Director of Public Prosecutions v O'Driscoll

[2004] NSWCCA 119

Reported Decision: 144 A Crim R 506

New South Wales

Court of Criminal Appeal

CITATION:	Director of Public Prosecutions v O'Driscoll [2004] NSWCCA 119
HEARING DATE(S):	12/02/2004
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	Beazley JA at 1; O'Keefe J at 2; Bell J at 35
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal law - Appeal - Pecuniary Penalty Order - Pecuniary Penalty Order based on several convictions - Quashing of some such convictions - Time for appeal against making of Pecuniary Penalty Order - Amendments to legislation concerning Pecuniary Penalty Orders - Effect of legislative amendments.
LEGISLATION CITED:	Proceeds of Crime Act 1987 (Cth) ss 14, 22, 26, 27, 30, 32, 57, 100 Proceeds of Crime Act 2002 (Cth) ss 2, 5, 116, 120, 338, 146, Part 2-2, Division 6, Part 2-4, Division 5 Crimes Act 1914 (Cth) s 29D Financial Transaction Reports Act 1988 (Cth) s 31 Criminal Appeal Act 1912 (NSW) s 10 Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) s 23, Schedule 7, Part 1.
PARTIES :	Director of Public Prosecutions (Cth) William Benedict O'Driscoll
FILE NUMBER(S):	CCA 660345/03
COUNSEL:	Mr T Muir - Crown Mr M Thangaraj with Mr I McLachlan - Respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions James A Maustacas & Co

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0660
LOWER COURT JUDICIAL OFFICER :	Blackmore DCJ

- 14 -

660345 of 2003

BEAZLEY J
O’KEEFE J
BELL J

22 March 2004

DIRECTOR OF PUBLIC PROSECUTIONS V WILLIAM BENEDICT O’DRISCOLL

Judgment

BEAZLEY JA:

1 I agree with O’Keefe J.

O’KEEFE J:

Introduction

2 This is an appeal by the Director of Public Prosecutions of the Commonwealth (“DPP”) against an order for a pecuniary penalty for $1,148,143.20 made in the criminal jurisdiction of the District Court on 23 August 2002. The pecuniary penalty order appealed against was expressed to be made pursuant to s 26 of the Proceeds of Crime Act 1987 (Cth). The amount of $1,148,143.20 was stated in order to be:

“the amount of the benefit derived by the Respondent (“ William Benedict O’Driscoll ”) from the commission of the offences under s 29D of the Crimes Act 1914 and s 31 of the Financial Transaction Reports Act 1988 set out in the Schedule” (italics added).

The appeal was lodged on 4 September 2003.

3 The schedule to the order set out two offences under the Crimes Act, 1914 (Cth) (Crimes Act 1914) of defrauding the Commonwealth that were committed between 15 July 1995 and 11 August 1998 and 16 offences under the Financial Transaction Reports Act 1988 (Cth) (Financial Transaction Reports Act) committed between 29 February 1996 and 17 April 1997.

4 The respondent had been charged with offences under both Acts. On 8 May 2002 a jury found him guilty of two offences under s 29D of the Crimes Act 1914 and 16 offences under s 31 of the Financial Transaction Reports Act. He was sentenced to imprisonment, for an aggregate term of 7 ½ years with a non-parole period of 5 years to commence on 26 November 2001.

5 In the course of sentencing him the District Court Judge dealt with the schemes in which the Respondent had engaged. He calculated that the Respondent had obtained a benefit of “more than $900,000.00” from one scheme and “$236,036.00” from the other. Both of these amounts were arrived at by calculations based on a percentage of various amounts deposited into certain bank accounts as part of the schemes. In imposing the sentences for the offences under the Financial Transaction Reports Act the Judge said:

“Those offences falls within the same factual parameters as the two s 29D offences …”

and:

“The fact that the transactions were carried out in the way they were, as cash transactions for amounts less than $10,000.00, considerably diminished the likelihood of detection. The offences were therefore an integral part of the fraud and I have taken that fact into account as part of the commission of the fraud itself.”

6 On 23 August 2002 the District Court Judge (the Judge) made the order referred to in paragraph 1 above, it being in the form requested by the DPP.

7 The Respondent appealed to the Court of Criminal Appeal against his convictions and on 26 June 2003 his convictions in respect of the offences under the Financial Transaction Reports Act were quashed. However, his appeal with respect to the convictions under s 29 D of the Crimes Act 1914 was dismissed.

Statutory Provisions and Analysis

8 The present appeal by the DPP is expressly based on s 100 of the Proceeds of Crime Act 1987 (Cth) (“the 1987 Act”). That Act provided, inter alia, for various types of orders against persons in relation to indictable offences. These included:

(i) a restraining order against property of a person who has been convicted of, or has been, or is about to be, charged with an indictable offence (s 43(2));
(ii) a forfeiture order against property that is tainted i.e. used in or in connection with the commission of an indictable offence or the proceeds of such an offence (s 19(1), s 4);
(iii) automatic forfeiture of property where a person is convicted of a serious offence and certain other conditions are fulfilled, one of which is that a restraining order had been made in respect of certain property before the commencement of the Proceeds of Crime Act 2002 (Cth) (s 30(1));
(iv) a pecuniary penalty order against a person convicted of an indictable offence in respect of the benefits derived by such person from the commission of such an offence (s 14(1)(b).

9 Each of the categories of orders referred to in the preceding paragraph could be brought to an end under the provisions of the 1987 Act:

(i) A restraining order that was made in reliance on the proposed charging of a person with an indictable offence ceased to have force at the end of 48 hours if the person was not charged with such offence or a related indictable offence (s 57(1)). If the restraining order was made in relation to the charging of a person with an indictable offence the order ceased to be in force when the charge was withdrawn or the person was acquitted. Such discharge occurred when the acquittal occurred (s 57(2)(d)(ii)), unless the acquittal occurred after the commencement of the Proceeds of Crime Act 2002 (Cth) . In such a case the order ceased to be in force at the end of the period of 28 days after the day of the acquittal.
(ii) In relation to a forfeiture order made under the 1987 Act, where the forfeiture order was made in reliance on a person’s conviction of an indictable offence and the conviction was subsequently quashed, the quashing of the conviction discharged the order (s 22(1)). However where the conviction was quashed after the commencement of the Proceeds of Crime Act 2002 (Cth) , s 22 of the 1987 Act has no application. The mechanism for dealing with such a situation is to be found in Part 2-2, Division 6 of the Proceeds of Crime Act 2002 (Cth) . Thus the provisions of the 1987 Act in relation to the discharge of forfeiture orders commit those which are the subject of the relevant event i.e. quashing of a conviction, to a regime that is different where the event occurs after the coming in to force the Proceeds of Crime Act 2002 (Cth) .
(iii) A forfeiture order made pursuant to s 30 of the 1987 Act in reliance on a conviction for a serious offence may in effect be reversed where the conviction is subsequently quashed (s 32(1) and (3)). However specific provision is made in ss 32(1A) that the procedure provided for in s 32 does not apply if the conviction was quashed after the commencement of the Proceeds of Crime Act 2002 (Cth) .
(iv) A pecuniary penalty order made pursuant to s 26 of the 1987 Act

10 Under the 1987 Act a pecuniary penalty order is defined to mean “an order under section 26(1)” of the 1987 Act. By such Act the DPP was empowered to seek such an order “where a person is convicted of an indictable offence” (s 14). However, the power of the DPP to seek such an order is denied as from the commencement of the Proceeds of Crime Act 2002 (Cth), unless some or all of the property which could be used to satisfy the order is property in respect of which a restraining order is in force (s 14(2)). Since the power of the court to make a pecuniary penalty order is predicated on an application being made by the DPP for such an order, the denial to the DPP of power to make such an application to the court relevantly deprives the court of jurisdiction to make pecuniary penalty orders under the 1987 Act as from the commencement of the Proceeds of Crimes Act 2002 (Cth). Furthermore, the DPP is not empowered to make an application for a pecuniary penalty order under s 14(1) against a person in respect of benefits derived from such person from the commission of an offence if an application has previously been made under s 14(1) (s 14(4)(a)(i)) and the application has been finally determined on the merits (s 14(4)(b)). The court may however grant leave to make such an application, but that power is negated in the present case by s 14(5) (a) and (b).

11 Like those provisions of the 1987 Act that relate to restraining orders, forfeiture orders and automatic forfeitures, the provisions of s 14 support the conclusion that after the commencement of the Proceeds of Crime Act 2002 (Cth) applications relating to the making of pecuniary penalty orders do not fall within the ambit of the 1987 Act, except in quite limited circumstances that do not include those of the present case.

12 Section 100 provides for appeals in respect of, inter alia, pecuniary penalty orders. On appeal the court is empowered by s 100(4) to confirm, discharge or vary any pecuniary penalty order the subject of the appeal. It was conceded on behalf of the DPP there is no mechanism in the 1987 Act for the DPP to go back to the District Court that made the pecuniary penalty order following the quashing of some of the convictions on which the order was based.

13 Rights of appeal are conferred on a person against whom a pecuniary penalty order is made and on the DPP (s 100(1) and (5)). A person against whom a pecuniary penalty order has been made:

“may appeal against that order in the same manner as if it were, or were part of, a sentence imposed on the person in respect of the offence in reliance on which the order was made” (s 100(2))

The DPP may appeal:

“against … a pecuniary penalty order … in the same manner as if the order were, or were part of, a sentence imposed in respect of the offence in reliance on which the order was made.” (s 100(5))

Thus the right of appeal conferred on the DPP by the 1987 Act is in the same terms as that conferred on a person against whom a pecuniary penalty order is made.

14 Although no time limit is expressed in the 1987 Act within which the right of appeal against a pecuniary penalty order may be exercised, the section proceeds on the basis that the procedural rules of the court to which the appeal is made will apply. This is inherent in those provisions of s 100 that prescribe that the right of appeal is to be exercised “in the same manner as if” the pecuniary penalty order were a sentence imposed on the person the subject of the order. As a consequence s 100 is not to be construed as conferring a right of appeal without limitation as to the time within which such right may be exercised.

15 In New South Wales an appeal by a convicted person against his or her conviction lies to the Court of Criminal Appeal. Such appeals are regulated by the Criminal Appeal Act 1912 (NSW). The Criminal Appeal Act 1912 (NSW) provides for the exercise of the right of appeal “within 28 days after the conviction or sentence” (s 10(1)(a)), although the court may extend the time within which a notice of appeal may be given (s 10(1)(b)).

16 Under the 1987 Act a pecuniary penalty order is defined to mean an order made under s 26 of the Act (see definition in s 4). The legislative scheme for the making of pecuniary penalty orders depended on “the commission of an offence” (s 26), but the order was able to be enforced as if it were an order made in civil proceedings instituted by the Commonwealth and the amount included in the order was taken to be a judgment debt (s 26(9)). The assessment of the value of the benefits derived from the commission of an offence was required to be made in accordance with s 27.

17 The Proceeds of Crime Act 2002 (Cth) (No 85, 2002; the 2002 Act) was assented to on 11 October 2002 and came into force on 1 January 2003 (s 2). The objects of the 2002 Act are set out in s 5. They are broader and more expansively expressed then those of the 1987 Act (s 3). The 2003 Act also provides for bases for the making of restraining, forfeiture and pecuniary penalty orders that are different from and wider than those provided for in the 1987 Act. In so far as pecuniary penalty orders are concerned the provisions of the 2002 Act (Part 2-4, ss 116 to 150) are much more draconian than those in the 1987 Act. For example, conviction of an indictable offence is no longer necessary.

18 Under s 116, it is no longer necessary that the person the subject of pecuniary penalty order be convicted of an indictable offence and for such person to have derived benefits from the commission of an indictable offence before such an order is made. This is in marked distinction to the requirements of s 26(1) of the 1987 Act. However, an pecuniary penalty order may still be made on the basis of a conviction for an indictable offence and deriving benefits from the commission of such offence (s 116(1)(b)(i). Furthermore, the fact that a person has been acquitted of the offence that was the basis for the making of the pecuniary penalty order does not affect the Court’s power to make such an order in relation to that very offence (s 120). Under the 2002 Act, it is a sufficient basis for the making of a pecuniary penalty order if the court is satisfied on the balance of probabilities that the person has committed a serious offence (s 116(1)(b)(ii)) and, provided that the offence is not a terrorism offence, that it was committed within 6 years preceding the making of the application (s 116(2)).

19 Under the 2002 Act a pecuniary penalty order is defined to mean “an order made under s 116 that is in force” (s 338). The Act also provides for the discharge of a pecuniary penalty order, where such an order has been made in relation to a conviction for a serious offence. Section 146 provides:

“(1) A pecuniary penalty order made in relation to a person’s conviction of a serious offence is discharged if:
(a) the person’s conviction of the offence is subsequently quashed (whether or not the order relates to the person’s conviction of other offences that have not been quashed); and
(b) the DPP does not, within 14 days after the conviction is quashed apply to the court that made the order for the order to be confirmed.
(2) However, unless and until a court decides otherwise on such an application, the quashing of the conviction does not effect the pecuniary penalty order:
(a) for 14 days after the conviction is quashed; and
(b) if the DPP makes such an application;
(3) A pecuniary penalty order made in relation to a person’s conviction of an offence that is not a serious offence is discharged if the person’s conviction for the offence is subsequently quashed.”

20 The pecuniary penalty order presently under consideration was not made under s 116 of the 2002 Act. It was made under s 26 of the 1987 Act. However, the quashing of a number of the convictions on which the pecuniary penalty order was based occurred after the commencement of the 2002 Act. Thus, the relevant events in relation to the pecuniary penalty order straddle the two Acts. The transition between the two Acts is dealt with by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) (Transitional Provisions Act). In the Transitional Provisions Act there are provisions that deal with pecuniary penalty orders made under the 1987 Act where the conviction on which such orders were based has been quashed. Section 23 provides that:

“If:
(a) before or after the commencement of the Proceeds of Crime Act 2002, an order was made under section 26 of the Proceeds of Crime Act 1987 in relation to a person’s conviction of an offence;
(b) after the commencement of the Proceeds of Crime Act 2002, the conviction is subsequently quashed;
Division 5 of Part 2-4 of the Proceeds of Crime Act 2002 applies in relation to the order in the same way that it would apply if the order had been made under Division 1 of that Part.”

21 The 2002 Act was assented to on 11 October 2002 and relevantly came into effect on 1 January 2003. The pecuniary penalty order under consideration in the present case was made before the commencement of the 2002 Act and the conviction on which it was based was quashed after its commencement. It therefore falls within s 23 of the Transitional Provisions Act. The offences for which the Respondent was convicted were serious offences within the meaning of the 2002 Act (s 338) in that a loss to the Commonwealth of more than $10,000.00 was caused. The combined effect of these provisions is that the pecuniary penalty order under consideration must be dealt with in accordance with Division 5 of Part 2-4 of the 2002 Act, in which s 146 is included.

22 The scheme of s 146 is that:

(i) it contemplates that a pecuniary penalty order may relate to a conviction for more than one offence. This is clear from the parenthetical clause in s 146(1)(a);

(ii) when a pecuniary penalty order is based on convictions in relation to multiple offences and some, but not all, of such convictions are later quashed.

the pecuniary penalty order is nonetheless discharged unless the DPP within 14 days after the quashing of any such convictions makes an application to the Court that made the order for the order to be confirmed.

23 Since 16 of the convictions on which the pecuniary penalty order was based were quashed on 26 June 2003 and no application was made by the DPP within 14 days after such date for the order to be confirmed, the pecuniary penalty order has been discharged and there is now no avenue for the DPP to seek to set it aside or vary it under the 2002 Act.

24 Faced with this problem, the DPP submitted that the relevant provisions of the 1987 Act were not repealed by the 2002 Act or the Transitional Provisions Act and that s 100 continued to be applicable to all pecuniary penalty orders made under the 1987 Act. This submission flies in the face of the terms of s 23 of the Transitional Provisions Act. Furthermore, the amendments effected to the 1987 Act by Part 1 of Schedule 7 of the Transitional Provisions Act, some of which have already been referred to above, make it clear that after the commencement of the 2002 Act it is to that Act that regard should be had in dealing with matters, such as in the present case, that straddle the 1987 and the 2002 Acts. As a consequence the arguments by the DPP concerning the applicability of s 100 of the 1987 Act to the pecuniary penalty order under appeal should be rejected. The powers conferred by s 100 have no application to such pecuniary penalty order in the circumstances of the present case.

25 The DPP also argued that the pecuniary penalty order of 23 August 2002 was affected by the decision of the Court of Criminal Appeal on 26 June 2003 only in so far as the order related to the Financial Transactions Reports Act. However, the order that was made under s 26 of the 1987 Act is expressed to be in respect of the offences under both the Financial Transactions Reports Act and the Crimes Act 1914. It is a single order for one amount. It is indivisible. Whilst the express inclusion in it of the offences under both Acts may have been brought about by the way in which the Judge related the two sets of offences, ie, that detection of the Crimes Act 1914 offences was rendered more difficulty by the intertwining of the facts and circumstances of both sets of offences, the fact remains that the order was made on the basis of both sets of offences. Since 16 of the 18 offences on which it was based have been quashed, the pecuniary penalty order has been discharged by virtue of s 146 of the 2002 Act.

26 Even if the provisions of s 100 of the 1987 Act were still to be regarded as applying to the pecuniary penalty order, (which they do not), there would still be no right in the DPP at this time to have the order varied. Any power of the Court of Criminal Appeal to vary the order is conditioned by the time limits provided by the Criminal Appeal Act 1912. The time for appeal has long since expired. No application has been made by the DPP for an extension of the time within which to appeal. So, even if the matter were to be considered pursuant to the provisions of the 1987 Act, the present appeal would fail.

27 The DPP has also contended that the pecuniary penalty order included unnecessary words, namely:

“and section 31 of the Financial Transaction Reports Act 1988.”

and that they can, and should, be treated as surplusage and disregarded. Those words however, are part of the order and are consistent with the way in which the Judge dealt with the interrelation and intertwining of the factual circumstances giving rise to offences under both Acts. It is not appropriate to ignore them as surplusage.

28 It was further contended that the pecuniary penalty order did not distinguish or identify the quantum of the benefit derived by the Respondent from the offences under the Crimes Act 1914 on the one hand and the Financial Transactions Reports Act on the other. This was said to constitute an error in the making of the pecuniary penalty order in the form in which it was made and that, on a proper construction of s 26 and s 27 of the 1987 Act, the Judge was required to assess the benefit to the offender derived from the commission of each offence or set of offences. I do not think that this is correct. In s 26 of the 1987 Act the singular (“an offence”) includes the plural (“offences”) (Interpretation Act 1987 s 8(b)). In addition s 14(6) provides that an application under the section may be made in respect of one or more indictable offences. It was therefore competent for the Judge to assess the benefits derived by the Respondent from the offences for which he had been convicted and to include a single amount in respect of such offences in the one order.

29 Section 27(2) reinforces such a view. It provides that:

“For the purposes of an application for a pecuniary penalty order against a person (in this subsection called ‘the defendant’), the value of the benefits derived by the defendant from the commission of an offence or offences shall be assessed by the court …” (bold added).

The form of this subsection contemplates the making of a single (“a”) pecuniary penalty order in which the value of the benefits derived by the defendant may be from the commission of a single offence or from the commission of a number of offences (“offence or offences”).

30 Section 27(5) supports a like conclusion. It refers to the making of an application” for a pecuniary penalty order against a person in respect of 2 or more ordinary indictable offences…” This subsection clearly contemplates the inclusion of the value of the benefits derived from multiple offences in the one order. Section 27(6) is to a like effect in respect of serious offences.

31 Thus the inclusion within the pecuniary penalty order of a single figure as the value of the benefit derived by the Respondent from the commission of multiple offences is contemplated by the 1987 Act. It does not involve error and does not have the effect of invalidating the order.

32 Even if, contrary to the view expressed above, it were to be regarded as an error to include one amount in a pecuniary penalty order based on multiple offences, any such error was committed on 23 August 2002 and that is well outside the time limit for appeal provided for by s 10 of the Criminal Appeal Act 1912. In this context, it should not be lost sight of that the pecuniary penalty order made by the Judge was in the precise form that was sought by the DPP. The Judge did no more than that which the DPP asked him to do. In these circumstances the DPP can hardly be said to be aggrieved by the actual form, or the making, of the order.

33 None of the foregoing matters affect the validity of the pecuniary penalty order. It was an order that was valid when made. It was as a consequence of subsequent events that it was discharged. Had the DPP made application for confirmation of the order pursuant to s 146 of the 2002 Act within the time limited by that section, the pecuniary penalty order made in the District Court on 23 August 2002 would not have been discharged until the application had been disposed of pursuant to ss 149 and 150.

34 Finally it was submitted on behalf of the DPP that the order made on 23 August 2002 was in effect two pecuniary penalty orders rolled into one and that whilst one of those was struck down as a result of the decision of the Court of Criminal Appeal on 26 June 2003, the other remains extant. Such submission does not accord with the form of the order made in the District Court as was requested by the DPP. A single order was made for a single amount that was stated to be the proceeds derived by the Respondent from the various offences referred to in the order. To treat it otherwise would be a departure from reality and not in accordance with law. This submission is without foundation and fails.

Conclusion

35 For the foregoing reasons I am of opinion that the appeal by the DPP should be dismissed and I so propose.

BELL J:

36 I agree with O’Keefe J.

Order

37 The order of the Court is that the appeal is dismissed.

oOo

Last Modified: 04/29/2004