five to six week period covering the manufacturing. If that was extrapolated backwards through the 14 or so weeks of the representative count, Mr Rhodes could be conservatively estimated to have received benefits in the vicinity of $720,000. Whilst I do not rule that out as a possibility, I consider that such an exercise has the potential to be grossly unfair to Mr Rhodes. It is after all based upon an assumption that the operation maintained a constant level through that period of time, and that I consider would not be a safe assumption to make. [27] Mr Krebs has suggested the $24,000 found in Mr Rhodes' companion's handbag as an appropriate level. However, that $24,000 was found at the very commencement of the representative charge period and I think that also an unlikely and unprincipled basis to found an uplift. Ultimately, the only thing I can do is attempt to arrive at a very conservative analysis of what may have been supplied during that period having regard to the level of pre-manufacture supply that was detected immediately that interceptions commenced, having regard to the amount of cash that was found on Mr Rhodes so early on in the period, and finally having regard to the quantities of pre-cursor materials and equipment that were under his control at that time. I therefore uplift the penalty amount by 10% to represent pre- manufacture supply. Although this figure most likely favours Mr Rhodes, any greater amount might unduly harshly penalise him. That indicates an uplift of $36,000 on the $360,000.What benefits did Mr Rhodes receive?[28] The next issue is as to the benefits Mr Rhodes received personally. It is argued for Mr Rhodes that he was not a sole offender using other offenders to undertake particular tasks. Rather it is claimed that he, Mr Gollop and Mr Kissling were engaged in a criminal joint venture. Because pecuniary penalty orders have been made against his two co-offenders or joint venturers totalling $120,000 approximately that amount should be taken into account by deducting it from the benefits assessed to flow from the joint venturers criminal activities. Mr Krebs forMr Rhodes relies on two Australian judgments: Cornwell v Commissioner of Australian Federal Police [1990] 24 FCR 544 and Director of Public Prosecutions v Nieves and Others [1992] 1 V.R 240.Analysis[29] The starting point must be Mr Rhodes' role in the offending. I am satisfied not only that Mr Rhodes was the leader and instigator of the offending, but also that he was the principal offender. Mr Rhodes was the common actor through all the offending. It was his operation. For example, when Mr Rhodes was dealing with Alex Su, he referred to himself as having sent "two good men" to China, that was Mr Su and Mr Smethurst. It is also clear that others came into and out of the group at his direction and that Mr Gollop, far from being in a joint venture with Mr Rhodes, was not allowed in to the group. The evidence was that Mr Gollop asked Mr Kissling to intercede on his behalf with Mr Rhodes to allow him to join the manufacturing group, but that he was not admitted to the group. It is for this reason that Mr Gollop was not convicted of any of the instances of manufacture. [30] Finally, the evidence also established that Mr Rhodes directed disposition of the methamphetamine and that others in the group assisted him in recovering payment from those further down the chain who owed him for past supply of methamphetamine. [31] I note that in submissions counsel for the Solicitor-General described this operation as a joint venture. But Mr Johnstone for the Solicitor-General was not counsel at trial. During the course of argument I discussed with both counsel my alternative view of the facts. Mr Krebs urged upon me the Solicitor-General's analysis of the facts. He said that although Mr Rhodes was the prime mover or instigator, that did not mean that he was the primary beneficiary of the offending. Ultimately I cannot accept that view. It is contrary to the facts as proved at trial and as I now find them.Relevant principles[32] Mr Krebs referred me to Cornwell v Commissioner of Australian Federal Police. The Australian legislation the Court was considering in that case is very similar to the legislation contained within the Act. In Cornwell the Court drew a distinction between the distribution of gross profits amongst co-offenders, and the payment to co-offenders by the principal for services rendered. It said that only the latter type of payment fell under the description of expenses, and was accordingly required to be disregarded in the calculation of benefits. Distribution of profits amongst co-offenders should be accounted for in calculating the penalty amount. Wilcox J said that approach was consistent with the word benefit being given its ordinary meaning except to the extent that departure from that meaning was required by statute. He gave the following as an illustration as to why any other approach would produce illogical results: (at 555)Say 10 million was shared equally among 10 conspirators, and was at some particular time in the course of the transaction in the possession of each of them separately, a penalty of 10 million would be assessed against each of them; resulting in an aggregate of 100 million. It is said that such an approach is plainly inconsistent with the ordinary meaning of "benefits". I agree.[33] A similar issue also arose in Director of Public Prosecutions v Nieves. In that case three people had been convicted of a drug supply offence. There was no evidence as to any sharing arrangements between the accused as to the proceeds of that supply. The Court described the legislation as penal in nature and said it was not for revenue purposes. It said that because of its penal nature the effect of an order made against two or more persons, jointly and separately who stood convicted of the same offence, would be defeated by recovery of the debt from one only of those convicted. Therefore the purpose of the order was achieved, the Court said, by ordering each convicted person to pay a specific amount, determined by his respective benefit derived from the offence, and by recovering that amount from each. In the absence of evidence, the Court should assume each convicted person was a party to the offence committed in concert and shared equally the benefits derived from the joint offence.[34] The approach of the Australian authorities can be contrasted to that of the House of Lords in R v May [2008] 4 All ER 97. In that case the respondent had been convicted of a conspiracy involving the wrongful withholding and the reclaiming of VAT. There were a number of other conspirators, some before the Court and some not. The issue before the House of Lords was considering was what benefit the respondent had obtained and what amount should be recoverable from him. The Court thoroughly reviewed existing English authorities dealing with the effect of the involvement of co-offenders and orders made against co-offenders in the assessment of penalty orders. One of the cases discussed was R v Porter [1990] 1 WLR 1260. In Porter the defendant and co-defendant had pleaded guilty to drug offences. The benefit received from the offending as a whole was £9,600. The Court of Appeal had said that the Act did not contemplate joint penalties so that the Court must, as between co-defendants, determine their respective shares in any joint benefit they might have received as a result of their drug trafficking. It said that in the absence of evidence the Court was entitled to assume that they were sharing equally. This was the same approach as had been taken in R v Nieves. But the House of Lords differed as to the appropriate analysis. It said that if on the facts the proceeds had been received jointly each offender had received a payment or other reward in the full sum of £9,600, and that should have been the quantum of the penalty. [35] More generally the House of Lords said that the legislation with which it was dealing is intended to deprive defendants of the benefits that they have gained from relevant conduct whether or not they have retained such benefit, within the limits of their available means. That purpose, of course, is on all fours with the purpose of the New Zealand legislation (R v Pedersen [1995] 2 NZLR 386). Secondly, the Court said that in determining whether the respondent had obtained property or a pecuniary advantage the Court should apply ordinary common law principles to the facts as found. Under ordinary common law principles the respondent obtains property if in law he owns it, whether alone or jointly. This discussion occurred in the context of the United Kingdom Proceeds of Crime Act 2002. In that Act the focus is upon whether the offender has benefited from his criminal conduct. That Act provides that a person benefits from conduct if he obtains property as a result of or in connection with the conduct.[36] On application of the Australian line of authorities, if the criminal enterprise were indeed a joint venture, I should simply make orders against each of the joint venturers of a proportion of the share of the proceeds. But on the application of the principles articulated in R v May, the full amount should be the penalty without deduction.Application of principles to this case[37] On the factual findings I have made, whether the Australian or the English approach is taken, Mr Rhodes is not entitled to any deduction (at least prior to the discretion stage) to reflect the fact that there were co-offenders, or that those co- offenders have had pecuniary penalty orders made against them. [38] On the facts as I have found them, Mr Rhodes was the principal offender who used others to assist him with the offending. To allow him to a deduct the expenses incurred by Mr Rhodes in obtaining their assistance in relation to his offending would be inconsistent with s 27 of the Act. In terms of s 27(1) the money came into his possession or under his control. Any payments to his co-offenders are expenses or outgoings, the deduction of which is prohibited by s 27(3). [39] Whatever the arrangements Mr Rhodes had with his co-offenders regarding payment this Court cannot and should not inquire into them. I am also of the view that would be an impossible task for the Court. [40] If I am wrong and the offenders were indeed joint venturers, Mr Rhodes did in any case receive the benefit of the full proceeds of sale by reason of his joint ownership of those proceeds. As the House of Lords observed in R v May that is an application of ordinary common law principles in relation to ownership. Any arrangements between the co-offenders as to how they would ultimately share the profits from the joint venture is irrelevant to the assessment of the benefits received. I observe that it would be invidious if the Court were required to undertake an inquiry into profit sharing arrangements of offenders as if they were engaged in a legitimate commercial enterprise, and the solution of equal sharing, suggested inNieves seems no less arbitrary than the application of the plain meaning of s 27 of the Act. [41] I note the comments made by the Federal Court in Cornwell as to the potential consequences of the approach that I have outlined. But I do not consider that the possibility of over-recovery is a reason to reduce the amount of the penalty order. As has been noted on numerous occasions, the Act is a penal statute. The scheme of the legislation is such that the penalty imposed will often exceed any profit retained by the respondent. That that is so is made clear by the prohibition of a deduction of any expenses or outgoings, and the inclusion in the calculation of benefit of any property or money that comes into the control of the defendant, whether or not the defendant is entitled to a share of that property or money. [42] I also observe the orders made in respect of Mr Gollop relate in large part to separate offending for which he was convicted, and in which Mr Rhodes was not involved. The risk of an over-recovery by the Solicitor-General of the total of the benefits received by all the offenders from the offending is therefore in reality slight. [43] In reliance on Cornwell Mr Krebs argued for a deduction of penalties already imposed rather than an equal sharing. It cannot be that because pecuniary penalty orders have been made against co-offenders a reduction of the penalty amount is appropriate. Applying that approach suggests that this is a revenue statute concerned with recovering ill-gotten gains as opposed to a penal statute. Further, the application of such a principle could result in arbitrary and undesirable results. For example, the last offender in a chain would receive the benefit of earlier pecuniary penalty awards, whereas the same might not and indeed could not be available to those earlier in the chain. As was said by Hardie Boys J in Pedersen "it will be important to bear in mind that this is a penal statute, with drastic consequences". (at 392) [44] I note the provisions of s 25(2)(a) to (c), but those only apply to require a deduction where a penalty order or forfeiture order is made in respect of the offender, rather than in respect of orders made against co-offenders. Mr Krebs did not seek to reply upon those provisions.Should I exercise my discretion to reduce the pecuniary penalty order to take into account other pecuniary penalty orders already made in respect of co- offenders?[45] On its own this is not a basis for deduction of the amount. Although the discretion stage is where the nature of the role of the offender in the particular offending is best taken into account, Mr Rhodes was the principal offender. [46] In reaching this view I stress that this determination is a preliminary point. The issue of the discretion remains at large in relation to all other matters because, of course, other matters may well bear upon the exercise of the discretion. [47] The answers to the preliminary questions are therefore: (a) What benefits were produced by the offending? $396,000. (b) What benefits did Mr Rhodes personally receive? $396,000. (c) Should any pecuniary penalty order be reduced to take into account pecuniary penalty orders already made in respect of Mr Rhodes' co- offenders? No. Winkelmann J