Director of Public Prosecutions v Stark
[2006] VSCA 61
•17 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6544 of 2003
| THE DIRECTOR OF PUBLIC PROSECUTIONS | |
| Appellant | |
| v | |
| JOHN HYMIE STARK and ORS | Respondents |
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JUDGES: | MAXWELL, P, BUCHANAN, JA and REDLICH, AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 February 2006 | |
DATE OF JUDGMENT: | 17 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 61 | |
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Confiscation – Conspiracy to commit offence of obtaining property by deception – Whether “automatic forfeiture offence” – Whether rolled-up count – Whether count charged conspiracy to commit multiple offences – Confiscation Act 1997 Schedule 2.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr N J O’Bryan SC with | Office of Public Prosecutions |
| For the Respondents | Dr J F Bleechmore with Mr I M Hayden | Mr R J Lewis |
MAXWELL, P:
This appeal raises a point of statutory construction concerning the term “automatic forfeiture offence” as defined in the Confiscation Act 1997 (Vic) (“the Act”). It also raises issues concerning the terms in which offences are alleged in a presentment.
On 19 December 2002, the first, second and third respondents (“the offenders”) pleaded guilty to a presentment which included, as count 2 (“the relevant count”), the allegation that –
“... between the 1st day of July 1997 and the 16th day of July 1999 [they] agreed to pursue a course of conduct which would involve the commission of an offence by them namely obtaining property (cash) by deception, namely by falsely representing that the proprietors of Shopaholic stores had good title to all merchandise which they offered for sale at Shopaholic stores and that they were able to pass good title to all such merchandise.”
The offenders were the operators of three retail stores in metropolitan Melbourne under the name “Shopaholic”. They agreed to engage the services of at least four “shop stealers” who would steal goods to order from department stores and retailers around Melbourne. Upon receipt of the goods, any identifying marks would be removed. Of the goods stolen, some were sold through Shopaholic whilst others were sold to associates, or retained by the offenders for their personal use.
The Director of Public Prosecutions, who brings this appeal, submits that the relevant count clearly refers to a single offence of conspiracy to commit a single offence of obtaining property by deception, and that the offence of conspiracy was – by the plea of guilty – admitted to have been committed between 1 July 1997 and 16 July 1999.[1]
[1]As to what is admitted by a plea of guilty, see R v Olbrich (1999) 199 CLR 270 at 275.
Schedule 2 to the Act provided that the following were automatic forfeiture offences:
“An offence against any of the following provisions of the Crimes Act 1958:
(a)section 81(1) (obtaining property by deception) where the value of the property in respect of which the offence is committed is $100,000 or more;
(b)...
(c)section 321(1) where the conspiracy is to commit an offence referred to in paragraph (a) or (b).”
The question raised by the appeal is whether the offence of conspiracy to which the offenders pleaded guilty fell within paragraph (c) of the Schedule. Both the learned trial Judge in the County Court when sentencing the offenders, and the learned Judge in the Supreme Court on appeal, held that it did not.
The starting point, in my view, is paragraph (a) of the Schedule. It is common ground that paragraph (a) will only apply where the offence committed is a single offence of obtaining property by deception, where the value of the property thus obtained is $100,000 or more. This does not, however, mean that paragraph (a) applies only where there has been a single act of deception, as a result of which the offender has obtained property (or cash) to the value of $100,000 or more. For example, a person can be charged with a single continuous offence of obtaining property by deception during a specified period.
A single offence of obtaining property by deception or theft may be constituted by numerous acts where those acts of obtaining property by deception are properly viewed as part of a single ‘continuous’ offence. The offence is ‘continuous’ because of the particular factual circumstances in which the offence was committed. Thus in R v Giretti,[2] Crockett J stated:[3]
“Where in the single count one ‘activity’ or ‘transaction’ or ‘criminal enterprise’ is charged it is, of course, the one offence... The cases, as I have shown, do undoubtedly support the proposition that a proscribed act ordinarily finite in its commission, for example theft, may be committed so frequently pursuant to a regular course of conduct that a series of them becomes the one ‘continuous offence’ which can be pleaded and proved as such.”
[2](1986) 24 A Crim R 112, 118.
[3]See also Archbold, Criminal Pleading, Evidence and Practice (2004, Sweet & Maxwell) at para 1-133 and 1-143a.
A charge of this kind is, of course, to be distinguished from a “rolled-up count”. A rolled-up count aggregates numerous offences of a similar nature into one count. It is duplicitous in nature and hence can only be employed with the consent of the accused.[4] It is often employed for convenience when a plea of guilty is made, in order to simplify the sentencing process.
[4]R v Jones [2004] VSCA 68 at [13]
For example, in R v Shannon,[5] the accused pleaded guilty to a presentment alleging eight counts of theft, these eight counts “rolling up” the original 148 committal charges. Nettle JA, with whom Vincent JA and Osborn AJA agreed, stated:
“In my opinion the offences of obtaining property by deception that were charged in this case were not continuing offences of which it could be said that each individual sale of raffle tickets constituted but part. The correct analysis, I consider, is that each sale constituted an individual offence of obtaining property by deception and could be charged accordingly. The mechanism of ‘rolling up’ a number of charges into one count was doubtless adopted for the very good reasons of a just and efficient disposition, but in my opinion it could not and did not change the essential nature of each of the offences. It follows, in my opinion, that each of the counts in this case was properly described as a ‘rolled-up’ count in the sense in which that expression was used in R v Ralphs.”[6]
[5][2005] VSCA 143.
[6]At [6].
Turning now to paragraph (c) of the Schedule, it is clear that the paragraph will apply - and only apply - where the conspiracy the subject of the charge is a conspiracy –
“[to commit an offence of obtaining property by deception] where the value of the property in respect of which the offence is committed is $100,000”.
Since paragraph (a) of the Schedule applies only to a single offence, paragraph (c) must necessarily be confined to an offence of conspiracy to commit a single offence of obtaining property by deception. This follows from the words of paragraph (c), which provide that an offence under s.321(1) will only be an automatic forfeiture offence –
“where the conspiracy is to commit an offence referred to in paragraph (a) …”.
Although an offence of conspiracy to commit multiple offences is perfectly intelligible – and raises no issue of duplicity – senior counsel for the Director properly conceded that such an offence could never come within paragraph (c). Because there is a manifest intention to the contrary, the rule of interpretation that the singular includes the plural[7] has no application here. The learned Judge correctly so held.[8]
[7]Interpretation of Legislation Act 1984 (Vic) s.37(c).
[8][2004] VSC 349 at [19].
Did the relevant count charge a single offence of conspiracy?
On its face, count 2 alleged one single and continuous offence of conspiracy to commit an offence of obtaining property by deception. Moreover, this appears to me to be how the matter proceeded before the learned County Court Judge. The prosecutor confirmed to the Judge that, for paragraph (c) of the Schedule to apply, there had to be a conspiracy to obtain property by deception to the value of $100,000 or more. The prosecutor referred to the presentment and the plea of guilty, and continued:
“... [O]nce it is pleaded this way and once it is pleaded to, it is clearly one offence, and it is one offence that is a conspiracy which involves an ongoing business of dishonesty in obtaining property by deception, namely, money, and it is over $100,000. ... In essence, that is what it is: one count alleging a conspiracy to obtain property by deception over a period of time, and that clearly was an offence of conspiracy to obtain over $100,000 in money, it was an ongoing business [in] which the three had varying roles.”[9]
[9]Emphasis added.
There is, of course, no difficulty in charging conspiracy as a continuing offence. As Toohey J observed in Woss v Jacobsen:[10]
“Although a conspiracy is complete as a crime when an agreement is made, it continues in existence so long as there are two or more parties intending to carry out its design... Although the essence of conspiracy is the unlawful agreement made by the conspirators, conspiracy as a crime is committed wherever and whenever it is shown that the agreement exists between the conspirators. It is a crime of duration, a continuing offence: R v G, F, S and W.”[11]
[10](1985) 11 FCR 243 at 250.
[11][1974] 1 NSWLR 31.”
More recently, in Truong v R,[12] Gleeson CJ, McHugh and Heydon JJ said:
“Although a crime of conspiracy has been committed, and in that sense is complete, once an agreement to commit a crime has been made, conspiracy is a continuing offence. It is an error to think that the crime comes to an end once the agreement has come into existence. That is the error that was rejected by this Court in Savvas v R.[13] The point was explained by Lord Pearson in Director of Public Prosecutions v Doot.[14]
‘A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely, (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place... But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be.’”
[12](2004) 78 ALJR 473 at 481.
[13](1995) 183 CLR 1.
[14][1973] AC 807 at 827.
Was it a rolled-up count?
Counsel for the offenders argued that the relevant count was a rolled-up count and hence that paragraph (c) could not apply. In my opinion, this submission must be rejected.
There is nothing in the language of the relevant count to indicate that it is a “rolled-up” count. Both parties accepted, however, that the language used is not conclusive and that recourse must necessarily be had to the history of the matter in order to ascertain whether any “rolling-up” has taken place. If it has, then – as Shannon[15] makes clear – that process does not change the “essential nature” of the offences.
[15]Supra at [6].
Senior counsel for the Director argued that the historical review should not extend back beyond the terms of the original presentment. Any negotiations which might have taken place between prosecution and defence before the filing of the presentment were, he argued, irrelevant. Counsel for the offenders, on the other hand, argued that it was appropriate – and, in this case, necessary – to examine the charges originally laid by police. When this was done, he contended, it would become apparent that the relevant count was the product of the “rolling-up” of multiple offences of conspiracy and/or multiple offences of obtaining property by deception into a single count of conspiracy to commit a single offence of that kind. As already explained, the offence of conspiracy to commit multiple such offences could never come within paragraph (c).
In my opinion, the broader approach for which the offenders contend is clearly correct. Where “rolling-up” is in question, I see no reason to limit the historical review to the period beginning with the initial presentment. If these offenders had pleaded guilty to a single count which could be shown to represent the “rolling-up” of multiple offences originally charged by police, it would be wrong, and in the present context unfair, to treat the count as anything other than “rolled-up”. In those circumstances, it would not have mattered that the initial presentment and the final presentment were relevantly identical.
Unfortunately for the offenders, that is not what the history reveals. It reveals, instead, that the relevant count involved no “rolling-up” whatsoever. After the completion of argument, we were supplied with the charge sheets for the charges originally laid by police against the offenders. Amongst the 141 charges originally laid against John Stark, there is but a single charge of conspiracy to obtain property by deception, and it is in the following terms, alleging that Stark –
“at various locations between the dates of 1/1/1996 and 16/7/99 did agree with; Marianne STARK Damian STARK, Peter CASEY, Shona VIRTUE, Deborah PHILLIPS and Tamara SIMS to pursue a course of conduct by them (John, Marianne & Damian STARK and Peter CASEY) which would involve the commission of an offence by them namely obtaining property by deception by falsely purporting to be the lawful owner of assorted goods to be sold by same.
A single charge in the same terms was also laid against each of Marianne Stark and Damian Stark.
In the case of each of the offenders, multiple charges were originally laid of conspiracy to steal, that is, conspiracy to pursue a course of conduct which would involve stealing. The presentment, however, contained only a single count of conspiring to steal, that count evidently being the product of an agreed “rolling-up” of the multiple like offences. By contrast, the relevant count in the presentment – of conspiracy to obtain property by deception – was recognisably the same as the original charge. There was no “rolling-up”, because there was only ever one such offence charged. (Having also been supplied subsequently with copies of the charge sheets, counsel for the offenders conceded – properly – that this was so).
In short, each of the offenders had, from the outset, been charged with a single offence of conspiracy to commit a single (continuous) offence of obtaining property by deception, the conspiracy being alleged to have been on foot over a period of years. That period was originally alleged to have been three and a half years but in the relevant count it was reduced to two years.
Did count 2 charge a conspiracy to commit multiple offences?
The remaining question is whether the relevant count charged a conspiracy to commit a single offence or a conspiracy to commit multiple offences. As explained earlier, if the latter is the correct characterisation, then paragraph (c) of Schedule 2 cannot apply.
The Judge in the County Court concluded that it was a charge of conspiracy to commit multiple offences. So much appears from the following passages from his Honour’s reasons:
“Counsel submitted that the offence created by s 321(1) is conspiracy to commit an offence, not conspiracy to commit a series of offences. If the prisoners had been charged with the completed offences, no single offence would have involved a financial advantage of $100,000 or anything like it. Just as a number of substantive offences cannot be aggregated to produce an automatic forfeiture offence, a count alleging a conspiracy to commit a number of offences cannot be used in that way either.
...
I uphold this submission. Clause 2(c) refers to ‘a conspiracy to commit an offence’. Clause 2 could have provided for aggregation where, for example, the offences constituted a series of transactions or arose out of a single course of conduct, likewise cl 2(c).”
When the matter came before the Supreme Court, the learned Judge held that the trial Judge’s conclusion – that the offence charged was a single conspiracy to engage in numerous offences of obtaining property by deception – was “plainly open to him”. As respondents to this appeal, the offenders have sought to uphold that conclusion. They argue, variously, that –
· the offences do not lend themselves to identification as sufficiently linked in time, place and modus operandi to support an averment in a single count;[16]
[16]See R v Moussad (1999) 152 FLR 373; DPP v Merriman [1973] AC 584 at 607.
· the relevant count uses the same language as counts 1, 4 and 5 which –
“are clearly rolled-up counts which alleged conspiracies to commit multiple offences.”
Count 4, for example, alleges that the first respondent and one Csontos –
“between the 2nd day of June 1998 and the 16th day of July 1999 agreed to pursue a course of conduct which would involve the commission of an offence by Csontos namely burglary at various commercial premises.”
The respondents pointed out that, as the trial Judge recorded, it had been agreed that Csontos committed 33 burglaries and three attempted burglaries in that period. Counts 1 and 5 were in similar terms, each alleging a single conspiracy to commit a single offence of “stealing merchandise from various commercial premises”. It was common ground that there were multiple incidents of stealing.
In my opinion, and with respect to the views expressed by the learned County Court Judge and the learned Supreme Court Judge, these submissions must be rejected. The language of the relevant count was unambiguous. As set out earlier, it alleged an agreement –
“to pursue a course of conduct which would involve the commission of an offence by [the conspirators] namely obtaining property (cash) by deception...”
There is, as I have said, no doubt about the legal validity of a count expressed in these terms. Nor is the person charged in any doubt as to the nature of the allegation made. The person might, of course, contest the charge on the ground that there was not sufficient frequency, or continuity, or proximity in time, between the individual acts to justify treating them as part of a single “continuous” offence.[17] No such challenge can, however, be made once a plea of guilty is entered. The defendant admits the elements of the charge. Here, the offenders admitted the allegation that they conspired to commit a single offence.
[17]cf. para 8 above and the authorities there cited.
In those circumstances, the sentencing Judge was not entitled to speculate as to whether, instead, the offence might have been charged as a conspiracy to commit multiple offences. In this case, the charge was of conspiracy to commit a single
offence. It was not open to the trial Judge to treat it as a charge of any other kind. Had the question arisen, the present case would seem to have been one in which the “single continuous offence” characterisation was entirely appropriate. But that is not a question which arises, in view of the pleas of guilty.
Conclusion
For these reasons, the relevant count charged an offence to which paragraph (c) of the Schedule was capable of applying. The learned Judge in the County Court was in error in concluding that the paragraph did not apply, on the ground that the relevant count was a “rolled-up” count or that it alleged a conspiracy to commit multiple offences. As I have explained, it was not, and it did not.
Whether paragraph (c) in fact applies in this case depends on whether the conspiracy was at the outset – or became at some time before its discovery – an agreement –
“to commit an offence of obtaining property by deception where the value of the property in respect of which the offence is committed is $100,000”.
It was common ground that this Court was not in a position to, and in any case should not, embark on that factual enquiry. The parties agreed that, if the appeal succeeded, the matter would have to be remitted to the County Court for determination. That is the course which I propose.
It follows, in my view, that the appeal must be allowed. For the reasons given, the offence charged by count 2, to which the offenders pleaded guilty, was capable of being an automatic forfeiture offence within the meaning of paragraph (c) of the Confiscation Act.
BUCHANAN, JA:
I agree with the President, for the reasons he has stated, that the offence
charged by count 2 in the presentment was capable of being an automatic forfeiture offence within the meaning of paragraph (c) in Schedule 2 to the Confiscation Act 1997, and accordingly the appeal should be allowed.
REDLICH, AJA:
For the reasons given by the President I agree that the appeal should be allowed.
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