R v Keech
[2002] VSCA 103
•24 July 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 131 of 2001
| THE QUEEN |
| v. |
| IAN NORMAN KEECH |
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JUDGES: | CALLAWAY and VINCENT, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 June 2002 | |
DATE OF JUDGMENT: | 24 July 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 103 | |
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Criminal law – Obtaining financial advantage by deception – Financial advantage obtained in New South Wales but necessary documentation executed in Victoria – Whether “real and substantial link” with Victoria – Sentencing – Ill-health making service of prison sentence more difficult – Whether adequately taken into account – Crimes Act 1958, s.80A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan Q.C., D.P.P. Mr R.L. Gibson | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr J.W. Lee | Byrne & Clark |
CALLAWAY, J.A.:
The applicant, who is now aged 49, was presented in the County Court on one count of obtaining a financial advantage by deception contrary to the provisions of s.82 of the Crimes Act 1958. After a trial occupying nine days he was found guilty on that count. The maximum custodial penalty is 10 years' imprisonment. Following a plea for leniency on his behalf, the learned trial judge sentenced the applicant to 18 months' imprisonment with a non-parole period of eight months. His Honour directed that a copy of certain of the exhibits tendered on the plea were to accompany the applicant to prison and to be made available to the prison authorities and that the evidence of the applicant’s doctor given on the plea was to be transcribed and similarly provided.
Of the three grounds of appeal in the notice of application for leave to appeal against conviction, only one was argued, namely that the learned judge erred in law in deciding that the County Court had jurisdiction to hear and determine the matter.
Before turning to counsel’s submissions, I shall say something briefly about the circumstances of the offence. The applicant met the co-accused, Iain Ross Macdonald, in 1998 and became his financial adviser. They shared an interest in showing and photographing dogs. The applicant advised Macdonald to set up a photography business, which he did at the end of that year. A company, Proform Imaging Pty. Ltd. (“Proform”), was incorporated in early December and photographic equipment was purchased to the value of approximately $11,750. The directors of the company were Mr and Mrs Macdonald. The shareholders were Mrs Macdonald and Lanaken Kennels Pty. Ltd. The applicant and Macdonald were the signatories to Proform’s Bank of Melbourne account in Wangaratta.
The company rapidly ran into financial difficulties and needed more funds. Macdonald travelled to Sydney and together they met with a finance broker called Robert Knight. The applicant told Mr Knight that Proform needed photographic equipment, although he knew that Proform already had such equipment. The broker then prepared an application form to Esanda Finance Corporation Ltd. (“Esanda”) requesting lease finance or a hire purchase agreement to enable Proform to obtain photographic equipment from Tekcorp Specialist Coating Systems Pty. Ltd. (“Tekcorp”). That company was controlled by the applicant, who supplied a false invoice dated 5th January 1999 representing that Tekcorp owned the photographic equipment, that it was valued at $68,000 and that Tekcorp had received a $20,000 deposit from Proform. In further support of the application to Esanda, the applicant provided a false profit and loss statement purporting to be a true record of the business history of Proform for the year ended 30th June 1998. It will be recalled that the company was not incorporated until December.
Two of the essential documents for the provision of the finance were documents described as a lease and a guarantee. (Whether the former description is strictly accurate does not matter.) On 8th January 1999 the applicant and his wife flew from Sydney to Albury. They were met by an employee of Proform and driven to the company’s office in Wangaratta, where the applicant produced the common seal of Proform and affixed it to an offer to hire addressed to Esanda, four pages of terms and conditions and an annexure describing the equipment. Mr and Mrs Macdonald attested the affixation of the seal to those documents. The applicant then told them to go across the road to the ANZ Bank so that their signatures on the guarantee could be witnessed by a bank officer. That was done and the applicant then returned to Sydney with the lease and guarantee for delivery to Esanda. They were dated 13th January 1999 by Mr Knight’s secretary and on that day Esanda remitted $48,000 to Tekcorp.
When the objection to jurisdiction reflected in the ground of appeal was taken below, it was conceded that the County Court did not have jurisdiction at common law. Exclusive reliance was placed on s.80A of the Crimes Act, which reads:
“(1) If -
(a)a person does, or omits to do, an act or thing referred to in sections 81–87 (both inclusive) outside, or partly outside, Victoria; and
(b)there is a real and substantial link within the meaning of sub-section (2) between doing, or omitting to do, the act or thing and Victoria -
those sections apply to the act or thing or the omission as if it had been done, or omitted to be done, wholly within Victoria.
(2)For the purposes of sub-section (1), there is a real and substantial link with Victoria -
(a)if a significant part of the conduct relating to, or constituting[1] the doing of the act or thing, or the omission, occurred in Victoria; or
(b)where the act or thing was done, or the omission occurred, wholly outside Victoria, if the act or thing was done, or omitted to be done, with the intention that substantial harmful effects arise in Victoria and such effects did arise.”
[1]A comma is to be understood.
The judge decided that that section applied, on the footing that the execution of the lease and guarantee in Victoria, notwithstanding their subsequent dating and acceptance in New South Wales, formed “a significant part of the conduct relating to ... the doing of the act” referred to in s.82, i.e. the obtaining by deception. Accordingly, applying sub-s.(1), even if the financial advantage was obtained in New South Wales[2], there was “a real and substantial link” between that act and Victoria and s.82 applied as if the financial advantage had been obtained in this State.
[2]Compare Lipohar v. R. (1999) 200 C.L.R. 485 at [18].
In my respectful opinion, that analysis, which the Director supported at the hearing of the application, is correct. Mr Lee submitted that, either by reason of their later dating or on general grounds, the execution of the lease and guarantee was not a significant part of the relevant conduct. He acknowledged that that is, to some extent, a matter of impression. As his Honour observed, those documents were an essential link in the chain of deception. Without them, the financial advantage would not have been obtained. They were not merely part of the surrounding circumstances but had causal significance and their execution was an important part of the fraudulent scheme. The connexion with Victoria was not fortuitous.[3]
[3]In expressing myself that way, I am not proposing a test or tests that is or are necessarily applicable in other cases. I am simply explaining the reasons for my conclusion in this case.
That conclusion makes it unnecessary to decide some other issues that were explored. They included the relationship between s.80A and the common law of extraterritoriality[4] and the significance of its having since emerged that the victim was a company incorporated in this State. But it is desirable to refer to a Canadian case that influenced the wording of s.80A and to the second reading speech when that section was inserted in the Crimes Act by the Crimes (Computers) Act 1998.[5]
[4]I do not wish to give encouragement to the idea that the common law is excluded by s.80A. The section does not say so and its language appears simply to extend the operation of ss.81-87.
[5]Section 5.
The Canadian case is Libman v. R.[6] The judgment of the Supreme Court, examining the topic of extraterritoriality, was delivered by La Forest, J. At 212-213, his Lordship said:
| “I might summarize my approach to the limits of territoriality in this way. As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a ‘real and substantial link’ between an offence and this country, a test well-known in public and private international law; see Williams and Castel, supra; Hall, supra. As Professor Hall notes (p.277), this does not require legislation. It was the courts after all that defined the manner in which the doctrine of territoriality applied, and the test proposed simply amounts to a revival of the earlier way of formulating the principle.” | “Je pourrais résumer ainsi ma façon d’aborder les limites du principe de la territorialité. Selon moi, il suffit, pour soumettre une infraction à la compétence de nos tribunaux, qu’une partie importante des activités qui la constituent se soit déroulée au Canada. Comme l’affirment les auteurs modernes, il suffit qu’il y ait un «lien réel et important» entre l’infraction et notre pays, ce qui est un critère bien connu en droit international public et privé; voir Williams et Castel, ainsi que Hall, précités. Comme le professeur Hall le note (à la p.277), cela n’exige aucun texte de loi. Après tout ce sont les tribunaux qui ont défini la façon dont le principe de la territorialité s’applique et le critère proposé équivaut simplement à rétablir la formulation antérieure de ce principe.” |
[6][1985] 2 S.C.R. 178.
When the Attorney-General moved that the Bill for the Crimes (Computers) Act be read a second time, his explanation for the proposed s.80A included the following passage:
“The Bill provides that, in relation to theft, fraud and blackmail offences, the law of Victoria applies – and therefore a prosecution can be commenced in Victoria – where there is a real and substantial link with Victoria. This test has been applied by the Supreme Court of Canada in Libman v. The Queen, an important decision in 1985. A real substantial link [sic] might be evidenced by the occurrence in Victoria of a significant part of the activities constituting the crime or by the offender intentionally causing substantial harmful effects to occur in Victoria.”
The last sentence of that passage omits reference to the possibility that the conduct might relate to, rather than constitute, the crime, but nothing turns on that. It is the words of the legislation that matter[7] and it may be that the Minister was simply giving two examples.
[7]Compare R. v. Best [1998] 4 V.R. 603 at 606 lines 21-24 and 610 lines 15-20.
His equation of the test adopted by the Supreme Court of Canada in Libman v. R. with the test enacted in s.80A should not take us, at least in a case like the present, to an examination of the way in which the test of a “real and substantial link” (“lien réel et important”) is applied in Canada or to the academic writings or the learning in public and private international law to which La Forest, J. referred. We should simply apply the words of s.80A according to their natural meaning. It is doubtless for that very purpose that Parliament included sub-s.(2).
For these reasons I consider that the application for leave to appeal against conviction should fail and I turn to the application for leave to appeal against sentence. The notice of application contained four grounds, namely that the learned trial judge gave too little weight to the medical evidence called; that his Honour gave too much weight to the principle of general deterrence; that he gave too much weight to the question of parity with the sentence imposed on the co-accused; and that the sentence was manifestly excessive.
Mr Lee argued those grounds together, concentrating on the applicant’s medical condition. He suffers from insulin dependent diabetes, morbid obesity, depression and two kinds of arthritis, namely osteoarthritis of the back and psoriatic arthropathy. Impressive evidence was given on the plea by the applicant’s treating general practitioner, Dr Miller, concerning his condition and his inability to attend to daily needs including personal hygiene. Reports from specialists were also tendered.
There is no doubt that, for those reasons, service of a prison sentence will weigh much more heavily on the applicant than on a person in good health, but I do not accept the thrust of Mr Lee’s submission that his Honour took insufficient account of that factor. In the first place, it was a matter emphasized in the sentencing remarks. After referring to Dr Miller’s evidence and describing him as a remarkably helpful witness, his Honour concluded:
“It is certain that you are ill equipped, if I may use that expression, for imprisonment but you are not incapable of undergoing it. It will be, I have no doubt, difficult for you and quite probably extremely uncomfortable particularly in matters of personal hygiene but that is not enough to persuade me that you should not be imprisoned.”
He added that the prison authorities would be well able to cope with the applicant’s medical condition and, as we have seen, he gave directions as to the documents that were to accompany the applicant to prison. Later in the sentencing remarks his Honour referred again to the additional hardship that a custodial sentence would impose on the applicant.
Secondly, the sentencing disposition itself shows that this matter was accorded appropriate weight. I do not refer only to the non-parole period, which is unusually short, but also to the head sentence. A sentence of 15 months' imprisonment was imposed by a different judge on Macdonald.[8] That sentence reflected the fact that he had pleaded guilty and given a sworn undertaking to give evidence against the applicant. True it is that he had a previous conviction[9] and the applicant did not, but the applicant was on bail for a subsequent offence at the time
he committed this offence.[10] If Macdonald’s sentence is notionally grossed up to reflect the discounts to which the applicant was not entitled, it confirms one’s intuitive impression that the sentence of 18 months' imprisonment contained an allowance for the applicant’s health that was within the range.
[8]Macdonald was sentenced on eight counts. I am referring to the relevant count.
[9]In fact he had several previous convictions, but only one of them was taken into account.
[10]The charge related to an offence of obtaining property by deception committed on 20th November 1998. On 20th March 2001 the applicant was convicted in the Hornsby Local Court and given a 12 months suspended sentence. For the relevance of such a subsequent conviction, see R. v. Felstead (unreported, Full Court, 8th February 1983) at 8-10; R. v. Zayat (unreported, Court of Appeal, 11th October 1995) at 10 and R. v. Ung [2002] VSCA 101 at [16].
However helpful such a comparison may be, at the end of the day the question is whether any of the errors assigned in the grounds of appeal is made out. In my opinion none of them is sustained. Apart from the applicant’s health, there was every reason to pursue the objectives of general and specific deterrence and just punishment for a carefully orchestrated fraud. His Honour was not bound to suspend the term of imprisonment that he imposed. It follows that I would also dismiss the application for leave to appeal against sentence.
VINCENT, J.A.:
I agree for the reasons advanced by Callaway, J.A. that the applications for leave to appeal against conviction and sentence should be dismissed.
O'BRYAN, A.J.A.:
I agree.
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