Director of Public Prosecutions (Cth) v Roper
[2015] VCC 1969
•17 September 2015 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
CONFISCATION LIST
Case No. CI-14-05382
IN THE MATTER OF THE CRIMES (SUPERANNUATION BENEFITS) ACT 1989 (COMMONWEALTH)
IN THE MATTER OF A PERSON CONVICTED, PHILIP JAMES ROPER
BETWEEN
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| PHILIP JAMES ROPER | Respondent |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2015 | |
DATE OF JUDGMENT: | 17 September 2015 (revised) | |
CASE MAY BE CITED AS: | DPP (Cth) v Roper | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1969 | |
REASONS FOR JUDGMENT
---
Subject: CONFISCATION – SUPERANNUATION ORDER
Catchwords: Defendant convicted of corruption offences whilst a Commonwealth employee – sentenced to more than 12 months’ imprisonment – where offences committed during only one of two separate periods of Commonwealth employment – whether Superannuation Order should apply to benefits relating to both periods of employment – where there were delays in bringing application for Superannuation Order
Legislation Cited: Crimes (Superannuation Benefits) Act 1989 (Cth); Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)
Cases Cited:DPP v Roper [2012] VCC 475; DPP (Cth) v Della-Vedova (2010) 75 NSWLR 602
Judgment: Superannuation Order made.
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr D Lane | Commonwealth Office of Public Prosecutions |
| For the Respondent | The respondent appeared in person | - |
HIS HONOUR:
1 This is an application by the Commonwealth Director of Public Prosecutions for a Superannuation Order pursuant to s17 and s19 of the Crimes (Superannuation Benefits) Act 1989 (Cth). I shall refer to that Act in these reasons as the “CSB Act”.
2 The background to this application can be conveniently summarised by the following list of facts which were not in dispute:
(a) Between 1982 and 1991, Philip James Roper was a Commonwealth employee, employed by the Australian Federal Police (“AFP”).
(b) From mid-2000 to March 2004, Mr Roper was a Commonwealth employee, employed by the Australian Taxation Office (“ATO”).
(c) In between those two periods, he was not a Commonwealth employee.
(d) Mr Roper was, during both periods of his employment with the Commonwealth, and is at the present time, a member of the Public Sector Superannuation Scheme (“the PSS scheme”), a superannuation scheme under which employer contributions or benefits are paid or payable, or have been paid, by the Commonwealth or a Commonwealth authority to or in respect of Mr Roper.
(e) During both periods of his employment with the Commonwealth, superannuation contributions were made by the Commonwealth for his benefit. In addition, he made his own contributions for at least part of each of those periods of employment.
(f) During the course of his employment with the Australian Federal Police, it is not alleged that Mr Roper committed any offences.
(g) During the course of his employment with the Australian Taxation Office, Mr Roper committed five offences. In relation to three of those offences, he pleaded not guilty, but at trial was found guilty of those offences by a jury. In relation to the other two offences, he pleaded guilty. The five offences were:
(i) That Mr Roper, between 1 July 2001 and 1 July 2002 at Melbourne, he, as a Commonwealth public official, did dishonestly ask Jian Peng Wang for a benefit for himself, namely information, with the intention that the exercise of his duties as a Commonwealth public official would be influenced, contrary to s141.1(3) of the Criminal Code.
(ii) That between 1 October 2002 and 25 December 2002 at Melbourne, Mr Roper, being a Commonwealth public official, did dishonestly receive from Jian Peng Wang a benefit for himself, namely information relating to 8 Belfort Street, Dandenong, with the intention that the exercise of his duties as a Commonwealth public official would be influenced, contrary to s141.1(3) of the Criminal Code.
(iii) That on or about 7 January 2003 at Dandenong, Mr Roper did dishonestly appropriate property belonging to an unknown person, with the intention of permanently depriving that unknown person of the property and property also belonging to the Commonwealth, being five bales of tobacco located at 8 Belfort Street, Dandenong, contrary to s131.1(1) of the Criminal Code, in that he did aid, abet, counsel and procure the commission of that offence by Sam Solomon.
(iv) That on or about 17 October 2003 at Melbourne, Mr Roper, being a Commonwealth public official, did dishonestly receive from Xian Feng Cai a benefit for himself, namely overseas travel, with the intention that the exercise of his duties as a Commonwealth public official would be influenced, contrary to s141.1(3) of the Criminal Code.
(v) That on or about 26 February 2004 at Melbourne, Mr Roper, being a Commonwealth public official, did use information that he had obtained in his capacity as a Commonwealth public official with the intention of dishonestly obtaining a benefit for Chun Hua Zhang contrary to s142.2(1) of the Criminal Code.
(h) Each of the five offences referred to above were “corruption offences” as that term is defined in s2 of the CSB Act.[1]
[1]Mr Roper admitted in oral submissions that each of the convictions were corruption offences. He did not admit that he had acted so as to pervert the course of justice which is a reference to Part (c) of the definition of “corruption offence”. He nevertheless conceded that the offences were caught under the other parts of the definition.
(i) Mr Roper was sentenced in relation to each of the offences by Judge Gullaci of this Court on 19 March 2012.[2] His Honour sentenced Mr Roper to a term of imprisonment for each of the offences, the periods varying between six months and fourteen months. The total effective sentence imposed was twenty-nine months’ imprisonment. His Honour ordered that Mr Roper be released after serving fourteen months of that sentence upon entering into a Recognisance Release Order.
[2]DPP v Roper [2012] VCC 475
The Court before which Mr Roper was convicted of each of the five relevant corruption offences was the Victorian County Court. It follows that this Court is the appropriate Court in which to bring this application.[3]
(k) On 30 June 2014, the Minister for Justice provided a written authorisation pursuant to s16 of the CSB Act authorising the DPP to apply to the appropriate court for a Superannuation Order in respect of Mr Roper.[4]
[3]See the definition of “Appropriate court” in s2 of the CSB Act.
[4]The authorisation is exhibit CDD-3 to the affidavit of Carolyn Dawn Davy sworn on 31 October 2014.
3 Section 16 of the CSB Act provides:
“Where:
(a) a person who is or was (whether before, on or after the commencing day)[5] an employee is convicted of an offence; and
(b) the Minister is of the opinion that the offence is a corruption offence;[6]
the Minister may, by notice in writing, authorise the DPP to apply to the appropriate court[7] for a superannuation order in respect of the person.”
[5]The commencing day was 21 December 1989.
[6]The term “corruption offence” is defined in s7 of the Act.
[7]“appropriate court” is defined in s2 of the CSB Act as including the court of a State before which the person was convicted.
4 Section 17 of the CSB Act provides that if the DPP is authorised to apply for a Superannuation Order in respect of a person and the person is sentenced to imprisonment (in respect of two or more offences for a single term longer than twelve months or to cumulative terms that together add up to longer than twelve months, in respect of all or any of them), the DPP must make that application to the appropriate court.
5 In support of the application, the DPP tendered a number of documents. These were:
· Exhibit A - An affidavit of Carolyn Dawn Davy sworn on 31 October 2014 and each of the exhibits thereto;
· Exhibit B - An affidavit of Christopher Stojan Dulgerov sworn on 17 August 2015 and the exhibit thereto;
· Exhibit C – A certificate issued pursuant to s18(3) and (4) of the CSB Act dated 17 August 2015; and
· Exhibit D – the Authority of the Minister of Justice pursuant to s16 of the CSB Act and dated 30 June 2014.
6 A Superannuation Order made under s19 of the CSB Act, has the consequences set out in s21(1) of the Act. In effect, the person’s membership of the PSS Scheme would be terminated, and his rights and benefits arising from that membership cease. Those rights of, and benefits payable to or in respect of, Mr Roper or his dependents (being rights or benefits arising out of his membership of the PSS scheme) cease, or cease to be payable, on the day on which the Superannuation Order takes effect and he would cease to be a member of the PSS Scheme on that day. The Commonwealth or any Commonwealth authority is not liable to pay any employer contribution or benefit under the scheme in respect of Mr Roper on or after that day.
7 The principal, but not sole, issue in the proceeding concerned whether a Superannuation Order made in respect of Mr Roper would relate to superannuation entitlements arising from both periods of Mr Roper’s Commonwealth employment or merely the second period during which he committed the 5 corruption offences.
8 The DPP’s case is that such a Superannuation Order will apply, where a person had separate periods of employment with the Commonwealth or a Commonwealth authority, in respect of all employer contributions made or benefits paid during both of the periods of Commonwealth employment, not merely the period with the ATO during which the corruption offences were committed.
Mr Roper’s submissions
9 Mr Roper presented both written and oral submissions.
10 He submitted that such an Order would only apply in respect of superannuation contributions or entitlements relating to the period of employment during which the offences were committed. He relied on the Judgment of the New South Wales Supreme Court in DPP (Cth) v Della-Vedova.[8] There, Harrison J held that recovery was limited to benefits paid or contributions made by the Commonwealth to a specific superannuation scheme during the period of employment when the corruption offences were committed.[9]
[8](2010) 75 NSWLR 62 at 613 – 614
[9]Della-Vedova (supra) at paragraphs 33, 34, 39, and 40
11 However, I accept that amendments made by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (“the amending Act”) legislatively overturned the effect of that decision.
12 The amending Act amended s19(3)(a) and (4)(a) of the CSB Act so as to make it clear that a Superannuation Order will apply in respect of a person under any superannuation scheme for any period of employment “not just a period during which the offence was committed”.[10]
[10]Clauses 12 and 13 of Part 3, Schedule 3 of the amending Act
13 The amending Act applies in relation to a Superannuation Order applied for on or after the commencement of the amendment Act, whether an offence to which the order relates was committed before, on or after that amendment.
14 The relevant parts of the amending Act commenced operation on 29 November 2012.[11]
[11]Section 2 of the amending Act
15 I accept that s19 of the CSB Act, as amended, applies in relation to a Superannuation Order applied for on or after 29 November 2012, regardless of when the relevant corruption offences occurred. Here, the application was made on 31 October 2014, well after the commencement of the amending legislation.
16 By reason of the provisions of s19, the Court must, once satisfied that the offence to which the application relates is a corruption offence, by order, declare:
(a)that the person was convicted of a corruption offence; and
(b)that this Part (that is, Part 2) applies in relation to the rights of, and benefits paid or payable to or in respect of, the person under any superannuation scheme.
17 As previously noted, Mr Roper conceded that each of the offences for he was convicted were “corruption offences” as defined. In any event, in the absence of such concessions, I would have found that each of the offences as described Judge Gullaci in his sentencing reasons[12] clearly fit within the definition of “corruption offence” as that term is defined in s2 of the CSB Act.
[12]His Honour’s reasons form part of exhibit A
18 Further, pursuant to s19(4), the Court is required to specify in a Superannuation Order an amount worked out using the formula set out in sub-section (4)(a). An up to date certificate signed by the Commonwealth Superannuation Corporation pursuant to s18(3) of the Act, was tendered.[13] It states that the sum of all benefits paid to Mr Roper to date is $15,882.63. Of that sum, the part of the benefits so paid that is attributable to the sum of employee contributions made by Mr Roper is $5,869.45. The certificate is prima facie evidence of the matters stated in it.[14] Mr Roper did not challenge those figures. The difference between those two figures is $10,013.18 which sum is the amount of Commonwealth contributions previously paid to Mr Roper. It is this sum which would be repayable by Mr Roper to the Commonwealth if the Superannuation Order sought is made.
[13] Exhibit C
[14]Exhibit C
19 Secondly, Mr Roper submitted that the proceeding had commenced before the commencement of the amending Act – that is, before 29 November 2012. He referred to a letter from the Attorney-General’s Department dated 16 September 2012. Although that letter was not tendered, I accept that the letter did contain a reference to at least a prospect that an application for a Superannuation Order might be made at some indefinite time in the future.
20 Part 3 of Schedule 3 commenced on 29 November 2012.[15] Clause 15 of the Part 3 provides that s19 of the CSB Act (as amended) applies in relation to a Superannuation Order applied for on or after that date, whether an offence to which the Order relates was committed before, on or after that commencement.
[15]Section 2 of the amending Act
21 This application was brought on 31 October 2014. It could not have been brought before 30 June 2014, the date of the Minister’s authorisation. I do not consider that a letter foreshadowing such an application amounts to, or could be interpreted as, an application brought pursuant to s17.
22 Thirdly, Mr Roper pointed out that he had been sentenced to jail in March 2012 and that the Amending Act commenced about eight months later. He submitted that the required authorisation could have been given by the Minister earlier, and that the application could have been brought before 29 November 2012. Had that occurred, the amending Act would not have applied to the application and the principles enunciated in Della-Vedova would have applied. Had that been so, the Superannuation Order would only have applied to employer contributions made by the Commonwealth in respect of the later ATO period of employment and not the earlier AFP period of employment.
23 There was no evidence before the Court as to the reason for the delay referred to. I accept that a period of some eight months transpired between the date of sentencing and the commencing date. I accept that, had such delay come about because either the Minister or the DPP anticipated the amendments and deliberately delayed the application so as to avoid the consequences of the Della-Vedova decision, such conduct might have amounted to an abuse of process. But there is no evidence at all of that occurring. There is simply no evidence from which such an abuse could be inferred.
24 Mr Roper made a further, related submission based upon the ten years that elapsed between the date he was initially charged with the corruption offences and the present time. He pointed to comments made by Judge Gullaci when sentencing him concerning the delay in bringing the criminal proceedings before the Court and the resulting anxiety and distress for him and his family.[16] Delay is always unfortunate but I do not consider that the delay that occurred here can count against the clear intention of the legislature in respect of this application.
[16]Reasons for Sentence, paragraphs 28 and 29 - Exhibit CDD-1 to Ms Davy’s affidavit
25 Fourthly, with regard to the Certificate pursuant to s18(3) and (4) of the CSB Act, Mr Roper submitted that he had repeatedly requested the DPP to provide him with a Certificate indicating the separate benefits relating to the two separate periods of employment. He stated that none had been provided. Although there was no evidence which specifically touched on these matters, accepting the factual basis of Mr Roper’s submission, it does not appear to affect the DPP’s application. I accept that the refusal may have been frustrating and even discourteous to Mr Roper. However, the fact is that a certificate was prepared shortly before the hearing and an amended certificate served and tendered on the day of the hearing. By reason of s18(3) and (4) of the CSB Act, the Certificate is prima facie evidence of the matters stated in the certificate. No attempt was made by Mr Roper to challenge those matters and I accept the matters set out in it. Because of the Amending Act, the split of benefits and contributions relating the two separate employment periods is not of relevance. Again, the failure to provide Mr Roper with a split up, whilst perhaps discourteous, has not disadvantaged him in relation to this application. In any event, he did not seek any adjournment of the hearing to enable him to peruse the certificate, to digest its contents, or to obtain any further information.
26 Fifthly, Mr Roper submitted that he had not been informed of the Minister’s authorisation and was not provided with information in order to determine whether he had a right to challenge the Minister’s decision. The CSB Act provides no obligation on the part of the DPP or the Minister to provide such notice, nor to provide a person in Mr Roper’s position with any right to challenge or make submissions to the Minister concerning such authorisation.
27 Sixthly, Mr Roper submitted that none of the offences with which he was convicted amounted an attempt to pervert the course of justice. This was a reference to part (c) of the definition of “corruption offence” in s2 of the CSB Act. It is not necessary for me to determine this point as part (c) is merely one of three alternative descriptions of conduct constituting such an offence. The offences plainly fell within parts (a) and (b). Mr Roper conceded that the offences with which he was convicted were “corruption offences” as defined.
28 Seventhly, Mr Roper submitted that, at the time he was sentenced by Judge Gullaci, there had been no application brought for a Superannuation Order. He submitted that such an application may have impacted upon the sentence imposed upon his Honour. Further he submitted that he was not informed of the DPP’s application until after the time for an appeal against the sentence had expired. I consider there is no merit to this point by reason of s43 of the CSB Act which provides that:
“A court shall not, in sentencing a person convicted of an offence punishable by imprisonment … for a term longer than 12 months, take into account the possibility that a superannuation order may be made in relation to the person.”
29 Eighthly, Mr Roper tendered a medical report from Dr Deepa Rajendran dated 24 July 2014 which stated that his wife, Catherine Roper, suffers from progressive Multiple Sclerosis. I allowed the tender whilst doubting the relevance of the report to the application. Mrs Roper’s illness is no doubt distressing and of concern to him. However, this is not a matter where I have a discretion as to whether or not to make the Order sought. Here, once I am satisfied of the pre-requisites set out in the CSB Act, I am obliged to make the Order sought. I have no discretion to exercise.
30 Finally, Mr Roper submitted that the DPP had not complied with a direction made by Judge Murphy of this Court on 3 February 2015 that the DPP must file and serve written submissions in support of its application on or before 1 April 2015. The DPP failed to file or serve such submissions by the due date. Rather, it brought an application to vary Judge Murphy’s Order so as to extend that date for filing and serving submissions until 1 May 2015. On 21 April 2015, Judge Cohen made Orders extending the time for service of submissions as requested.
31 Mr Roper submits that he received no notice of that application for variation of the Order and would have opposed it had he received such notice.
32 Mr Roper brought no appeal against Judge Cohen’s extension Order. Nor did he seek to have the Orders set aside on the ground that he was unaware of the application for variation. He did not submit that he had been prejudiced in any way as a consequence of the one month delay in receiving the DPP’s written submissions.
Conclusion
33 I am satisfied of the following matters:
(a) In March 2012, Mr Roper was sentenced to imprisonment for a term longer than twelve months in respect of five corruption offences committed during the course of his employment with the Commonwealth.
(b) On 30 June 2014, the then Federal Minister for Justice authorised the DPP to make an application for a Superannuation Order in respect of Mr Roper.
(c) On 31 October 2014, the DPP brought this application for a Superannuation Order in respect of Mr Roper pursuant to s17 and s19 of the CSB Act.
(d) The County Court is the appropriate Court for this application.
(e) The DPP gave written notice of the application to Mr Roper and Mr Roper appeared at the hearing of the application.
(f) Mr Roper is a member of the PSS Scheme.
(g) Benefits totalling $15,882.63 have previously been paid by the Commonwealth to Mr Roper under the scheme. Of that sum, $5,869.45 is attributable to the sum of Mr Roper’s own contributions under the scheme plus interest on those contributions accrued to the date specified, 17 August 2015.
(h) $10,013.18 is the amount determined in accordance with s19(4) of the CSB Act.
34 I shall make the Superannuation Order sought in this application.
35 I shall hear the parties as to the form of the Order and Declarations to be made.
- - -
1
1
0