Mai Li (aka Vo) v Director of Public Prosecutions
[2011] VSCA 178
•3 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0053
S APCI 2011 0054
| JENNIFER MAI LI (also known as TRAN TO VO) | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Respondent |
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APPLICATION ON SUMMONS
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| JUDGES | TATE JA and ALMOND AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 June 2011 |
| DATE OF JUDGMENT | 3 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 178 |
| JUDGMENT APPEALED FROM | R v Tran Vo (Unreported, County Court of Victoria, Judge Nixon, 5 September 2008) |
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APPEAL – Procedure – Extension of time sought in which to appeal pecuniary penalty order – Reasons not sufficient to explain considerable delay – Extension refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Ms L De Ferrari | SDR Law |
| For the Respondent | Mr S G O’Bryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
TATE JA:
By summons dated 18 April 2011, the applicant, Ms Mai Li, seeks an extension of time within which an appeal may be brought to set aside the pecuniary penalty order (’the PPO’) made on 5 September 2008 by Judge Nixon of the County Court. The application is opposed by the Director of Public Prosecutions.
In 2008 the applicant, who is also known as Tran Vo, pleaded guilty before his Honour Judge Nixon, on Presentment No. C060525.2 to one count of obtaining a financial advantage by deception. On a second Presentment No. U02472504 the applicant pleaded guilty to six counts of obtaining a financial advantage by deception. The applicant had more than 20 previous convictions from two previous court appearances in the Magistrates’ Court on offences involving dishonesty including obtaining property by deception, attempting to obtain property by deception, and making a false statement. Counts 5 and 6 of Presentment No. U02472504 were committed while the applicant was on bail pending her appeal from an earlier sentence.
In his reasons for sentence, his Honour noted that the applicant had personally obtained $761,000 by way of a financial advantage. He said to the applicant:
The crimes which you committed well merit the description of devious and dishonest and in addition they are the result of meticulous planning on your part.
You left no stone unturned in your endeavour to cover your tracks and dishonesty became second nature to you.
His Honour imposed a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and three months’ imprisonment.
His Honour noted that the applicant had repaid certain money to Circuit Finance Company Australia, one of the entities deceived by the applicant, and that a further amount of money was held by the Supreme Court following the sale of a property. The sum of $553,626.72 remained outstanding and his Honour ordered, by reference to s 59(1) and s 60(1) of the Confiscation Act 1997, by consent, that the applicant pay a pecuniary penalty to the State of Victoria in that sum.
On 2 May 2010, the applicant was released from prison, and permitted to serve the final six months of the non-parole period by way of home detention.
In early November 2010, the Applicant was released on parole.
The applicant had been declared bankrupt in February 2008 and on 1 April 2011, the applicant was discharged from bankruptcy.
The draft Notice of Appeal filed by the applicant contains the following grounds:
(1) The power under s 59(1) and/or s 60(1) of the Confiscation Act 1997 is discretionary.
(2) In making the PPO, the learned judge erred in the exercise of his discretion by failing to consider relevant matters, namely, that the applicant:
a. had no means to satisfy the PPO;
b. was bankrupt at the time the PPO was imposed;
c. would, on the same day, be sentenced to a significant term of imprisonment.
The factors relevant to the discretionary grant of an extension of time are well known.[1] They include:
the reasons for and extent of the delay;
the existence of an arguable case or realistic prospects of success in the appeal (so that an extension of time is not futile), or, as sometimes alternatively expressed, whether doubt attends the decision below; and
the prejudice likely to be suffered by the respondent if an extension is granted and whether such prejudice is irremediable.
[1]Phillips v Australian Finance and Leasing Limited [2009] VSCA 256, [4]-[5].
In this case, the extension sought by the applicant is lengthy. It was common ground that the applicant had 14 days from the date the PPO was imposed either to file a notice of appeal, in accordance with s 74(2) of the County Court Act 1958 or to seek leave to appeal in accordance with s 142(3) of the Confiscation Act, and ss 567 (d) and 572(1) of the Crimes Act 1958. The 14-day period expired on or about 19 September 2008.
The applicant filed her summons seeking to set aside the PPO on 18 April 2011, more than two years and six months out of time. The applicant is clearly well out of time. There has been considerable delay.
In an affidavit sworn 18 April 2011 the applicant deposes that the reasons for the delay include the fact that at the time the PPO was made she was completely overwhelmed by the thought of going to prison. She found the time spent in prison very draining, physically and mentally, and did not give much thought to her future.
The applicant conceded that in February 2009 two people from Asset Confiscation Operations of the Department of Justice visited her in prison. One of the officers, a man named Neil, told her the exact amount of the PPO and she stated that she had no assets to pay the PPO and was bankrupt. She was asked about her future and was told that the PPO would probably stay with her for the rest of her life.
The applicant’s evidence was that she was visited again while in prison by Neil from Asset Confiscation Operations to see whether anything about her financial circumstances had changed since his last visit.
After she was released into home detention, the applicant was visited again by Neil to check on her financial situation.
After a family meeting in January 2011, at which there was a discussion about the need for the applicant ultimately to buy her own car rather than borrowing one of her family’s, the applicant decided to seek legal advice from Mr Peter Ward of Galbally & O’Bryan, the solicitors who had acted for her in the criminal proceeding. By mid-February 2011 the applicant had given instructions to seek to appeal the PPO.
I do not consider that the reasons proffered by the applicant provide an adequate explanation for the considerable delay in seeking to appeal the PPO. The applicant was made aware, on at least three separate occasions by an officer of Assets Confiscation Operations, of the existence, operation and force of the PPO. In particular, the applicant was made aware that the PPO would have an enduring operation. In those circumstances, it must have been clear to the applicant that, once she was discharged from her bankruptcy, it would be necessary for her to discharge the obligation she was under to pay the sum specified by Judge Nixon after she had been convicted of what was a protracted course of dishonesty. Even if one assumed in the applicant’s favour that the delay from the giving of instructions, in mid-February 2011, to the filing of the summons two months later, was due to her solicitors’ conduct and ought not be attributed to her own, the pre-existing delay, while on notice, of at least two years is too lengthy to be adequately explained in the manner relied upon. Even if one considers as a significant date the date on which the home detention began (2 May 2010), it is noteworthy that the best part of a year expired before the applicant contacted her solicitors.
With respect to a general assessment of the prospects of success, the applicant submitted that Judge Nixon failed to take into account whether it was inappropriate to make the PPO and that he should have declined to make the PPO in circumstances where the applicant was bankrupt; where the applicant was to be sentenced to a substantial period of imprisonment; where the amount of the PPO was to be very large; and where there was no evidence that the applicant would be able, in the reasonably foreseeable future, to satisfy the PPO.
Assuming in the applicant’s favour that these were relevant considerations that his Honour was obliged to take into account, it is clear that Judge Nixon was aware that the applicant was bankrupt for he said so in his reasons.[2] He must have also been well aware that the sentence he had imposed was substantial, that the amount of the PPO was significant, and that, as the applicant had been declared bankrupt, she was unlikely to be able to satisfy the PPO in the foreseeable future. I do not consider that there is sufficient doubt about the determination Judge Nixon made to warrant an extension of time to bring an appeal. In particular, in my opinion, the fact of the applicant’s bankruptcy does not suggest that the PPO was futile or that Judge Nixon should have seen it as such. Rather, and this must have been apparent to Judge Nixon, the enduring nature of the PPO means that at some later time the applicant’s bankruptcy was likely to be discharged and at that point she would gradually arrive at a position where she could begin to fulfil her obligation to satisfy the PPO. Indeed, it would appear to be the case that it is at just this point in time, when the applicant might become capable of considering how to fulfil her obligation to pay the PPO, that she has instead chosen to seek to defeat it. I note that there were no submissions made before his Honour that it would be futile to make the PPO, in light of the bankruptcy or otherwise.
[2]R v Tran Vo (Unreported, County Court of Victoria, Judge Nixon, 5 September 2008) [20].
Moreover, it has often been observed in the context of applications for an extension of time that[3]
the longer the time which elapses since the expiration of the statutory period … the more exceptional will the circumstances put before the Court have to be.
[3]R v O’Keefe [1979] VR 1, 5 (McInerney, Menhennitt, and McGarvie JJ).
In my opinion, the circumstances of this case fall below that which would warrant an extension of time given the period of delay.
I would refuse the application for an extension of time in which to bring an appeal.
ALMOND AJA:
I agree.
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