Section 205D(3)(c)(ii) of the Customs Act 1901 (Cth) does not confer a broad discretion on the court when considering condemnation of seized goods. The phrase 'in all the circumstances of the case' is narrow, directed to whether the seized goods are in fact forfeited goods, not to a broad assessment of fairness or proportionality. Penalties imposed for the offence, the offender's intentions regarding the goods, the absence of duty on particular items, the effect of forfeiture on employment, and the disparity between duty and value are all irrelevant to the condemnation inquiry. The relationship between penalty and forfeiture is not reciprocal: while penalty may be fixed having regard to forfeiture, forfeiture is not moderated by penalty.
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