Dieni v The King
[2024] VSCA 76
•30 April 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0072 |
| ANTHONY DIENI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, KAYE and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 April 2024 |
| DATE OF JUDGMENT: | 30 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 76 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1377 (Judge Riddell) |
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CRIMINAL LAW – Conviction – Application for extension of time within which to seek leave to appeal against conviction – Applicant pleaded guilty to 11 charges – Crown conceded that no basis upon which applicant could be convicted on one of the charges – Orders made setting aside conviction and sentence on one of 11 charges – No change to total effective sentence or non-parole period – Applicant’s complaints with respect to convictions on remaining 10 charges totally without merit – Application for extension of time within which to appeal against remaining 10 convictions refused.
CONFISCATION – Pecuniary penalty order – Application for extension of time within which to seek leave to appeal against pecuniary penalty order – Pecuniary penalty order previously relied upon as fresh evidence which re-opened sentencing discretion – Applicant’s sentence previously reduced on appeal because of pecuniary penalty order being accepted as fresh evidence re-opening sentencing discretion – No explanation for delay – Applicant not now permitted to resile from earlier inconsistent position – Application totally without merit – Application for extension of time refused.
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| Counsel | ||
| Applicant: | Mr TF Danos | |
| Respondent: | Ms E Ruddle KC | |
| Solicitors | ||
| Applicant: | Victorian Bar Pro Bono Scheme | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
BEACH JA
KAYE JA
T FORREST JA:
On 18 December 2019, the applicant pleaded guilty to six charges of attempting to pervert the course of justice (charges 1 to 3 and 6 to 8), two charges of trafficking in a drug of dependence (charges 4 and 5), one charge of false accounting (charge 9), one charge of possessing a general category longarm (charge 10) and one charge of possessing an unregistered general category handgun (charge 11).
On 4 September 2020, following a plea hearing conducted on 23 June 2020 and 3 and 13 August 2020, the applicant was sentenced to a total effective sentence of 14 years, with a non-parole period of 9 years.[1] It is not necessary to set out all of the sentences and orders for cumulation that made up this total effective sentence. For present purposes, it is sufficient to note that the base sentence was imposed on charge 2; the sentence on charge 9 was 4 years, of which 22 months was ordered to be served cumulatively; and the sentence on charge 10 was 1 month, with no order as to cumulation.
[1]DPP v Dieni [2020] VCC 1377 (‘Primary Reasons’).
On 2 March 2021, some six months after the applicant was sentenced, the sentencing judge (with the applicant’s consent) made a pecuniary penalty order (‘PPO’) in the sum of $448,805.76, pursuant to s 60 of the Confiscation Act 1997.[2] The PPO was made in relation to charge 9 and made the applicant liable to pay that sum to the State.
[2]The application for the PPO was made by the DPP against the applicant under s 58 of the Confiscation Act 1997 and consented to by the applicant pursuant to s 60 of that Act.
On 24 February 2022, this Court allowed the applicant’s appeal against sentence and re-sentenced him to a total effective sentence of 9 years, with a non-parole period of 5 years.[3] In doing so, this Court accepted concessions made by the respondent that:
•the total effective sentence and non-parole period imposed by the sentencing judge were manifestly excessive;[4] and
•the making of the PPO in the sum of $448,000 was fresh evidence which this Court could take into account in re-sentencing the applicant.[5]
[3]Dieni v The Queen [2022] VSCA 16 (Beach, Kaye and T Forrest JJA) (‘Sentence Appeal Reasons’).
[4]Sentence Appeal Reasons, [139].
[5]Ibid [140].
Ultimately, we were persuaded that, in addition to setting aside the sentences on the six attempting to pervert the course of justice charges, the sentence on charge 9 had to be set aside. Relevantly for present purposes, in re-sentencing the applicant, the sentence on charge 2 remained the base sentence; the sentence on charge 9 was reduced to 1 year, with 8 months to be served cumulatively; and the sentence on charge 10 was not disturbed.
On 1 May 2023 (more than three years after he pleaded guilty, more than two years after he was sentenced, and more than a year after his appeal against sentence was finalised), the applicant filed a notice of application for leave to appeal against conviction (‘the conviction application’). The conviction application was completed by the applicant in person. It did not identify the conviction in relation to which the applicant sought leave to appeal and it did not contain any proposed grounds of appeal.
At the same time as he filed the conviction application, the applicant filed a handwritten written case (‘the conviction written case’). The substance of the conviction written case was set out under two headings: ‘Summary of relevant facts’ and ‘Grounds of appeal’.
Under the heading ‘Summary of relevant facts’, the applicant made a number of tendentious assertions, including that:
•the applicant only had a two minute appointment with senior counsel who conducted his plea (the conference being terminated because the applicant’s wife had become ill and an ambulance had to be called); and
•the plea ultimately conducted was ‘the worst plea I had ever heard’, resulting in the applicant being ‘slammed with a term of gaol equal to manslaughter’.
Under the heading ‘Grounds of appeal’, and next to the words ‘Ground 1:’, the conviction written case provided:
I was forced to plead guilty, as my health became worse I just wanted to go home, I attemted [sic] to change my plea when it became clear that all the charges would see me go to jail. Aside to jail Her Honour in the County Court placed a P.P. order for $480,000 and my home has been sold by the D.P.P.
Please note
1 My legal team should have seen that all the charges were ‘loaded on’
2 Why? Was all that money been orderd [sic] for me to pay.
There was proof that I made 1 payment monthly for 40 years on the home I built. I refinanced 3 times in order to keep the home.
I borrowed $70,000 in 1980 and I owed $73,000 in 2017. It was only in the last 10 years that I was making progress with my loan.
Applicant’s additional documents and the evolution of the applicant’s case
At the same time as he filed the conviction application and the conviction written case, the applicant filed two other documents:
•a document headed ‘What I believed the charges to be’ (‘the “what I believed” document’); and
•an affidavit sworn by the applicant on 21 April 2023 (‘the applicant’s first affidavit’).
In the “what I believed” document, the applicant made five admissions,[6] before stating:
I dont (sic) believe the above equals the sentence I recieved (sic).
[6]He admitted purchasing six grams of cocaine; swapping a urine sample; possessing an unregistered firearm; possessing an unlicensed firearm; and ‘on a handful of times’ giving a person some medication to assist with pain.
In the applicant’s first affidavit, the applicant said that:
•initially he was never told what charges he was facing, and he put his trust in his lawyer;
•later, he began to believe that the informant ‘would have loaded [him] up with charges, but [he] was not concerned as [he] knew what [he] had done and there was no evidence at all except something [he] may have said on the phone’; and
•as he was leaving the office of senior counsel who conducted the plea (having only been there for three minutes), senior counsel said to him:
No need to come back. Let me put in a guilty plea for you and you will be ok.
to which the applicant replied, ‘Ok’ – a mistake he says he made ‘under pressure and a lot of medication’.
On 15 June 2023, the applicant filed an affidavit sworn by him on 2 June 2023 (‘the applicant’s second affidavit’). In the applicant’s second affidavit, he asserted that:
When I entered a guilty plea I believed it wa[s] for a small amount of cocaine which I had obtained from a client, not Mr Jake Grey, the informant used this person Grey in exchange for assisting him in his court matter on 17-12-17. It was manipulation to get a conviction.
In the applicant’s second affidavit, the applicant also made allegations that his solicitor and senior counsel were ‘incompetent in their duties’. He also asserted that he was ‘licenced to hold a longarm license [sic]’. Then, after asserting what he would have said if he had had a proper conference with his senior counsel, the applicant concluded the affidavit with the following rhetorical question:
Would I have pleaded guilty had I been aware of the charges?
On 1 November 2023, the applicant swore a short affidavit in which he deposed that a letter attached to the affidavit (‘the letter’) was true and correct. The letter is addressed to the Court of Appeal and is headed ‘Appeal re pecuniary order’. In the letter, the applicant asserted that:
•the PPO ‘is unjust and was made in error’;
•the applicant was not the accountant for St Paul’s; and
•‘All matters were manipulated against me, and how do they come up with $488,000?’.
Crown’s response to the conviction written case
In its response to the conviction written case, the Crown noted that the applicant applied for an extension of time to file a notice of application for leave to appeal on 1 November 2022, 788 days after sentence. That said, the Crown conceded that leave should be granted and the appeal allowed, for the limited purpose of quashing the applicant’s conviction on charge 10 and entering a judgment of acquittal on that charge. The Crown accepts that the applicant was in fact the holder of a firearms licence at the time the firearm the subject of charge 10 was located in his home. Specifically, the Crown has now confirmed that on 12 September 2017, the applicant was the holder of a Category A and B Longarm Licence No 422:100:50B.[7]
[7]It appears that this licence was suspended on 13 September 2017, the day after the longarm was found at the applicant’s home.
The Crown accepts that, as a result of the applicant possessing a longarm licence at the relevant time, he could not at law have been convicted of charge 10, despite his plea of guilty. The Crown thus concedes that:
[F]or this reason, leave to appeal should be granted, the appeal against conviction should be allowed, the conviction on charge 10 quashed and a judgment of acquittal on this charge should be entered into the record.
In relation to the applicant’s remaining allegations, the Crown’s position is that they are so lacking in merit that they should be rejected by this Court and no relief should be granted to the applicant in respect of them. The Crown notes that, in his material, the applicant has admitted to criminal conduct; and that each of his convictions (other than the conviction on charge 10) is supported by evidence. Moreover, the applicant was aware he was pleading guilty to serious charges; there is no suggestion that the plea was induced by fraud or impropriety; and there is no suggestion the plea was offered without consciousness of guilt. The Crown submits that, accordingly, the applicant’s convictions on all charges (other than charge 10) should stand.
The refining of the applicant’s case
Following the filing of the Crown’s response to the conviction written case, Mr Danos of counsel accepted a referral to act for the applicant pro bono. On 2 February 2024, on behalf of the applicant, Mr Danos submitted two documents to the Court: a document headed, ‘Grounds of appeal’ (‘the grounds of appeal document’); and a document headed, ‘Addendum to written case of applicant’ (‘the addendum document’).
The grounds of appeal document contains two grounds of appeal as follows:
1.The conviction on charge 10 on indictment CR 18-01295 to which the Applicant pleaded guilty on 2/6/2020 be overturned and a verdict of Not Guilty be entered.
2.The Pecuniary Penalty imposed on the Applicant on 2/3/2021 and to which the Applicant consented, be set aside and a hearing granted to determine the appropriate amount of Pecuniary Penalty, if at all.
The addendum document contends that this Court ‘should extend time to allow a proper hearing of the pecuniary penalty imposed’. The essential steps of the argument are:
(1)The Crown has conceded that the conviction on charge 10 must be set aside. To enable that to happen, the Court needs to grant an extension of time in which to lodge a notice of appeal. In those circumstances, the Court should extend time to allow a proper hearing of the PPO.
(2)On the first day of the plea hearing, the prosecutor applied for the PPO, but acknowledged that that application was ‘contested’.
(3)During the course of the plea hearing, it was conceded by the Crown that the charge of false accounting did not amount to theft: the benefit derived by the applicant was the undocumented receipt and use of the $448,000 without it having been declared. The prosecutor did not assert that the applicant was ‘not entitled in some way to those funds’. If that had been the case, the charge would have been theft or obtaining a financial advantage by deception.
(4)In those circumstances (notwithstanding the applicant’s consent to the PPO having been given while he was a prisoner)[8] there is a real question to be determined whether it was open to the Crown to succeed in an application for a pecuniary penalty.
[8]Reference is also made to an assertion by the applicant that he received a phone call advising him of the application when he was a prisoner and that ‘the sum ordered would not be a large amount’.
The conviction on charge 10: consideration and conclusion
Having reviewed the material for ourselves, it is plain that the applicant’s conviction on charge 10 cannot stand. Accordingly, we accept the concessions made by the Crown and will make orders granting the applicant an extension of time in which to seek leave to appeal against his conviction on charge 10; granting leave to appeal against the conviction on charge 10; allowing that appeal; setting aside the conviction and sentence on charge 10; and ordering an acquittal on that charge.
The PPO: background, consideration and conclusion
Background: the plea hearing
In order to describe the background of the making of the PPO order, it is necessary to say a little more about the plea hearing. As we have already said, the plea hearing was conducted over three days.
Contrary to the applicant’s affidavits and material, a reading of the plea transcript reveals that the plea made on the applicant’s behalf was of a very high standard. Moreover, the plea made on the applicant’s behalf was plainly the product of a significant amount of work by those who acted for him, including his counsel.
During the course of the plea, the applicant’s senior counsel demonstrated a detailed understanding of the case against the applicant and his possible defences, as well as the applicant’s complex personal circumstances. Indeed, senior counsel told the judge that he and his junior had initially prepared the case in the second half of 2019 in order to run a trial in January 2020. So much was apparent from the content of the plea and senior counsel’s interactions with the sentencing judge during the course of the plea.
More specifically, the plea made on behalf of the applicant by his counsel demonstrated, amongst other things, that his counsel had given considerable thought to the applicant’s medical issues, including matters of a neuropsychological nature as disclosed in reports prepared by Dr Linda Borg. Indeed, on the second day of the plea, the applicant’s counsel called Dr Borg, who gave detailed evidence on the plea.
The applicant was present in Court throughout the first day of the plea,[9] which occupied 110 pages of transcript. The hearing commenced with the prosecutor reading the agreed summary of prosecution opening. Specifically for present purposes, the circumstances of charge 9 were explained in detail by the prosecutor over almost four pages of the plea hearing transcript. In the course of doing so, the prosecutor explained how the sum of $448,805.76 had been determined, saying, amongst other things:
The sum of just over $448,000 is the sum that was in fact additional to the 370,000 received, put towards mortgage, phone, all the things that are set out there, but not accepted as being declared as legitimate … expenses … Your Honour.
And so he received – the benefit derived was the undocumented receipt and the use of that money. He was able to use the $448,000 in the ways described without it having been declared.
[9]He appeared via a video link on the second and third days of the plea hearing.
The prosecutor then completed her opening submissions by saying:
And I make application for a pecuniary penalty order in relation to charge 9, being the amount that … the benefit derived was the offender’s undocumented receipt and use of $448,805.76.
That application, if it doesn’t proceed today, I understand it’s contested, is made today.
Following the making of that application, the judge had a detailed discussion with the prosecutor about the PPO application (still in the physical presence of the applicant). At the conclusion of that discussion, senior counsel for the applicant then discussed with the judge the way in which charge 9 was put by the Crown. Again, this discussion was detailed and carried out in the presence of the applicant.
The plea was conducted on the basis that a PPO would be made at some point down the track, with the amount to be determined at a later date. As a result of the amount in which the PPO would be made being unknown at the time of plea and sentence, senior counsel submitted to the judge that the PPO could only be dealt with ‘in a general way’, albeit that the making of the PPO would imperil the applicant’s matrimonial home and was a matter to be taken into account in mitigation. So, when referring to the PPO, the applicant’s senior counsel said:
What they’re [the applicant and his wife] dealing with is the home of their entire married life being, to use a colloquialism, in play with regard to the PPO. And so one can hardly overstate the mental and (indistinct) burden that that brings onto our client, sitting in his cell with the conditions that he does have, knowing the conditions that his wife has, in her circumstances, which we’ve set out … It’s too early to say how those PPOs and restraining order will play out. But one can hardly overstate for elderly people what all that amounts to in terms of mental anguish.
On 2 March 2021, the application for the PPO came back on for hearing before the sentencing judge. The applicant appeared remotely from his place in custody. The judge was told, while the applicant was present on the screen (as he was throughout this hearing), that the matter had resolved and that the parties sought a consent order in the terms of the PPO.[10] The judge then made the PPO by consent.
Background: the sentence appeal
[10]See [3] above.
Before proceeding further, it is necessary to say something about the sentence appeal and the use the applicant made of the PPO in his submissions to this Court during that appeal.
In short, at all times during the course of the sentence appeal, the applicant accepted that the PPO was properly made in relation to amounts he paid to himself or for his benefit, and which resulted in him understating his salary entitlements by $448,805.76. The applicant noted, however, that the Crown ‘specifically eschewed any claim that the applicant had stolen the money’. As the applicant put it in his submissions on the sentence appeal:
Indeed, the Crown could not establish, for the purpose of sentencing, that the applicant was not entitled to all of the amount the subject of the order – the vice of the offence was the lack of documentation with intent to gain.
It was submitted by the applicant on the sentence appeal that it followed from the way charge 9 was put by the Crown that, in considering the sentence appeal and/or in resentencing the applicant, ‘regard should be had [by this Court] to the entire amount of the pecuniary penalty order as constituting additional punishment of the applicant’. The applicant’s submission on the sentence appeal concluded:
The fact of the order should be treated as a very significant additional punitive consequence for the applicant. The applicant should be resentenced having regard to this additional punishing consequence.
These submissions were accepted by this Court when it granted the applicant leave to appeal against his sentence, allowed his appeal and resentenced him to a substantially lesser sentence than that imposed by the sentencing judge.[11]
The PPO: consideration and conclusion
[11]Sentence Appeal Reasons, [140].
The applicant contended that, given the Crown’s concessions on charge 10, this Court would grant his application for an extension of time to appeal against conviction so that the conviction on charge 10 can be quashed. Having done so, it was submitted that this Court should extend time to allow a proper hearing in relation to the PPO — presumably as part of the appeal against conviction for which, as the applicant observed, an extension of time must be granted if the conviction on charge 10 is to be set aside.
The difficulty with this argument is that an appeal against the PPO does not form any part of an appeal against conviction. An appeal against a PPO is governed by s 142(3) of the Confiscation Act 1997, which relevantly provides:
(3)Without affecting any other right of appeal, a person against whom a pecuniary penalty order is made may appeal against that order in the same manner as if it were, or were part of, the sentence imposed in respect of the offence in relation to which the order was made.
As was observed by this Court in Zakhour v The Queen,[12] there are no specific provisions in the Confiscation Act which provide the procedural machinery for an appeal against a PPO. But, by providing that a PPO may be appealed ‘in the same manner’ as if the PPO were the sentence or part of the sentence, s 142(3) brings into play the provisions of the Criminal Procedure Act 2009 that stipulate the manner by which a sentence may be appealed and the powers of the Court upon such an appeal.[13]
[12][2022] VSCA 63 (McLeish and Macaulay JJA) (‘Zakhour’).
[13]Ibid [45]. See also [47]–[48], [60]–[82].
As with most applications for an extension of time within which to commence a proceeding, an application for an extension of time to appeal against a PPO requires consideration of all of the relevant circumstances, paying specific attention to the merits of the proposed appeal, the reasons for the applicant’s delay and the issue of prejudice.
At the hearing of his application for leave to appeal against sentence and his appeal against sentence, the applicant was represented by very experienced counsel and solicitors, different from those who represented him on his plea. The first point to be made is that there is no reasonable explanation for the applicant’s failure to seek leave to appeal against the PPO at the time he might most obviously have sought such leave — being the time when his application for leave to appeal against sentence was heard.
That said, the application for leave to appeal against the PPO has a more fundamental problem. There was no issue on the plea, or in this Court on the sentence appeal, that the making of the PPO was a matter which was relevant in the sentencing synthesis. While s 5(2A) of the Sentencing Act 1991 provides that there are certain circumstances where a sentencing court must not have regard to a PPO,[14] it was common ground on the plea and in the sentence appeal that the sentencing judge and this Court could have regard to the PPO in this case.[15] Indeed, the applicant positively embraced the relevance of the PPO, submitting that it was a ‘very significant additional punitive consequence’ which the Court was required to take into account when resentencing the applicant.
[14]See s 5(2A)(d) of the Sentencing Act.
[15]See s 5(2A)(c). See also Zakhour [2022] VSCA 63, [78]. See further, s 5(2B) of the Sentencing Act and s 67 of the Confiscation Act 1997.
More importantly, the applicant was in fact resentenced by this Court on the basis that he had been additionally punished by the making of the PPO. In so doing, this Court accepted the applicant’s submission that that course was appropriate in all the circumstances. Having gained the benefit of that submission, he should not now be permitted to resile from it. Permitting the applicant to contest the appropriateness of the PPO now would (if the applicant were to be successful) result in the applicant having been resentenced by this Court on a false basis.
In any event, we are not persuaded that there was any arguable error in the judge making the PPO by consent.
Section 59 of the Confiscation Act permitted the County Court to make the PPO in the amount of ‘the benefits derived by the accused in relation to the offence’. Having regard to the terms of s 67 of the Confiscation Act and the inclusive definition therein of the expression ‘value of the benefits derived by an accused in relation to an offence’, we are not persuaded that there was any error in the calculation of the quantum of the PPO in this case. In the terms of s 67, the $448,000 was ‘money actually received as a result of the commission of [charge 9], regardless of expenditures incurred in deriving that money’. There is no issue but that the applicant actually received the $448,000 as a result of his admittedly fraudulent accounting. It is not to the point that he might also have had a legitimate entitlement to be paid an equivalent sum if he had properly declared and documented such payments.
Moreover, as we have already demonstrated, the applicant’s assertions as to the circumstances in which the PPO was made are not borne out by the transcript of the plea hearing or the transcript of the hearing at which the order was made. It is plain that the basis for the PPO and its terms were explained to the applicant in some detail during the course of the plea hearing. We do not accept that these matters were not also the subject of appropriate explanation by the applicant’s plea counsel.
For these reasons, the application for an extension of time within which to seek leave to appeal against the PPO must be refused.
The applicant’s other contentions
For completeness, we should say that we reject the assertions made by the applicant in his affidavits and other written material that suggest he only had a two minute or three minute conversation with senior counsel prior to the plea hearing, or that the charges were not explained to him by his former counsel and solicitors. As we have said above, it is apparent from the plea transcript that the applicant’s former lawyers must have done a considerable amount of work in conferring with the applicant and in the preparation of his plea so that they were able to make a plea of such high quality over the three day plea hearing. The applicant’s assertions to the contrary must be rejected.
Conclusion
While we will make the orders referred to in [22] above, which will result in the conviction and sentence on charge 10 being set aside, the balance of the applicant’s application will be dismissed. As the sentence previously imposed on charge 10 was ordered to be served concurrently with the sentences on the other charges, these orders will result in no change to the applicant’s total effective sentence and non-parole period imposed by this Court on 24 February 2022.
Finally, we wish to acknowledge the great assistance provided to the Court, and to the applicant, by counsel who appeared pro bono on his behalf. Mr Danos addressed, clearly and cogently, all of the arguments which could properly be advanced. In doing so, he upheld the highest standards of the Bar.
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