R v El-Kotob

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 37 of 2002

THE QUEEN
v.
FIRAS EL-KOTOB
FIRAS EL-KOTOB	No. 38 of 2002

THE QUEEN

v.

ZIAD TAREK HIJAZI

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JUDGES:	CALLAWAY and VINCENT, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2002
DATE OF JUDGMENT:	26 July 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 109

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Criminal law – Conspiracy to cheat and defraud, obtaining property by deception, making a false document, having control of an implement for making a false document and having control of a false document – Negotiated presentment – Pleas of guilty – Convictions recorded and sentences of imprisonment imposed on all counts – Applications for extension of time within which to seek leave to appeal against conviction – Appeals against sentence - Whether double punishment – R. v. Liang & Li (1995) 82 A.Crim.R. 39 – Manifest excess – Parity – Interpretation of Legislation Act 1984, s.51.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Appellant El-Kotob

For the Appellant Hijazi

Mr J.D. McArdle, Q.C.

Mr P.F. Tehan, Q.C.

Mr C.B. Boyce

K. Robertson, Solicitor for Public Prosecutions

Balot Reilly & Associates

CALLAWAY, J.A.:

I have had the very considerable advantage of reading in draft the reasons for judgment prepared by the other members of the Court. Those reasons show that the only real issue in this case is double punishment.

The appellant[1] El-Kotob was convicted on one count of conspiracy to cheat and defraud (count 1) and sentenced on that count to three years' imprisonment. He was also convicted on one count of obtaining property by deception (count 2), one count of making a false document (count 3) and one count of having control of an implement for making a false document (count 4). Those convictions were themselves part of the punishment imposed.[2] In addition he was sentenced to six months' imprisonment on count 2 and 12 months' imprisonment on each of counts 3 and 4. There being no order for cumulation, that resulted in a total effective sentence of three years' imprisonment, in respect of which the learned judge fixed a non-parole period of 12 months.
[1]Like the other members of the Court, I adopt the convenient course of referring to El-Kotob and Hijazi as appellants, even in relation to their applications for an extension of time within which to seek leave to appeal against conviction.
[2]R. v. Sessions [1998] 2 V.R. 304 at 313.

The appellant Hijazi was convicted on one count of conspiracy to cheat and defraud (count 1) and sentenced on that count to two years' imprisonment. He was also convicted on one count of obtaining property by deception (count 2) and one count of having control of a false document (count 5). As in the case of El-Kotob, those convictions formed part of the punishment. In addition he was sentenced to six months' imprisonment on each of counts 2 and 5. There being no order for cumulation, the total effective sentence in his case was two years' imprisonment, 18 months of which were suspended for an operational period of three years.

It should be said at once that, especially when it is recalled that the appellants had pleaded guilty to a negotiated presentment, there is nothing on the face of the sentences that is unusual. The separate convictions recorded and concurrent terms

of imprisonment imposed for the conspiracy to cheat and defraud and for what I shall call “the substantive offences” resemble separate convictions recorded and concurrent terms of imprisonment imposed for a burglary and for the theft, assault or damage with a view to which the entry was effected.[3] Such sentences are not uncommon and, so long as the terms of imprisonment are appropriate, are not generally perceived as giving rise to double punishment.[4]

[3]Crimes Act 1958, s.76.

[4]That has been so, in relation to the recording of separate convictions, at least since R. v. Newman and Turnbull [1997] 1 V.R. 146. Whether concurrency betokens error is a question of fact, for the cautiously expressed observation of McHugh, Hayne and Callinan, JJ. in Pearce v. R. (1998) 194 C.L.R. 610 at [49] third sentence does not mean that a measure of cumulation is mandatory whenever there are differences in the conduct the subject of two or more counts.

In R. v. Henderson[5], for example, the applicant pleaded not guilty to one count of burglary and one count of theft. The jury returned a verdict of guilty on each count and separate convictions were recorded. In addition he was sentenced to two years' imprisonment on each count. It was ordered that three months of the sentence imposed for burglary be served cumulatively upon the sentence imposed for theft, making a total effective sentence of two years and three months' imprisonment. A similar argument to that advanced on behalf of the present appellants, in the context of conspiracy, was advanced in that case[6] and rejected. Batt, J.A., with whom Winneke, P. and Brooking, J.A. agreed, said[7]:

“One may accept that the conduct here constituted a single criminal enterprise, but there is, in my view, a fallacy in the contention as to double punishment, in that there is a logical glide from ‘single criminal enterprise’ to ‘single crime’. For, as Mr. Ryan demonstrated in his outline, the enterprise had two components, burglary and theft, just as there are two components in the single enterprise in which a would-be armed robber steals a getaway car with the sole object of using it in the robbery, which he then commits. A separate conviction and a separate sentence are called for with such enterprises. Here, the burglary, while admittedly preparatory to the theft, involved a violation of the rights of the owner or occupier of the premises separate from the violation of the rights of the owner of the goods which the theft involved. Indeed, as the President pointed out during argument, there could in a given case be different victims of the two crimes. Pearce and Sessions do not, in my view, assist the applicant.
...
The reasons why the appellant in Pearce was held to have been doubly punished for the same act were that the single act of inflicting grievous bodily harm was an element of each of the offences in question there and that the identity of the terms of imprisonment imposed for the two offences and their concurrency enabled the High Court to discern that they were imposed to punish that single act. Here, there is not as a common element in the offences an act which both the sentences imposed could be said to punish. The direction for cumulation puts that beyond argument. Mr. Priest informed the court that ground 4 was modelled on Sessions, but that case is clearly distinguishable. For there, as appears from 313 and 315, the offender’s conduct could not be divided into parts and distributed between the two offences in question. The act for which he was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2. That simply is not so here. Indeed, the burglary was complete before the theft occurred.”

In the next paragraph his Honour made clear that he rejected counsel’s argument whether it was put in terms of the common law or by reference to s.51 of the Interpretation of Legislation Act 1984.

[5][1999] 1 V.R. 830.

[6]Counsel referred to the recording of separate convictions as well as the imposition of separate sentences and, as will appear, relied on both R. v. Sessions and Pearce v. R.: see [1999] 1 V.R. 830 at [17] and [19].

[7]At [21].

Some of what Batt, J.A. said is not applicable to the present case. The passage I have omitted is to the effect that it was justified, if not required, to charge both burglary and theft. It is by no means clear that this presentment would have been appropriate to a contested trial.[8] There was no direction for cumulation.[9] Moreover, I bear firmly in mind that we are concerned with conspiracy to cheat and defraud, and not with burglary, and that the substantive offences were among the overt acts of the conspiracy and themselves said to be of a “representative” or “rolled up” character.
[8]Reasons of Vincent, J.A. at [53].
[9]See, however, fn. 4 above.

Nevertheless, in my opinion, similar reasoning to that in R. v. Henderson shows that there was no double punishment in the recording of separate convictions

for the substantive offences. They were distinct offences with different elements. Whatever may be said of the terms of imprisonment imposed, a matter to which I shall turn later, the convictions were for separate violations of the community’s right to peace and order. That is particularly true of count 2, where the focus changed from the danger posed by an agreement to implement a fraudulent plan to the harm done to a particular victim, but there is sufficient difference between count 1 and counts 3, 4 and 5 at least to justify separate convictions.

I do not understand R. v. Hoar[10] to stand in the way of that conclusion. That case was not concerned with a conspiracy to cheat and defraud but with a conspiracy to commit a substantive offence and the overt acts that were sought to be punished again had been fully taken into account in the sentence that had already been passed. It is true that Gibbs, C.J., Mason, Aickin and Brennan, JJ. said[11] that further prosecutions would seek punishment “for the same acts” and that a person should not be twice punished for what is “substantially the same act”, but they went on to explain that the vice is duplication of penalty. In my opinion, there was no duplication of penalty in the recording of separate convictions in this case. Moreover their Honours approved a passage from the judgment of Lord Denman, C.J. in R. v. Button[12], which assumes separate convictions for conspiracy and larceny and requires only an apportionment of the sentence.
[10](1981) 148 C.L.R. 32.
[11]At 38.
[12](1848) 11 Q.B. 929 at 947-948.

For these reasons, and for those given by O’Bryan, A.J.A., I agree that each application for an extension of time within which to seek leave to appeal against conviction should be refused.

The other way in which double punishment arises for consideration is in the imposition of separate sentences of imprisonment, albeit concurrent, for the substantive offences. That is in large measure a matter of impression. It is not surprising, having regard to the negotiation of the presentment and the way in

which the plea was conducted, that nothing was said explicitly in the sentencing remarks about the sentences imposed on the individual counts, but it is apparent that the judge took a serious view of the conspiracy to cheat and defraud. That enabled him, in my opinion, to arrive at sentences of three years' and two years’ imprisonment without twice punishing the appellants for the specific conduct the subject of the substantive counts.

His Honour’s view of the conspiracy appears from the passage set out in the reasons of Vincent, J.A. at [27]. The Summary of Events shows that the appellants, Harouk, Arabi and Hassan attended many retail outlets on 11th April 2001 and, at 12 of them, made no fewer than 35 purchases or attempted purchases. Count 2, even if it is said to be representative, refers to the first purchase only. The offences the subject of counts 3, 4 and 5 are more closely akin to the conspiracy count, but I am not persuaded that the judge punished El-Kotob for making a false document or having control of an implement for making a false document, or punished Hijazi for having control of a false document, when he imposed the sentences he did for the conspiracy. The sentences for the substantive offences were appropriate and, as I said at the beginning of these reasons, the disposition was prima facie in accordance with sentencing practice.[13]
[13]Compare Sentencing Act 1991, s.5(2)(b).

For these reasons and for those given by Vincent, J.A., I, too, would dismiss the appeals against sentence.

VINCENT, J.A.:

At approximately 3.15 p.m., on Tuesday 10 April 2001, the appellant Firas El‑Kotob (“El-Kotob”) purchased, at a shopping centre in Bankstown New South Wales, a voltage converter to be connected to the power source of a motor vehicle.

Approximately 45 minutes later, and in the company of the appellant Ziad Hijazi (“Hijazi”), he attended at a car rental agency and hired a motor vehicle which was to be returned on the following Friday. He then drove that car in the company of Hijazi and another co-offender Ali Arabi (“Arabi”) to Melbourne, where they met up with three further co-offenders Walid Harouk (“Harouk”), Mohamed Rasheed (“Rasheed”) and Frederick Hassan (“Hassan”). It was planned that on the following day all members of the group would participate in the obtaining of property, principally alcohol and cigarettes, from business establishments in the Melbourne area.

Of importance in the achievement of their objective was their possession of equipment, which could be operated by El-Kotob in the hire car, enabling him to alter the magnetic information recorded on bankcards. The group had several bankcards that had been reported as having been either lost or stolen as well as bankcards issued to members of the group and one counterfeit bankcard. They also had in their possession the voltage converter and a laptop computer which contained 272 bank account numbers relating to the accounts of other persons, in addition to two handwritten lists containing 128 such bank account numbers and a bankcard reader and encoding device, all of which the appellants had brought with them. It was intended that account numbers taken from either the computer or the handwritten lists would be encoded on to the bankcards which would then be presented to retailers as genuine and used to purchase property that would subsequently be exchanged with a criminal associate for cash.

Pursuant to this agreement, at approximately noon on 11 April, Rasheed, Harouk and Hijazi attended at premises known as Dan Murphy’s Liquor Store in Mt Alexander Road, Ascot Vale. Harouk and Hijazi acted as “lookouts” whilst Rasheed attempted to purchase $2,666.40 worth of alcohol products, using altered bankcards. Alert staff at the store became suspicious and the three men hurriedly left the area before the transaction was completed.

The police were notified and, a short time later, Rasheed was located nearby in the rear of a taxi and arrested. A search of his home during the course of the day revealed the presence of pieces of paper on which were written three American Express account numbers pertaining to other persons.

Harouk and Hijazi, who had made good their escape, met up with El-Kotob, Arabi and Hassan. They then attended at retail outlets in the northern and north-western suburbs of Melbourne. The premises included supermarkets, supermarket bottle shops, hotel bottle shops and a K-Mart store.

At each location, Harouk, Arabi and Hassan purchased or attempted to purchase goods, using bankcards that had been altered through the employment of the encoder and laptop computer. Generally, El-Kotob remained in the hire car. He acted as “lookout” and performed the role of encoding bank account numbers on to cards which were then issued to his associates in order that they could make the purchases. Hijazi also operated as a “lookout”. If a re-encoded card was declined, the offender who had presented it would return to El-Kotob who would either re-encode that card with another bank account number or re-encode a different bankcard. This would be given to the proposed purchaser who would then use it to attempt to purchase goods.

Employing this technique, the five men attended many retail outlets during the day and at twelve of them made purchases of goods, the total value of which was $8,521.60. The value of other goods which the group attempted to purchase at other establishments was assessed at $2,800.54.

At about 5 p.m., they went to the Melbourne Airport where they met an associate named Ahmed Amouri. At about 8.46 p.m. the group, now containing Amouri, went to the home of Harouk where they remained for a short time and left some of the fraudulently purchased property

The appellants and Arabi were intercepted by the police at about 11.35 p.m. on the same evening. El-Kotob was found to have had in his possession $12,485 in cash that had been obtained from the disposal of the fraudulently purchased goods, together with the handwritten lists of bank account numbers to which reference has been made. He also had 20 bankcards and other cards with magnetic strips. Fourteen of the cards were found to have bank account numbers pertaining to persons other than himself encoded on their magnetic strips. Some of the bank account numbers were identified as having been used in the various transactions. One of the cards was found to be counterfeit. Hijazi had $1,450 in cash that had also been obtained from the sale of the fraudulently purchased goods. He too had a quantity of bankcards and other cards issued in his name.

A search of an hotel room that had been booked by El‑Kotob and was occupied by Hijazi and himself located the laptop computer and bankcard encoder used, as well as purchase receipts relating to two of the transactions earlier conducted. Pieces of paper containing bank account numbers relating to accounts held by persons other than the co-offenders were also found.

In the hire car, the police located a sound system that had been purchased during the day, some packets of cigarettes that had been fraudulently obtained and a receipt relating to one of the transactions conducted. The voltage converter and its packaging were also found together with a purchase receipt bearing El-Kotob’s signature relating to this item.

Harouk and Hassan were arrested on Wednesday, 25 April 2001.

Amouri was interviewed but no charges were laid against him.

It is, I consider, apparent from this brief and rather bland description that the appellants travelled from Sydney with the express intention of embarking upon what could be fairly described as a well planned and concerted raid upon a large number of retail outlets. As the sentencing judge remarked when addressing the appellant El-Kotob:

“[Y]ou are clearly the principal of a sophisticated attempt at using credit cards to steal property from supermarkets. Fortunately your offending behaviour was detected early and a stop was put to it. Nevertheless the depositions do disclose that quite a degree of planning and sophistication was used in setting up the scheme. Had you been successful you would have wreaked havoc for a significant period of time in supermarkets and similar retail outlets in Victoria and indeed elsewhere. Not only the businesses that you stole from would have suffered the consequences in the short term, but the persons who are the legitimate holders of the cards no doubt would have been left with the anguish of having to justify their positions to a bank or institution that they held their card or that credit card numbers were held with as well as ultimately I suppose the victims in the scheme being the banks who would not only have lost their money but the community’s confidence in the security of credit cards as a means of exchanging moneys.”

Initially the appellants were charged with a number of offences relating to the individual transactions and the matter was set down for a committal mention at the Magistrates’ Court on 4 July 2001. However it was adjourned to 15 August. On that day, the date for a contested committal proceeding was fixed, the respondent being advised that both appellants were prepared to enter into plea negotiations in the interim. These commenced in early November 2001 and agreement was reached under which each pleaded guilty to one count of conspiracy to cheat and defraud (count 1) and to other counts relating to substantive offences. For reasons which will become apparent later, the details of the presentment in so far as it relates to them are set out below:

“Count 1: The Director of Public Prosecutions presents that Firas El-Kotob, Ziad Tarek Hijazi and Ali Arabi at Melbourne in the said State between the 10th day of April 2001 and the 11th day of April 2001 conspired together with Frederick Hassan and Mohammed Rasheed to cheat and defraud diverse financial institutions.
Count 2: And the Director of Public Prosecutions further presents that Firas El-Kotob and Ziad Tarek Hijazi at Preston in the said State on the 11th day of April 2001 dishonestly obtained from the Olympic Hotel alcohol valued at $498.95 with the intention of permanently depriving the said Olympic Hotel of the said alcohol by deception namely by falsely representing that the magnetic encoding of the number 5353 1629 7294 7683 on the credit card produced for payment was authorised for use.
Count 3: And the Director of Public Prosecutions further presents that Firas El-Kotob at Melbourne in the said State on the 11th day of April 2001 made false documents namely credit cards magnetically encoded with account numbers which are and which he knew to be false with the intention of inducing another namely divers retail outlets to accept them as genuine and by reason of so accepting the said credit cards to do some act to that other person’s prejudice namely to part with property.
Count 4: And the Director of Public Prosecutions further presents that Firas El-Kotob at Melbourne in the said State on the 11th day of April 2001 had in his custody and control a machine or implement namely a card reader and encoder and a notebook computer which are and which he knew to be specially designed or adapted for the making of a false document.
Count 5: And the Director of Public Prosecutions further presents that Ziad Tarek Hijazi at Melbourne in the said State on the 11th day of April 2001 had in his control a false document namely a credit card magnetically encoded with the number 5353 1629 7294 7683 which is and which he knew to be false with the intention of inducing another namely divers retail outlets to accept it as genuine and by reason of so accepting the said credit card to do some act to that other person’s prejudice namely to part with property.

After hearing pleas in mitigation of penalty, the sentencing judge who, I should point out, had already dealt with Harouk and Hassan, on 18 February 2002 imposed sentences upon the appellants as follows:

El-Kotob
count 1          -         three years’ imprisonment
count 2          -          six months’ imprisonment
count 3          -          12 months’ imprisonment
count 4          -          12 months’ imprisonment

There being no order for cumulation this created a total effective sentence of three years, in respect of which his Honour fixed a non-parole period of 12 months.
           Hijazi
count 1          -          two years’ imprisonment
count 2          -          six months’ imprisonment
           count 5          -          six months’ imprisonment
Again, no order for cumulation was made. This created a total effective sentence of two years’ imprisonment, the service of 18 months of which was suspended for an operational period of three years.

Arabi who was sentenced at the same time but who has not sought leave to appeal to this Court, pleaded guilty to one count of conspiracy to cheat and defraud (count 1); one count of obtaining property by deception (count 6); one count of attempting to obtaining property by deception (count 7); and one count of having control of false documents (count 8). This offender, who was the only one who had previously been sentenced for a criminal offence, admitted six prior convictions in 1997 and June 2000. He was sentenced as follows:

Arabi -
count 1-          two years’ imprisonment
count 6-          six months’ imprisonment
count 7-          six months’ imprisonment
count 8-          six months’ imprisonment

There being no order for cumulation, this created a total effective sentence of two years’ imprisonment, the service of 18 months of which was suspended for a period of three years.

His Honour had, on 21 September 2001, sentenced Harouk, who pleaded guilty to a presentment containing eight counts of obtaining property by deception, one count of handling stolen goods, three counts of attempting to obtain property by deception and three counts of having control of false documents. Counts 3 to 15 related to Harouk’s participation in the events currently under consideration while counts 1 and 2 were concerned with quite separate matters. He was sentenced as follows:

Harouk
Count 1            -    one month's imprisonment
Count 2            -    six months' imprisonment
Counts 3 to 15 - obtaining property by deception   (7 counts)      )   Ten month’s
attempting to obtain property by deception            )   imprisonment
  (3 counts)    )   on each count.
having control of false documents (3 counts)   )

The sentence imposed on count 7 was ordered to be served cumulatively on the sentence imposed on count 3. This created a total effective sentence of 20 months' imprisonment, the service of the whole of which was suspended for a period of three years.

Finally, the sentencing judge had, on 25 October 2001, imposed sentence on Hassan, who also pleaded guilty, as follows:

Hassan
Count 1 - conspiracy to cheat and defraud - 12 months’ imprisonment
Counts 2-6- obtaining property by deception - one months’ imprisonment on each.

This created a total effective sentence of 12 months, the service of the whole of which was suspended for a period of two years.

Leave having been granted to do so, the appellants appeal against the sentences imposed upon them. However at the commencement of the hearing, each made an application for an extension of the time within which an application for leave to appeal against conviction could be made.

The Applications for the Extension of Time for Leave to Appeal against Conviction

After some discussion with counsel, the grounds of the proposed applications were expressed as:

“1.The applicant El-Kotob should not have been convicted of the charge of conspiracy to cheat and defraud (count 1), alternatively the applicant should not have been convicted of counts 2, 3 and 4, a conviction having been recorded on count 1, because in the circumstances of this case it amounted to an abuse of the process of the court or was contrary to section 51 of the Interpretation of Legislation Act 1984.
2.The applicant Hijazi should not have been convicted of the charge of conspiracy to cheat and defraud (count 1), alternatively the applicant should not have been convicted of counts 2 and 5, a conviction having been recorded on count 1, because in the circumstances of this case it amounted to an abuse of the process of the court or was contrary to section 51 of the Interpretation of Legislation Act 1984.”

The members of the Court decided that in the circumstances we would hear argument on these applications, which would of necessity involve some consideration of the merits of the applications for leave to appeal, and deal with the matter as appropriate in our judgments.

In support of their applications, counsel for the appellants (as it will be convenient to call them) advanced two basic arguments. First, it was contended that, properly viewed, the case against each of the participants rested upon his involvement as one of a group of persons acting in concert in the commission, on 11 April 2000, of a number of offences of dishonesty. The extent of his criminality and the true character of the conduct in which he engaged could be seen to have been properly reflected in the counts relating to the substantive offences committed. Those counts, it was emphasized were of a “representative” or “rolled up” character[14] and, accordingly, provided an adequate basis for punishment purposes. In those circumstances, the argument proceeded, it was contrary to principle and an abuse of the process of the Court for counts of conspiracy to have been laid, notwithstanding that this had been done with the express agreement of the appellants concerned.
[14]Recognizing that these terms are often loosely employed, they are not interchangeable.

Second, the acts encompassed by the further counts on the presentment in each case constituted, it was said, in law and substance the overt acts relied upon by the prosecution to establish the conspiracy and were almost certainly taken into account by his Honour when sentencing for that offence. In consequence, neither at common law nor by reason of s.51 of the Interpretation of Legislation Act could convictions have been properly recorded against the appellants on both the conspiracy and substantive offence counts.

Reference should be made at this point to the judgments of the members of the High Court in Hoar v. R. where the view was adopted that:

“Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier[15], the addition of a charge of conspiracy in the same indictment ‘will tend to prolong and complicate the trial.’”[16]

[15]Verrier v. D.P.P. [1967] 2 A.C. 195 at 223-224.

[16](1981) 148 C.L.R. 32 at 38 per Gibbs, C.J., Mason, Aiken and Brennan, JJ. Expressing strong agreement with this approach, Murphy, J. in his short judgment in that case emphasized the dangers involved in the inappropriate use of the charge of conspiracy, particularly in cases where the prosecution can be properly confined to a reasonably simple issue that could be disposed of in a relatively short time - at 40-41.

However, their Honours were not only concerned to avoid unnecessary complexity in criminal proceedings and the potential injustice to which it could give rise, but also to encourage the laying of charges that could be seen to reflect directly the actual criminal conduct in which the offender had engaged and to avoid the possibility that the individual might be subjected to double punishment for that conduct. The circumstances in Hoar provide an interesting case study in all these respects. Hoar and a co-offender were involved in large scale illegal fishing in the Northern Territory, taking barramundi during periods and in locations prohibited under the Fisheries Act 1965 (NT). That Act prescribed a maximum penalty of six months' imprisonment for each such offence.[17] It also empowered the Court to order the forfeiture of items of plant used in connection with the commission of the offence.[18] Rather than lay charges for any such offences, it was decided to present the two men on a count of conspiracy and rely upon evidence of these possible commissions as overt acts demonstrating the existence and character of an unlawful compact. Incorrectly believing that the maximum penalty for the commission of the crime of conspiracy was that applicable to the commission of an individual substantive offence under the Act, the sentencing judge imposed a manifestly inadequate sentence in the circumstances.
[17]Sections 13 and 38.
[18]Section 48.

A Crown appeal to the Federal Court was allowed and the sentence was increased, the Court making it clear that in so doing the overt acts undertaken in the implementation of the conspiracy had been taken into account. However, the Court set aside a forfeiture order made in the court below in respect of a number of very valuable items of plant used in the illegal operations, on the basis that forfeiture could only be ordered where there had been an offence under the Act and conspiracy to commit such an offence was not itself one.

The Crown appealed to the High Court against that decision. In the course of the proceeding before that court the Solicitor-General for the Northern Territory informed the judges that a decision had not been made as to whether, in the event that the Crown appeal was unsuccessful, charges in respect of a number of substantive offences under the Fisheries Act would be laid. Not surprisingly, the approach of the prosecution was regarded with considerable disfavour, their Honours indicating that, if the prosecution had been concerned to secure a forfeiture order and had confidence that it could establish the commission of an offence under the Act which would justify the making of one, then it should have proceeded to lay the appropriate substantive charge. Pointing out, in the passage quoted above, that it was generally undesirable to lay a charge of conspiracy where the situation could be appropriately encompassed by substantive charges, it was held that:

“There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy.
...
In the present case, the Crown elected to proceed first on the charge of conspiracy and sought, on appeal as well as at first instance, a sentence appropriate to the gravity of the overt acts of illegal fishing. Such a sentence was imposed on appeal. It would be wrong for a court now to impose further punishment for the acts of illegal fishing in respect of which Hoar has already received a sentence.”[19]

[19]At 38-39.

No member of the High Court in Hoar suggested that substantive charges must always be laid in preference to a charge of conspiracy or that there may not be circumstances in which a presentment could properly contain both a count of conspiracy and counts relating to substantive offences. However, where “a sufficient and effective charge” relating to a substantive offence was available, it was considered to be inappropriate to lay a charge of conspiracy.[20] Although the attributes of such a charge were not identified, it would seem to be reasonably apparent that their Honours contemplated the availability of a charge or charges that properly reflected the real criminality involved in the conduct and enabled, upon conviction, the making of an appropriate punitive response to it.
[20]At 38.

Often criminal activities pursued as a consequence or in the implementation of an unlawful agreement are regarded not only as overt acts demonstrating the commission of the crime of conspiracy but are punished as incidents of it. In those cases the most serious features of the offenders’ conduct may be perceived as being related to the development of the criminal design rather than its implementation. That was the manner in which the Federal Court dealt with the situation in Hoar. The specific statutory offences encompassed by the overt acts almost certainly did not represent the total criminality encompassed by the conspiracy. This situation may be contrasted with that presented in a case where the offenders had engaged in planned bank robberies. The commission of the substantive offence in that case can be seen to possess a much higher degree of criminality of itself. The conspiracy is subsumed by the substantive offence. However, there may well be cases where, in order that the full extent and character of the criminality involved may be properly reflected in both the convictions recorded against the respective participants and any further penalties imposed upon them, a distinction is appropriately made between the conspiracy and the consequent but nevertheless separate substantive offences so that convictions are recorded on both. What must be avoided, as I understand the judgments in Hoar, is not necessarily the joinder of counts but the presentation of the individual before the court on inappropriate counts and the potential for undue complexity with its risks of unfairness.

With respect to the imposition of double punishment where a count of conspiracy and counts relating to substantive offences are contained in a single presentment, it does not appear to me that any problem necessarily arises by reason of s.51 of the Interpretation of Legislation Act 1984[21], provided the distinction between the acts constituting the conspiracy and those undertaken in furtherance of it is properly addressed. The situation would not be one in which punishment would be imposed more than once for the same acts[22] and could be contrasted with that considered by the Court of Appeal in R. v. Sessions[23]. In that case, the accused had pleaded guilty before the County Court to one count of rape and one count of recklessly causing serious injury. Becoming annoyed whilst changing the nappy of an eight-month old female child, he had inserted his index finger into her vagina producing severe internal injuries. Hayne, J.A. with whom Batt, J.A. agreed[24] stated:
[21]“(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.”
[22]I do not intend by this statement to suggest that the difficulties discussed by the High Court in Pearcev.R. (1998) 194 C.L.R. 610 could not be very substantial. See McHugh, Hayne and Callinan, JJ. at 623.
[23][1998] 2 V.R. 304
[24]Eames, A.J.A. delivered a separate judgment in which he expressed broadly similar views.

“It was accepted below, and on the hearing before us, that the applicant inserted his finger into the child’s body only once. That is, it was accepted that there was, in this sense, only a single act by the applicant. The learned sentencing judge said in the course of his sentencing remarks that:
‘It is a fundamental rule that a person must not be punished twice for the one act. In view of the way in which the Director of Public Prosecutions has formulated the charges, I must impose two separate sentences on you, one for rape, and one for recklessly causing serious injury.’

His Honour noted that the maximum sentence that could be imposed on the count of recklessly causing serious injury was six years and eight months. He went on to say:
‘Despite the fact that your conduct occupied only a second or so, it is necessary to identify what act constituted the rape, and what other separate act constituted the reckless causation of serious injury.’

His Honour sentenced the applicant on the basis put forward by the Crown that the rape constituted by the applicant inserting his finger to the slightest extent into the vagina of the child and that ‘the other offence was constituted by your continued forceful penetration’. So to divide the applicant’s single blow to the victim is obviously artificial. There was, as I have said, but a single blow struck.”[25]
...
“Although I did not understand the director to say that Newman[26] required the charging of two counts in this case, I should say at once that I do not consider that if the applicant had been charged only with rape, the sentencing judge could not properly have had regard to all of the consequences that flowed to the victim from that rape. Indeed, had the applicant been presented only on the count of rape, I consider that the sentencing judge would have erred if those consequences were not considered in determining the sentence that should be imposed: see the Sentencing Act 1991 s.5(2)(db). The present case may be contrasted with a case in which the offender rapes the victim, and strikes and injures the victim. If the Crown contends, in the latter case, that the offender is to be punished for the rape and for the assault, separate charges should be preferred: see e.g. R. v. O’Rourke [1997] 1 V.R. 246 esp. at 252-3. Here, however, the injury to the victim was done by the act of penetration constituting the rape. That injury not only may be taken into account in punishing the offender for the rape, the Sentencing Act requires that the sentencing judge take it into account. The problem dealt with in Newman would not arise.”[27]

His Honour, without deciding the question, accepted for the purposes of argument that s.51 of the Interpretation of Legislation Act did not preclude the laying of the separate charges and then directed attention to the question whether in the circumstances the recording of convictions on both constituted double punishment. He decided that it did, for three reasons. First, it was accepted, as mentioned above, that the applicant had performed only one act. Hayne, J.A. considered that to divide a single physical movement into two acts for punishment purposes was artificial and resulted in double punishment. Second, as the physical consequences to the victim had to be taken into account when sentencing for the count of rape, no need existed for the recording of a conviction on the other count to encompass them, the recording of a conviction being itself the imposition of punishment. Third, in the circumstances the laying of separate charges was not required by considerations of the kind discussed in R. v. Newman and Turnbull, where Winneke, P., with whom Hayne, J.A. and Crockett, A.J.A. agreed, stated:
“The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted:”[28]

[25]At 306-307.

[26]R. v. Newman & Turnbull [1997] 1 V.R. 146. Winneke, P., with whom Hayne, J.A. and Crockett, A.J.A. agreed, stated in that case, at 150, that the applicants for leave to appeal against sentence had each pleaded guilty to one count of aggravated burglary and one count of intentional and unlawful damage to property. The sentencing judge had regard to an assault committed in the course of the burglary in respect of which they had not been charged.

[27]At 307-308.

[28]At p.150

The applicants for leave to appeal against sentence in that case had each pleaded guilty to one count of aggravated burglary and one count of intentional and unlawful damage to property. The Court considered that the sentencing judge had fallen into error in taking into account an assault committed in the course of the burglary in respect of which they had not been charged.[29] This situation may be compared with that before the Court in O’Rourke. The victim in that case was a resident medical officer employed in a city hospital. During the early hours of one morning, she decided to take a short break in a lounge situated in what appears to have been at the time a deserted section of the building. Whilst there she was subjected to terrifying and repeated attacks. As the Court of Appeal observed:

“By an objective observer the events no doubt would be described as unfolding over a relatively short period of time. Indeed that submission was ultimately made to the learned judge. To the complainant the events appeared to be unending.”[30]

[29]See also R. v. De Simoni (1981) 147 C.L.R. 383.

[30]At 249 per Winneke, P., Brooking and Callaway, JJ.A.

The respondent was in due course convicted upon his trial on one count of making a threat to kill, two counts of indecent assault, one count of rape and one count of intentionally causing injury. As will be observed, separate charges for the various offences committed were preferred against the offender. However, the sentencing judge treating them as having been committed in the course of a single incident made all sentences concurrent. The Court of Appeal found that he had fallen into error in so doing, stating:

“Serious though the rape may have been, it was but one component of an aggregation of acts which together contributed to the debasement and humiliation of the complainant over a significant period of time during which the respondent was well aware of her resistance and distress. It was in those circumstances quite inappropriate for the learned sentencing judge to regard the threats to kill, both the indecent assaults and the ongoing infliction of injury as being so linked to the act of rape as to warrant the punishment imposed for those offences being made wholly concurrent with the penalty imposed for the rape.
...
Because, in this case, we have come to the view that the learned judge was in error in directing total concurrency, it should not be thought that we are expressing the view that it is an immutable principle of sentencing that, where an offender has been found guilty of committing a series of sexual or violent acts on the same victim during the same episode, he or she is always bound wholly or partially to cumulate the penalties. There is not, in our view, any such principle of sentencing. Each case must depend upon its own facts. There may be, and indeed sometimes are, cases where because of the penalties already imposed the sentencer refrains from directing further cumulation lest there be imposed a crushing sentence or a sentence which offends against the principle of totality. Furthermore there are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency.
...
What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts and whether it should be in whole or in part.”[31]

[31]At 252-253.

A similar approach should be adopted, in my view when considering what charges should be laid in the first place. Regard must also be had to the victims. They have a right to expect that as far as reasonably practicable, the offences committed against them will be recognized in the sentencing process and responsibility for those offences be brought home to the perpetrator. Further, it is important for more than one reason to ensure that upon the completion of a criminal proceeding, there should be no doubt possible concerning the identification of the offences for which the individual has been punished or that serious issues may not arise as to the appropriateness of dealing with the charges that could be properly laid against an offender in this fashion.

As I have earlier pointed out, the appellants before this Court were initially charged with a number of substantive offences. Some time later the prosecution was approached on their behalf with a view to entering into plea negotiations. The presentment in its final form was the agreed product of those negotiations. It is not difficult to see how each side could have regarded the outcome as satisfactory in the respective situations in which they were placed. From the defence perspective, a reasonably lengthy and complex trial involving many separate offences and at which a large number of victims would be called in support of what would ultimately emerge before the jury as a powerful Crown case was avoided. From the point of view of the prosecution, not only would the conduct of such a trial no longer be required, but the court would be able to address the overall criminality of the appellants’ behaviour with the combination of a count of conspiracy and a small number of discrete offences that reflected some, but by no means all, of the consequences of its implementation. I should add that in the particular circumstances, it is highly unlikely that the length or complexity of a trial would have varied significantly according to whether the matter proceeded on the basis of a conspiracy count or the prosecution of substantive offences.

Bearing in mind that background, I regard it as somewhat disturbing that, in the absence of any ground of appeal raising the issue and supporting material, the suggestion was advanced in this Court that the legal representatives of the appellants may not have been acting in their best interests in the course of plea negotiations as a consequence of some conflict of interest arising from their representation of all the offenders involved. When pressed as to how any such problem may have impacted upon the approach adopted or its presence possibly evidenced or suggested in the material before us, the matter was not pursued. It was without substance.

The argument advanced on behalf of both appellants that their respective criminality could be seen to have been encompassed by the counts relating to substantive offences also lacks substance, in my view. Count 2, which I have set out earlier, clearly relates to a single fraudulent transaction. It does not purport to be a “rolled up” count which addresses all of the completed or attempted transactions in which they participated on that day. A sentencing judge would be entitled to regard the fact that the transaction concerned was representative of the general character of a number of like offences effected or attempted as an aggravating circumstance when determining the sentence to be imposed in respect of it. (The seriousness of the individual’s conduct in committing the specific offence can then be assessed within a far more realistic framework.) The judge, however, could not by reference to that framework effectively sentence the appellants for all of the other non charged acts.[32] Nor could he have had regard to the obvious intention of the conspirators to engage in activities which would have “wreaked havoc for a significant period of time in supermarkets and similar retail outlets in Victoria and indeed elsewhere” other than in the assessment of the individual’s culpability in the commission of the specific offence.[33] Apart from the conspiracy, no crime had been committed in respect of these contemplated activities.
[32]R. v. Newman and Turnbull (supra).
[33]See R. v. S.B.L. [1999] 1 V.R. 706; R. v. D.L.M. [1999] 2 V.R. 98.

The position in the case of El-Kotob was varied only to a minor degree by the presence of counts 3 and 4 or, in the case of Hijazi, by the presence of count 5. It is, I consider, beyond doubt that neither the prosecution nor the defence regarded the counts relating to substantive offences as encompassing the total criminality of the appellants. They clearly did not, and it is evident that the presentment was not so approached by the sentencing judge, who, I should point out, was never invited to regard them in this fashion.

In the context of a guilty plea, the courts will approach with a measure of flexibility the form in which charges are set out in a presentment that fairly reflects the admitted criminality of an offender. It is, for example, by no means exceptional for a plea of guilty to be accepted to a “rolled up” count that would otherwise be bad for duplicity or uncertainty. In the situation where a negotiated plea of guilty is made, the dangers arising from complexity, uncertainty, the prolongation of proceedings and potential unfairness to the person charged to which the Presentment Rules are in large measure directed, are considerably less likely to arise. This does not mean that the Court has no role to play in such circumstances. Important principles of the common law of the kind considered in O’Rourke and Newman and Turnbull cannot be put to one side simply because it is regarded as convenient to do so. What is permitted is the modification in some circumstances of the forms and procedures governing conduct of the criminal proceedings in order to simplify the process and facilitate the achievement of a just outcome.

I find nothing objectionable about the course adopted with respect to the form of the presentment in the present matter. There were none of the problematic features present in Hoar and importantly the presentment was the product of plea negotiations entered into by the appellants because it was understandably perceived by them to be of advantage to do so. The assertion could hardly be seriously advanced that as a consequence of the course adopted by the prosecution the appellants “have been exposed to a degree of prejudice to which [they] ought not fairly to have been exposed”[34] or that they had been subject to “unnecessary vexation and harassment”[35] and therefore to an abuse of the Court’s process. Whether or not it would have been appropriate to join a count of conspiracy and separate substantive counts in a single presentment in anticipation of a contested trial in the present case is not a question which this Court need address. Had that course been pursued, the judge dealing with the matter would have been required to decide whether or not severance should be directed, leaving, if severance were ordered, the prosecution to elect upon what basis they then would proceed. These questions would certainly have arisen within a quite different framework in which I consider that, as a practical proposition, the possibility that the presentment would have been made in the form ultimately agreed upon could be excluded.
[34]R. v. GJB [2002] VSCA 54 at 15 per Winneke, P.
[35]Ibid. at 15 per Winneke, P.

Given that the joinder of the counts relating to conspiracy and the commission of substantive offences was not of itself in the circumstances contrary to principle, the question posed in Hoar must still be considered. If the sentencing judge has taken into account the criminal conduct covered by the other counts in his determination of the proper sentences to be imposed upon the appellants for the count of conspiracy then, to record separate convictions, whether or not concurrent sentences were handed down in respect of them, would constitute the imposition of double punishment. After a deal of thought and careful perusal of the transcript and his Honour’s sentencing remarks relating to the appellants and their co-offenders, I consider on the basis of several features that it is likely that this has occurred. Among these are the facts that there was no discussion in the course of the plea hearing concerned with the appellants about the form of the presentment or the manner in which the various counts could be related to each other and the count of conspiracy. His Honour’s sentencing remarks do not deal with these aspects at any point and I observe that without giving any explanation for so doing he made no order for cumulation. In his description of the events upon which the sentences were based, his Honour made no specific reference to those underlying count 2 and referred to the total value of goods obtained. The substantive offences did not call for separate treatment in the particular circumstances and there is nothing save the sentences to indicate that his Honour considered that any was required. I observe in this context that they were not singled out for specific attention in the course of the plea. The offence encompassed by count 2 was simply typical of a number committed by the appellants and was treated as such. All of the other transactions were obviously taken into account in the determination of the sentence to be imposed on the conspiracy count and there is no reason to suppose that the offence in count 2 was excluded. Counts 3, 4 and 5 all relate to activities which were clearly directed to the implementation of the broad conspiracy to which the judge adverted in his sentencing remarks.

The proper approach to be adopted in such circumstances was considered by Hayne, J.A. in Sessions where he pointed out that:

“Whether convictions should have been recorded on both counts is affected, in this case, by a number of considerations.
First, if the basic principle is that a single act or omission should not give rise to multiple punishments, convictions should not be recorded on both counts. (For present purposes it matters not whether that principle is founded in the common law or in the provisions of s. 51 of the Interpretation of Legislation Act.) The Sentencing Act makes plain in s. 7 and elsewhere that recording a conviction after plea or verdict of guilty is part of the punishment meted out to an offender. It is not right to say (as may be suggested by Friedland, op. cit., p. 200) that conviction for more than one offence is not double punishment and will present no difficulty for the offender if those who may later have to consider the prior criminal history of that offender are properly instructed in the significance that is to be attached to the fact of multiple convictions based upon a single act. The fact of conviction is treated by the Sentencing Act as an element of the offender’s punishment.” [36]

[36][1998] 2 V.R. 304 at 312-3. At 323, Eames, A.J.A. stated:

“I respectfully agree with the analysis of Hayne J.A. as to the application of s. 51, and in particular with his conclusion that a conviction amounts to punishment. So much is clear from the terms of the Sentencing Act 1991, in particular s. 7. Even where the disposition of a case, upon a person being found guilty, is the release of an offender without the recording of a conviction (s. 7 (i)), or, upon finding the person guilty, dismissing the charge and releasing the offender (s.7 (j)) those outcomes are still “sentencing orders”, and are part of a regime of punishment.”

The entry of a plea of guilty does not of itself imply an acceptance that a conviction for the offence must be recorded nor does it relieve a sentencing judge of his obligation to sentence according to principle. At this level no question arises as to the effectiveness of the plea of guilty. The judge’s task remains exactly the same. If the judge considers that in accordance with principle separate convictions or the imposition of further penalties are called for, then they should be imposed; if not, that course is not to be adopted.

Conclusion

In my opinion, in the particular circumstances, no convictions should have been recorded against El-Kotob on counts 2, 3 and 4 or against Hijazi on counts 2 and 5. It has long been accepted that this Court will entertain an appeal against conviction following a plea of guilty only in rare circumstances.[37] However, as Callaway, J.A. stated:

“... our power to intervene where conviction is consequent upon a plea of guilty arises from the general requirement to set aside a conviction if there has been a miscarriage of justice.”[38]

[37]R. v. GJB [2002] VSCA 54 per Winneke, P. at [12].

[38]R. v. Tait [1996] 1 V.R. 662 at 665. His Honour commenced his discussion on this aspect with a reference to the judgment of Avory, J. in R. v. Forde [1923] 2 K.B. 400 and pointed out that the alternatives mentioned by his Lordship at p.403 have not been regarded as exhaustive in Victoria referring to passages in R v Kardogeros [1991] 1 V.R. 269 and R v Pauli (1991) 55 A.Crim.R. 297.

The sentencing judge was, to a substantial extent, led into error but that did not relieve him of the obligation to ensure that double punishment for the same conduct was not imposed. By reason of the significance of the underlying principle, but with considerable reluctance, bearing in mind that his Honour was presented with an agreed position, I would grant an extension of time within which to make application for leave to appeal against conviction, allow those applications and set aside the convictions recorded against each of them on the counts relating to the substantive offences and in consequent the sentences imposed thereon.

Appeals against sentence

I now turn to the appeal of each of the appellants against sentence. Their respective grounds read:

El-Kotob
“1. The learned sentencing judge erred:
(a)in sentencing without regard to the principles relating to double punishment (see Pearce v. The Queen (1998) 194 C.L.R. 610 at [34]-[50]; and in particular
(b)in failing to pass sentences which avoided double punishment arising out of the commonality in the offending disclosed in the four counts alleged against the appellant.

2.The learned sentencing judge erred in failing to have regard to the fact that there were other and less punitive offences (namely, conspiracy to obtain property by deception, conspiracy to steal or conspiracy to obtain financial advantage by deception) which not only could have been charged instead of count 1, or counts 1, 2, 3 and 4, but were as appropriate or even more appropriate to the facts alleged (see R. v. Liang & Li (1995) 82 A.Crim.R. 39 at 42-45; Crimes Act 1958, ss.72, 80, 81, 321 & 321C).
3.The sentence imposed upon counts 1, 2, 3 and 4, the total effective sentence and the non-parole period are manifestly excessive.
4.The individual sentences, the total effective sentence, the non-parole period and the decision to impose a non-parole period rather [than] partial suspension all infringe the principles relating to parity among co-offenders.”

Hijazi
“1.The learned sentencing judge erred by:
(a)sentencing the applicant without having regard to the principles relating to double punishment. (See Pearce v. The Queen (1998) 194 C.L.R. 610);
(b)failing to pass sentences which avoided double punishment arising out of the commonality in the offending disclosed on the three counts alleged against the applicant.

4.The learned sentencing judge erred by imposing a sentence upon the applicant that offended the principle of parity when regard is had to the sentences imposed on the co-accused Hassan and Harouk.
5.The learned sentencing judge erred by failing to have regard to the fact that there were other less punitive offences which not only could have been charged instead of count 1, or counts 1, 2 & 5, but were as appropriate or even more appropriate to the facts alleged.
6.The learned sentencing judge erred by imposing upon the applicant individual sentences on counts 1, 2 & 5 and a total effective sentence that were manifestly excessive in all the circumstances.”

Grounds 2 and 3 were not pursued and, accordingly, need not be set out or addressed.
El-Kotob
Ground 1:

There is no need by reason of the conclusion that I have reached with respect to the conviction of this applicant on counts 2, 3 and 4 to deal with this ground.

Ground 2:

This ground lacks any merit whatsoever in my opinion in a case in which the appellant identified the precise charge that he regarded as appropriate in the circumstances and offered to plead guilty to it. The situation was significantly different than that considered by the Court in R. v. Liang and Li[39], where Winneke, P. stated:

“For my part, I think there is much substance in the argument that the applicants were exposed to an injustice by being charged with the offence created by s 82(1) of the Crimes Act 1958. This injustice flowed not only because the true purpose and intent of the charge was never explained to his Honour but also because that charge (exposing the applicants, as it did, to higher penalties) did not, in my view, appropriately fit the nature of the applicants' conduct.”[40]
“... that although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.”[41]

Setting to one side the issues considered earlier with respect to conviction, the laying of a charge of conspiracy to cheat and defraud would, in my view, have been entirely appropriate in the present matter, whether or not there had been negotiations of the kind that took place. Whilst, as counsel for the appellant pointed out, the maximum penalties which can be imposed upon conviction for conspiracy to cheat and defraud (15 years’ imprisonment) and conspiracy to obtain property by deception (10 years' imprisonment) vary significantly, there is nothing in the material before the Court which raises the suspicion that the judge may have imposed a lesser penalty had the conspiracy count been differently formulated. It should be remembered that the appellant’s conduct would constitute a serious example of the latter form of criminal conspiracy. Further, and more importantly, a count so formulated would not have addressed appropriately the extent and character of the appellant’s criminal conduct. He not only conspired to obtain property by deception but entered into an unlawful combination which involved the commission of a number of other offences with the objective of cheating and defrauding others upon whom the loss might fall in consequence. Not surprisingly, no reference was made by counsel appearing in the court below to the difference between the maximum penalty available for conspiracy to cheat and defraud and that which could be imposed for conspiracy to obtain property by deception, in this situation, and for obvious reasons, no submissions were advanced based upon this distinction.
Ground 3

[39](1995) 82 A.Crim.R. 39.

[40]At 43.

[41]At 44.

In his sentencing remarks concerning this appellant, his Honour described him as “clearly the principal”. The only reason advanced by his counsel in the course of the plea for engaging in what was acknowledged to be very serious conduct was expressed in the following terms:

“Your Honour, it’s one of those cases of sheer greed and obviously trying to get money illegally.
...
It’s a scheme which [w]as obviously engendered by an attempt to obtain money in a very easy way."

I observe that the judge had regard to the relative youth of the appellant, the absence of any prior convictions, his marital status and family responsibilities. He adverted to the appellant’s partnership in a successful restaurant business, his previous good reputation and standing in his community, and to his sense of shame as a consequence of his conduct. His Honour took into account the appellant’s plea of guilty and prospects of rehabilitation.

It is evident that this very experienced judge approached the task of sentencing the appellant with care. I am able to detect no specific error in the judge’s sentencing remarks with respect to him and none is, I consider, suggested by the disposition at which his Honour arrived. The sentence imposed upon the appellant on count 1 was in my view clearly within the range of those available to the sentencing judge in the circumstances.

This ground must fail.

Ground 4

His Honour who, it should be noted, had already dealt with Hassan and Harouk was well aware of the roles played by the various participants in the scheme and clearly conscious of the need to apply the principles relating to parity of treatment of co-offenders in a proper fashion

There were powerful reasons, some of which arose from the appellant’s role in the activity, which justified the imposition of a heavier sentence upon him than those imposed upon his co-offenders. Without setting out a detailed table of differences, the judge indicated that he had taken those matters into account. There is no reason to suppose that he may not have done so or that he failed to attribute appropriate weight to the relevant factors. I observe, for example, in this context that he said, when addressing Hijazi and Arabi:

“In each case, Harouk and Hassan made statements to the police, not only implicating themselves but assisting the police in the cases against you three.
Although I am mindful of the fact that you have each pleaded guilty at committal and are entitled to sentencing discounts to reflect that consideration, in my view neither you, Hijzad [sic], or you, Arabi, can expect to receive the same sentencing discounts as either Harouk or Hassan.
Each of you may well be closer to the top of the hierarchy than either Harouk or Hassan in the sense that you came to Melbourne with El‑Kotob, although I am mindful of the fact that the Crown say at least in your case, Arabi, that your role was similar to Hassan. Hijazi it is hard to say where you actually fit into the hierarchy. Your role is characterised as a lookout can only stand in one sense as in respect to the purchases made at supermarkets where you stand in relation to the hierarchy of planning of the conspiracy is perhaps hard to say, you coming as did Arabi from Sydney with the principal offender El‑Kotob.
As a consequence I propose to treat your involvement as being similar to Arabi ...”

He pointed to the evidence that Hassan and Harouk had assisted the police in their investigation of the matter as a significant consideration that had been taken into account when sentencing those two offenders.

I do not consider that the appellant would be entitled to a justifiable sense of grievance nor that an objective observer would perceive some injustice suffered by the appellant by reason of the imposition of a heavier sentence upon him.[42]
[42]R. v. Taudevin [1996] 2 V.R. 402 per Callaway, J.A. at 404.

Hijazi
Ground 1

Again, by reason of the view that I have adopted with respect to the recording of convictions against this appellant on counts 2 and 5, I do not need to address this ground.

Ground 4

I have already directed attention to the provision of assistance by Hassan and Harouk to the authorities as one basis for distinguishing between those two offenders and El-Kotob for sentencing purposes. His Honour made a similar distinction between this appellant and those two offenders.

In his sentencing remarks concerning Hassan, he made it clear that he did not regard either that offender or Harouk as a principal of what he described as “a conspiracy of some sophistication”. The principals, he said, had:

“a computer, they had cards that it could alter the encoding on, and on one view of it may well have been able to steal vast amounts of goods from the various supermarkets over a period of time.”

He said of Hassan:
“In your case, your criminal behaviour really is limited to one day. Accordingly, I consider in many ways you are in a slightly more favourable position than Harouk.”

In the course of the plea hearing in the case of Harouk, who I should add came before the court on different and some unrelated charges, the prosecution indicated to the sentencing judge that the summary of the prosecution case that had been provided to him suggested that none of the money which had been derived from the disposal of the property obtained was received by that offender. His Honour regarded that circumstance as relevant and, although he did not say so, probably indicative of Harouk’s position in the hierarchy of offenders.

Whilst the personal circumstances relating to Hassan and Harouk were very different from each other and Hijazi, it is evident that in the case of all three the sentencing judge considered that the prospects of rehabilitation of the particular offender were good.

The extracts from his Honour’s sentencing remarks that I have set out in this judgment demonstrate that he was mindful of the need to avoid the injustice inherent in unwarranted disparity between the sentences that he handed down in this matter. I do not consider that any specific error has been shown to have been made by him on this basis and I am unable to detect any by reference to the sentence imposed. This ground must fail.

Ground 5

I have already addressed this ground when considering ground 2 of the appeal of El-Kotob.

Ground 6

In addition to the consideration to which I have already adverted, as in the case of El-Kotob, the sentencing judge directed to the appellant’s plea of guilty, his relative youth, his personal background, employment history, previous good character and favourable prospects of rehabilitation. I am unable to detect any error of commission or omission made by his Honour with respect to the determination of an appropriate sentence in the appellant’s case. Nor do I consider that the sentence imposed upon this appellant on the count of conspiracy can in all the circumstances be described as outside the range of those available to the sentencing judge.

Conclusion

Subject to the orders that I have proposed in [58], I would dismiss each of the appeals against sentence before the Court.

O'BRYAN, A.J.A.:

I have read the draft judgment of Vincent, J.A., and save for one important matter concerning whether convictions should have been recorded against El–Kotob on counts 2, 3 and 4 or against Hijazi on counts 2 and 5, I agree that the appeal of each appellant against sentence should be dismissed.

I consider that an understanding, arrangement or agreement having been reached between the Crown and the appellants under which each appellant pleaded guilty to one count of conspiracy to cheat and defraud, and in the case of El–Kotob, to three substantive counts and in the case of Hijazi, to two substantive counts, the details of which are set out in paragraph [28] of his Honour's judgment, it is not open to the appellants to withdraw from the plea agreement by applying for leave to appeal against conviction unless they satisfy the very exceptional circumstances set out in R. v. Stewart.[43] In the joint judgment of Herring, C.J. and O'Bryan, J. the Full Court followed a decision of the English Court of Criminal Appeal[44]. "A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged."
[43]R. v. Stewart [1960] V.R. 106 at 108.
[44]R. v. Forde [1923] 2 K.B. 400 at 403 per Avory, J.

The decision in Stewart was followed by the Full Court in R. v. Murphy[45]. Sholl, J., in Murphy, considered that the principles formulated in Forde, and followed in Stewart, should not be regarded as exhaustive of all possible cases of miscarriage of justice: "for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats .…. to plead guilty where otherwise he would have pleaded not guilty."[46] In Stewart, the Court said:

"That the court can entertain an appeal against a conviction upon a plea of guilty, is undoubted, but it is only in very exceptional circumstances that it can do so."[47]

[45]R. v. Murphy [1965] V.R. 187.

[46]R. v. Murphy at 190.

[47]R. v. Stewart (supra) at 108.

In R. v. Tait[48] an accused who pleaded guilty to a number of sexual offences some of which had been commenced outside the 12 month limitation period was permitted to apply for leave to appeal against conviction as well as against sentence. The Court of Appeal allowed the appeal against conviction because the accused could not lawfully be prosecuted after the time bar of 12 months in s.48(6) of the Crimes Act 1958 and, therefore, could not lawfully be convicted. Callaway, J.A., who delivered the principal judgment adverted to Forde’s case[49] and said[50]:

“Avory, J.’s words should be understood and applied against the background that our power to intervene where conviction is consequent upon a plea of guilty arises from the general requirement to set aside a conviction if there has been a miscarriage of justice. Moreover his Lordship’s alternatives have not in this state been regarded as exhaustive: I refer to R. v. Kardogeros [1991] 1 V.R. 269, especially in the joint judgment of my brother Crockett and the present Chief Justice at 273-4, and to R. v. Pauli (1991) 55 A.Crim.R. 297.”

[48][1996] 1 V.R. 662.

[49]Supra.

[50]R. v. Tait at 665.

Tait was a clear case where the statute barred a prosecution out of time. The parties to the prosecution could not agree to waive the time bar in s.48(6). When time expired the accused could not lawfully have been convicted of the offence charged.

In R. v. GJB[51], Winneke, P. said:

"an accused person who has pleaded guilty to an offence in the court below is, in rare circumstances, entitled to appeal against the conviction recorded if he can demonstrate to the appellate court that the offence or offences to which he pleaded guilty were offences for which he could not lawfully be convicted."

[51]R. v. GJB [2002] VSCA 54 para.[12].

The legal principle enunciated in these decisions is well established. It follows that, to overturn the convictions recorded on counts 2 to 5, the appellants must demonstrate exceptional circumstances before an appellate court will conclude that a miscarriage of justice has occurred.

The appellants did not attempt to satisfy the first principle formulated in Forde. I turn now to the question whether upon the admitted facts they could not in law have been convicted of the offences charged in counts 2 to 5. I respectfully agree with Vincent, J.A. that the joinder of the counts relating to conspiracy and the substantive offences was not contrary to principle. Because an understanding, arrangement or agreement had been reached between the Crown and the appellants that they would plead guilty to each charge in the presentment, no occasion arose for severance of the substantive offences, such as occurred in the trial of Matthews and Ford[52] when the Crown elected at trial to proceed first with the count of conspiracy. When the presentment against Arabi was earlier filed before the same judge, Arabi pleaded guilty to four counts, including conspiracy, and was convicted. Three of those counts were, in substance and in form, identical to counts 1, 2 and 5. Arabi pleaded guilty pursuant to an agreement with the Crown and no miscarriage of justice occurred.
[52]R. v. Matthews and Ford [1972] V.R. 3 at 4.

The miscarriage of justice asserted by counsel for the appellants, who did not appear in the sentencing Court, was that the substantive offences provided an adequate basis for punishment purposes and it was contrary to principle and an abuse of the process of the Court for counts of conspiracy to have been laid. This argument is rejected by Vincent, J.A., in whose reasons I respectfully agree.

The understanding, arrangement or agreement between the parties carried with it an expectation and acceptance of punishment in one form or another for the substantive offences. The best outcome the appellants could expect was conviction and sentences on counts 2 to 5 with total concurrency with each other and with the sentence imposed on count 1. They voluntarily accepted punishment of conviction on all counts and the possibility of an additional custodial sentence by a cumulation order. The best outcome was achieved, when no cumulation order was made by the Judge.

I am unpersuaded that upon the admitted facts the appellants could not in law have been convicted of the offences charged. The acts alleged to constitute the conspiracy were close in point of time to the acts alleged to constitute counts 2-5, but not so related to and bound up with the overt acts of the conspiracy as to make the conspiracy the same event, transaction or episode. Different persons were involved in the substantive offences and the judge could reasonably regard the substantive offences as separate acts, transactions or episodes for the purposes of sentencing.

Further, for this Court to now allow the appellants an extension of time within which to make application for leave to appeal against conviction on counts 2 to 5 and to allow those applications and set aside the convictions recorded against each of them would amount to a miscarriage of justice against the Crown, in my opinion. The appellants, having entered upon an understanding, arrangement or agreement with the Crown, in the circumstances outlined, are bound thereby. To decide otherwise will have the undesirable effect of undermining the plea bargain process, for the Crown will be wary in the future of not proceeding with all available charges lest in this Court an appellant will seek to resile from their agreement.

The "very exceptional circumstances" or "rare circumstances" envisaged by the decisions to which I have referred do not exist, in my opinion, and I would dismiss the applications for an extension of time within which to appeal.

The error asserted in ground 1 of the amended grounds of appeal is common to the appellants. At issue is whether the principles relating to double punishment explained in Pearce v. R.[53] were infringed by the judge. The point of difference between Vincent, J.A. and myself arises from his conclusion that convictions and sentences imposed on the substantive offence counts constituted the imposition of double punishment because the sentencing judge took into account the criminal conduct covered by those counts in his determination of the appropriate sentence to be imposed upon the appellants for the count of conspiracy.[54]
[53](1998) 194 C.L.R. 610.
[54]Paragraph [42] of Vincent, J.A.’s judgment.

The criminal conduct covered by the conspiracy took place in Melbourne in an hotel on 11 April 2001 in discussions which took place in the morning between the appellants and Arabi. In a Summary of Events, which the judge read, the terms of the conspiracy were set out on page 1. The acts constituting count 2 were briefly referred to on page 3 after a description of the modus operandi:

“Using this process, the accused attended many retail outlets on 11 April 2001 and at twelve of those outlets, the accused made the following purchases: 1. $498.95 purchase of alcohol at about 1.50 PM Olympic Hotel, 31 Albert St Preston.”

A description of the acts constituting counts 3 and 4, involving the appellant El-Kotob alone, was given in a single paragraph at the end of page 2 of the summary:

“El-Kotob remained in the hire car, registration QMP-620, whilst purchases were being made by the other accused. In El-Kotob’s possession in the hire car, were the laptop computer with 272 bank account numbers, hand written lists with 128 bank account numbers, the bankcard reader/encoder, the 12 volt to 240 volt power converter which connected the laptop computer to the power source of the car and several bankcards belonging to him and persons other than the accused. It was El-Kotob’s role to use these items to encode bank account numbers onto those bankcards and then to issue them to Harrouk, Arabi and Hassan, so that they could make the purchases on behalf of all the accused.”

A description of the acts constituting count 5, involving the appellant Hijazi alone, is hard to identify in the Summary of Events. It may be that the following passage on page 6 related to count 5:
“Also found on Hijazi’s person were a quantity of bankcards and other cards issued in his name and two “Ving” cards with no embossing. Those cards were subsequently analysed and it was found that a NRMA card issued to Hijazi and the two “Ving” cards had no information recorded on their magnetic strips.”

The Record of Interview with Hijazi throws no more light on the facts relating to count 5.

In opening the case to the sentencing judge, the prosecutor drew a distinction between the conspiracy to cheat and defraud and the execution of the fraud, so it seems to me, leading his Honour to observe:

“You can say it’s a sophisticated conspiracy by reason of the planning, the computer and the scope of it, but in reality very little was stolen.”

The prosecutor responded:
“Yes, that’s a fair conclusion, it is large in its compass in terms of the planning aspect, it’s more than the average credit card fraud; it’s far more sophisticated and the Crown would say much more difficult to detect.”

In the course of the plea counsel for each appellant made no effort to separate the counts in any way for the purposes of punishment. Counsel sought suspended sentences. It is not surprising, in the circumstances outlined, that the judge in his sentencing remarks did not address separately the criminal conduct relating to the conspiracy and what he took into account for the purpose of punishment and the criminal conduct relating to each of the substantive counts. He had not been asked to do so. However, the different sentences imposed on the counts referable to each appellant indicates to my mind that his Honour carefully identified the criminal conduct relating to each count and avoided the vice of punishing the appellants twice for the same conduct.

The conclusion I have reached, not without difficulty, is that the vice of double punishment highlighted in Pearce[55] was not shown to be present in this case. Accordingly, I am of the opinion that ground 1 of the amended grounds does not succeed. Otherwise, I agree with Vincent, J.A. that the appeals against sentence should be dismissed.
[55]Supra.

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[2002] VSCA 109

26 July 2002