Pinkerton v Broom
[2015] WASC 308
•19 AUGUST 2015
PINKERTON -v- BROOM [2015] WASC 308
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 308 | |
| Case No: | SJA:1039/2015 | 6 AUGUST 2015 | |
| Coram: | ALLANSON J | 19/08/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted in part Leave to appeal granted in part Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | RYAN VINCENT PINKERTON RUSSEL YVES BROOM STEPHEN GERRARD COELHO |
Catchwords: | Criminal law Appeal against reparation orders Extension of time Whether evidence to support compensation order Miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 10, s 12, s 12(3) Criminal Code (WA), s 409 Motor Vehicle Dealers Act 1973 (WA), s 45(1)(a) Sentencing Act 1995 (WA), pt 16, s 110(6), s 112, s 114, s 115(1), s 115(2), s 117, s 117(2), s 119, s 120(1) |
Case References: | EXF v The State of Western Australia [2015] WASCA 118 Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 Wimbridge v The State of Western Australia [2009] WASCA 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RUSSEL YVES BROOM
First Respondent
STEPHEN GERRARD COELHO
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G BAYLY
File No : PE 84343 of 2014, PE 92861 of 2014, PE 92862 of 2014, PE 92866 of 2014, PE 92869 of 2014, PE 92873 of 2014, PE 92875 of 2014
Catchwords:
Criminal law - Appeal against reparation orders - Extension of time - Whether evidence to support compensation order - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 10, s 12, s 12(3)
Criminal Code (WA), s 409
Motor Vehicle Dealers Act 1973 (WA), s 45(1)(a)
Sentencing Act 1995 (WA), pt 16, s 110(6), s 112, s 114, s 115(1), s 115(2), s 117, s 117(2), s 119, s 120(1)
Result:
Extension of time granted in part
Leave to appeal granted in part
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Ms S E Wisbey
Second Respondent : Ms S E Wisbey
Solicitors:
Appellant : In person
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
EXF v The State of Western Australia [2015] WASCA 118
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Wimbridge v The State of Western Australia [2009] WASCA 196
1 ALLANSON J: Ryan Vincent Pinkerton was charged on prosecution notices dated 28 May 2014 and 16 July 2014 with 21 offences. Seven of the charges were complaints under s 409 of the Criminal Code (WA) alleging that he gained a benefit by fraudulent means with intent to defraud.
2 Mr Pinkerton pleaded guilty to those fraud offences, as well as the other offences alleged against him. On 7 November 2014 he was sentenced in the Perth Magistrates Court. For the fraud offences he was sentenced to imprisonment. He was also ordered to pay reparation to each of the victims.
3 Reparation orders are provided for in pt 16 of the Sentencing Act 1995 (WA). A reparation order is not part of the sentence imposed on an offender, but an offender may appeal against a reparation order as if it were part of the sentence imposed: Sentencing Act s 110(6). In this appeal, Mr Pinkerton challenges the amount of reparation that he was ordered to pay.
The offences
4 There were common features to each of the seven fraud offences. Mr Pinkerton purchased used vehicles, sometimes registering them in the name of another person. He sold the vehicles to members of the public, falsely representing the condition or service history of each vehicle. Very briefly, the facts of the fraud on each prosecution notice are as follows:
(1) PE 84343/14 - Mr Pinkerton sold a vehicle for $6,000. He had created a false service history, using counterfeit service books and service stamps. The vehicle was sold with an odometer reading of approximately 177,000 km when the correct odometer reading should have been 502,000 km.
(2) PE 92861/14 - Mr Pinkerton sold a vehicle for $5,200. The odometer had been wound back from approximately 435,000 km to approximately 125,000 km.
(3) PE 92862/14 - Mr Pinkerton sold a vehicle for $3,500. The odometer had been wound back from approximately 311,000 km to 192,000 km.
(4) PE 92866/14 - Mr Pinkerton sold a vehicle for $3,500. The odometer reading had been wound back from between 90 and 100,000 km to approximately 63,000 km.
(5) PE 92869/14 - Mr Pinkerton sold a vehicle for $6,400. He showed the purchaser a counterfeit service book and false service history.
(6) PE 92873/14 - Mr Pinkerton sold a vehicle for $9,000. The odometer reading had been wound back from approximately 448,905 km to approximately 170,000 km.
(7) PE 92875/14 - Mr Pinkerton sold a vehicle for $6,500. The odometer had been wound back from 360,000 km to 185,000 km.
5 In each case, as part of the statement of material facts, the prosecutor stated that, had the victim known the true mileage and circumstances, he or she would not have purchased the vehicle. In two cases, the material facts included that, as a result of the true condition of the vehicle, the victim had incurred costs to repair unforeseen mechanical problems.
The proceedings before the magistrate
6 Mr Pinkerton was represented on his plea. Counsel on behalf of Mr Pinkerton advised the court that the facts were accepted. In the course of the statement of material facts, the magistrate asked the prosecutor, 'if there is any restitution sought can you tell me as we go through'. The prosecutor was unable to assist. The transcript of the hearing shows that he advised the court, 'they ask for restitution but they haven't at this point made comment as to how much they want the restitution for, which makes it a little bit difficult'.
7 Later, the prosecutor requested forfeiture of $6,000 in relation to PE 84343/14. His Honour responded:
HIS HONOUR: Well, okay. We will get onto forfeiture in a minute, but anyway - so he - you've got the money, as in the police have got the $6,000? You've asked for restitution - you're asking
PROSECUTOR: Well it's just a 'request record for repayment of costs $6,000 to [the victim]'. So I'm not sure.
HIS HONOUR: Okay. But as I read the facts the police got [the victim] on the way out, and then what happened to the $6,000?
PROSECUTOR: Unfortunately, your Honour, I can't assist you on that because the brief just indicates order for repayment of costs of $6,000. I'm not sure whether they seized the money or not.
HIS HONOUR: Well, just going - sorry, that's the first time you've asked for restitution. So is that the first restitution you're asking for?
PROSECUTOR: That's the first time - well, they've asked for restitution on the briefs, your Honour, but they haven't put in, in the brief, exactly what they want us to ask for. So I'm not in a position to say whether it's the full amount of the purchase price of the vehicle
HIS HONOUR: Well, why wouldn't it be?
PROSECUTOR: Well, I would say that will be the starting point, but whether there's any other on top of that for repairs, or whatnot, I'm really - because I'm not sure. So at this stage all I would be asking for is the - is a repayment of the selling price of the vehicle for each case.
HIS HONOUR: For each case - or the amount that's contained in the
PROSECUTOR: In the prosecution notice your Honour.
8 Mr Pinkerton was represented and his counsel made a plea in mitigation on his behalf. The plea in mitigation was directed solely to the question of penalty. Counsel said nothing regarding reparation orders. The magistrate did not raise the question of compensation.
9 In his sentencing remarks, his Honour said at one stage:
And perhaps, Sergeant, you can correct me if there's something that's not appropriate in relation to the restitution.
10 His Honour then went through each of the fraud charges, imposing a penalty of imprisonment and stating a restitution sum, in each case being the amount that had been admitted as the benefit obtained by sale of the vehicle.
The notice of appeal
11 Mr Pinkerton was imprisoned for 10 months with eligibility for parole, which meant his earliest eligibility date for release was after serving a term of five months. On 30 April 2015 he filed an appeal notice together with an affidavit in support. The appeal was just short of five months out of time. In effect, Mr Pinkerton gave two reasons for requiring an extension of time:
(1) Mr Pinkerton was told by his lawyer that the compensation amounts were a civil matter and that should the victims wish to pursue them, he could challenge the amount of compensation ordered;
(2) He was unable to access appropriate resources while in Wooroloo Prison Farm to prepare an appeal.
12 There are two grounds of appeal in the notice:
1. Victims are being overcompensated; The compensation amounts are for the alleged purchase price of the vehicles, and the victims are also keeping said vehicles.
2. Purchase price of vehicles in question is inaccurate - vehicle transfer forms from Dept of Transport can confirm.
A proposed appeal against conviction
13 In his affidavit in support of the application, Mr Pinkerton also raised a potential ground of appeal against conviction. In effect, he said that the charge was inappropriate as the same behaviour could appropriately have been dealt with under s 45(1)(a) of the Motor Vehicle Dealers Act 1973 (WA), which specifically deals with altering the odometer on a vehicle. On a charge under that legislation he would have been liable to only a financial penalty. At the hearing of the appeal he confirmed that he wished to pursue that ground.
14 There are several difficulties with this proposed ground. First, s 45(1)(a) of the Motor Vehicle Dealers Act penalises the conduct of altering or conniving in the alteration of the reading of an odometer with intent to deceive. It is not an element of that offence that a fraud is committed and a benefit obtained. The offences with which he was charged may more appropriately reflect the criminal conduct. Second, the conduct which he admitted in his plea, and he did not resile on the hearing of the appeal from those admissions, clearly amounts to the offence with which he was charged. Any proposed appeal would be against a conviction following a plea of guilty, and would require Mr Pinkerton to show that there had been a miscarriage of justice as a result of that conviction. In the circumstances he could not establish such a miscarriage. It would be futile to add the proposed ground, and I did not permit an amendment to the notice of appeal.
15 The appeal, or rather the application for leave and an extension of time, are accordingly directed solely to the reparation order made in relation to each of the fraud offences.
The appeal against the reparation orders
Ground 2
16 The proposed ground 2 is, in my opinion, untenable. Mr Pinkerton provided some documentary evidence, which the respondent did not object to my receiving. It showed that for three of the vehicles, the selling price listed on the transfer form when the vehicle was transferred to the victim of the fraud was less than the amount that Mr Pinkerton was charged with receiving. There may be an explanation for why the transfer form submitted on the registration of the vehicle differs from the amount which was actually received. I do not need to decide that. Mr Pinkerton admitted to receiving the amounts claimed, both by his plea of guilty, and by his counsel accepting the material facts read by the prosecution. In these circumstances, I am not satisfied that there would be a miscarriage of justice in acting on the amount that Mr Pinkerton admitted that he received, if that were indeed the proper measure of compensation in a reparation order. I will not grant leave to appeal with regard to ground 2.
Ground 1
17 Ground 1 questions whether the victims are being overcompensated by receiving the full price paid when the victim has also retained the car.
18 Section 112 of the Sentencing Act sets out the evidence on which the court may act in deciding whether to make a reparation order, and if so the terms of the order. By s 114, in deciding matters in connection with the making of a reparation order, the standard of proof is on the balance of probabilities.
19 The making of a reparation order does not preclude civil proceedings being taken: s 115(1). A court assessing damages or compensation in civil proceedings is to make that assessment without regard to the compensation set under the compensation order, but the person entitled to an award may only recover the amount equal to the amount (if any) by which the award exceeds the compensation ordered to be paid under the order: s 115(2).
20 There are two types of reparation order - a compensation order and a restitution order. Part 16 div 2 of the Sentencing Act deals with a compensation order.
21 A court may also make a restitution order for an offence which involves the misappropriation of property if satisfied that the offender or a third party is in possession of the property: s 120(1). I doubt that these offences could properly be characterised as offences of 'misappropriation of property'. It is not necessary to decide that question. On what the prosecutor told the magistrate, there was no basis for a finding that Mr Pinkerton was, at the time of sentencing, in possession of an amount of money received in the last of the fraud offences with which he was charged.
22 Accordingly, the seven reparation orders should be regarded as compensation orders. By s 117(2), a court may order that the offender must pay an amount of money set by the court as compensation to the victim of an offence for;
(a) the loss of, or damage to, the victim's property; and
(b) any expense reasonably incurred by the victim,
as a direct or indirect result of the commission of the offence.
23 The question for the learned magistrate in deciding the terms of each order was the proper amount of compensation for loss of the victim's property and any expense reasonably incurred by the victim.
24 When an asset has been acquired as the result of a deceit, the ordinary measure of damage to the defrauded party will be the difference between the price paid for the asset, and its true value at the time of acquisition: see, for example, Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 220. There may be cases where the whole of the purchase price of an item, purchased in a fraudulently induced transaction, is the proper measure of loss. But generally, the measure of loss in the circumstances of this case would be the difference between the amount paid for each vehicle and its value at the time. The Sentencing Act also permits recovery of expenses reasonably incurred by the victim. While further expenses were alleged, no amount was proved.
25 The only evidence upon which the magistrate acted was the admitted benefit received by Mr Pinkerton in each case. It may be that a vehicle which has had its odometer wound back in the manner and to the extent carried out by Mr Pinkerton is of no value. But it is a question for evidence. There was no evidence to that effect, and I would not be prepared to assume that to be the case.
26 It is open to a magistrate under s 117 to make an order which compensates only for that loss which has been proved - leaving the victim to pursue any further losses in civil proceedings. Section 117(2) does not authorise the making of an order which is not compensation for proved loss. In the absence of evidence of what loss was actually suffered, the section does not authorise an order based upon the amount received by the offender, rather than the loss suffered by the victim.
27 Mr Pinkerton has established an error of law in the making of each order.
Extension of time
28 The principles to be applied in determining an application to extend time in which to file a notice of appeal have been recently affirmed in EXF v The State of Western Australia [2015] WASCA 118 [5] - [8] (Hall J, Martin CJ and Buss JA agreeing). First, where there has been a lengthy delay, the court requires that exceptional circumstances be established, unless it can be shown there will be a miscarriage of justice if an extension is not granted. Second, it is necessary to show more than that the applicant has an appeal ground that will be successful. Third, there are generally five factors to be considered, although they are not intended to be an exhaustive statement of the relevant considerations: the nature and extent of the delay; the reasons for the delay; the proposed grounds of appeal and their merit; the prejudice to the applicant if an extension of time is not granted; the prejudice (if any) to the respondent if an extension of time is granted (see Wimbridge v The State of Western Australia [2009] WASCA 196 [45]).
29 On the two reasons given by Mr Pinkerton for the requested extension there is no question of exceptional circumstances.
30 There is, in my opinion, an error of law which gives rise to a miscarriage. The basis on which the magistrate assessed the compensation was not supported by any evidence. If it was based solely on the admitted benefit obtained by each fraud it was not, in my opinion, the proper basis for the assessment of the victim's loss. While Mr Pinkerton was represented, the magistrate did not ask any questions of defence counsel regarding the proposed compensation orders.
31 While the reasons for delay are not compelling, there is a substantial potential prejudice to Mr Pinkerton. With one exception; there is no apparent prejudice to any other person from the delay.
32 The exception is the order made on prosecution notice PE 92875/14, where the victim has proceeded to enforce the order. I was informed from the bar table, without dispute, that no enforcement action has yet been taken on any of the other six orders.
33 Under s 119 of the Sentencing Act, if the amount payable under a compensation order is not paid within 28 days after the date of the order, the person in whose favour the order is made may enforce it by lodging it in a court of competent jurisdiction. When lodged, the order 'is to be taken to be a judgment of the court and may be enforced accordingly'. The period of 28 days is also the period within which an appeal is required to be instituted under the Criminal Appeals Act 2004 (WA) s 10. By s 12 of the Criminal Appeals Act, at any time after an appeal is commenced, the Supreme Court may make any order it thinks fit that suspends until the appeal is concluded any order made by the court of summary jurisdiction as a result of the decision. An order may be made before or after the court decides whether or not to give leave to appeal: s 12(3).
34 Mr Pinkerton may have prevented the enforcement of the compensation order in PE 92875/14 by acting within the time limited by the Criminal Appeals Act. His failure to do so has substantially altered the legal landscape. In effect, he now needs to set aside an order of the court in which the compensation order has been lodged, and to suspend or prevent enforcement of the judgment. That militates against an extension of time to appeal the decision to award compensation on that particular prosecution notice.
35 The same issue does not arise with regard to the other six orders. None of the parties will be deprived of their right to compensation by allowing the appeal. Mr Pinkerton has admitted fraud. The victims of that fraud may pursue compensation either by civil proceedings or, should I remit the matter to the Magistrates Court, by orders made under the Sentencing Act upon evidence being provided about loss.
Conclusion
36 In the course of the hearing I made orders amending the name of the respondent parties to the appeal.
37 I will grant an extension of time to appeal the decision of the magistrate for all but PE 92875/14, where I dismiss the application to extend time.
38 I refuse leave to appeal on ground 2. For those matters where I have extended time, I grant leave on ground 1 and allow the appeal to the extent of setting aside the reparation order made on each prosecution notice.
39 I will hear the parties regarding the orders that flow from allowing ground 1, and whether it is proposed to return the matter to a magistrate in the criminal jurisdiction to reconsider compensation.
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