R v Novak
[2003] VSCA 46
•2 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.52 of 2001
| THE QUEEN |
| v. |
| EMILIA JUDITH NOVAK |
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JUDGES: | PHILLIPS, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 December 2002 | |
DATE OF JUDGMENT: | 2 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 46 | |
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Criminal law - Obtaining property and financial advantage by deception - Evidence of commission of crime by another irrelevant – Direction that a person who signed a document was bound by it - Irrelevant but not prejudicial - Browne v. Dunn direction - Recall of witnesses did not preclude inference of recent invention - Delivery on one occasion of several post-dated cheques of various dates properly the subject of several counts in the circumstances - Sentence - Total effective sentence of six years' imprisonment with a minimum of four years' imprisonment not manifestly excessive - Offences committed by a person to whom a licence was issued under s.19AP of the Crimes Act 1914 (Cth) - Licence had not expired when offences committed - Crimes Act 1914 (Cth), ss.19AP, 19AQ, Corrections Act 1976 (Vic.), s.76.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. M.J. Croucher | Victoria Legal Aid |
PHILLIPS, J.A.:
I agree in the judgment of Buchanan, J.A.
BUCHANAN, J.A.:
This case concerns a number of surprising transactions entered into by the applicant with three persons she met at Crown Casino. The applicant, who is a 55 year old woman, obtained from comparative strangers sums of money varying from $10,000 to $60,000, which were called either loans or investments, promising that the sums would be repaid shortly, together with a large profit, the amount of which was not always specified. In all, some $210,000 was lent or invested.
On 12 February 2001 the applicant was arraigned in the County Court and pleaded not guilty to a presentment containing six counts of obtaining property by deception (counts 1, 3, 4, 6, 7 and 11) and five counts of obtaining a financial advantage by deception (counts 2, 5, 8, 9 and 10). Counts 1 and 2 concerned money extracted from Tony Sinovcic. The remaining counts arose from the applicant's dealings with Charles and Joyce White.
Sinovcic gave evidence that he met the applicant at Crown Casino and shortly thereafter, on 13 February 1998 and at her request, lent her $10,000 for a short period of time. Sinovcic said that the applicant told him the money was to be used for a business and he would receive "a big return". Sinovcic met the applicant at his bank, withdrew $10,000 in cash and gave it to the applicant. (Count 1.)
Three days later, the applicant told Sinovcic that she wanted to borrow $35,000 for a short period of time and that Mr Sinovcic would be paid interest, the rate of which was not specified. Again the applicant and Sinovcic attended at the latter's bank, Sinovcic withdrew $35,000 and it was immediately transferred to the applicant's bank account. (Count 2.)
On 23 March 1998 Sinovcic attended at an office in Market Street in the city
where he met the applicant, Gabriel Werden, a solicitor, and a man called Zey Bey. Sinovcic had previously met Werden at Crown Casino. Werden handed to Sinovcic a cheque in the amount of $20,000 expressed to be payable to Sinovcic. Sinovcic gave the cheque to Zey Bey after indorsing the words "Please pay Zey Bey" on the back of the cheque. Sinovcic signed a document, which provided that he would be repaid the sum of $27,5000 on or before 18 May 1998. The document bore the signature of the applicant. The money was never repaid.
On 20 March 1998 Charles White spoke to one Hall, an accountant, concerning the investment of funds with the applicant. Later that day, the applicant attended at White's house where she collected a cheque from White drawn on a joint account of his and his wife's and made payable to cash in an amount of $25,000. The applicant said this was to be used to fund the importation of goods from Malaysia. (Count 3.) The loan was to be for a short time and White would receive $3,000 by way of interest. The applicant brought with her a loan agreement (on which Werden's address appeared) and said that if anything should happen to her, White was to present the agreement to her solicitor and he would be repaid in full. White prepared a handwritten document bearing a cheque number and the date 20 March 1998. The document continued:
"As arranged by Graeme Hall. Received this day cash cheque for $25,000. $10,000 to be used by Ms E. Novak. $15,000 to be used by Mr M. Koh. $25,000 plus $3,000 interest to be repaid within 21 days. Solicitor's guarantee to be provided by Graeme Hall on 23.3.98."
The applicant signed the document. A couple of days later the applicant attended at White's house and gave him $3,000 in cash, describing it as an early payment of interest, but the $25,000 was never recovered.
A written statement of Graeme Hall was admitted in evidence. Hall stated that the applicant telephoned him and asked him to lend her $5,000 in order to purchase and import computer equipment from Malaysia. He received a letter on the letterhead of Gabriel Werden saying that the funds would be invested through Werden's trust account. According to Hall, the applicant said she required the money for ten days and Hall would receive interest in an amount of $1,000. The applicant was given $5,000 in cash, which was repaid in full in seven days. Three or four days later the applicant contacted Hall and said that she needed $6,000 over a similar period and Hall would receive a payment of $8,000. Hall paid the sum of $6,000, and later received $8,000. Hall had spoken to White about this transaction, and White said that he was interested. Later, the applicant contacted Hall and said that she had another opportunity to invest. Hall gave the applicant $7,000, which was to be repaid together with an additional $2,000. Subsequently, the applicant advised Hall that Gabriel Werden had absconded with her money. Hall has not recovered the $7,000.
On 23 March 1998 White signed a cheque in an amount of $40,000 made payable to "E. Novak" and gave it to the applicant. The applicant produced a loan agreement, which she and the applicant signed, providing that White would be re-paid the principal and $10,000 interest by 18 June 1998. The applicant signed a handwritten document to that effect. The applicant told White that the money would be used to purchase goods from South East Asia. (Count 4.) The $40,000 was never recovered by White.
On 25 March 1998 the applicant told White that she had another deal, an investment of $30,000 for five weeks. White would receive $4,500 by way of interest. White transferred $30,000 to the applicant's bank account. (Count 5.) White never recovered the $30,000.
On 27 March 1998 the applicant told White that she had a further deal, which required an investment of $60,000 for a period of 14 days. White would obtain a profit of $12,000. White handed to the applicant a cheque for $50,000 drawn upon his own account (count 6) and a cheque for $10,000 drawn upon an account of his and his wife's (count 7). Both cheques were made payable to cash. The Whites did not recover any of their $60,000.
On 31 March 1998 the applicant gave White $4,500 in cash, saying that she had been repaid earlier than stipulated the interest applicable to the investment made on 25 March 1998 (that is to say, the subject of count 5) and that White might as well have it.
On 3 April 1998 the applicant told White that there was another deal which would pay 15% after 90 days. White said he had no more money. The applicant advised White to roll over the principal from the first and fourth deals (now the subject of count 3 and counts 6 and 7). White agreed to do so. On 14 April 1998, at his house, White told the applicant that he had changed his mind about the roll-over and wanted the $85,000 returned. The applicant said that she had already told those involved that the funds were to be rolled over and if White did not go ahead with the deal, she would have to repay him from her own money. She gave White four variously post-dated cheques each payable to "C. & J. White" in amounts of $18,600, $30,000, $97,750 and $50,000 and told White not to bank the cheques until the interest that each represented had become due. White presented the cheque for $18,600 and the cheque was honoured. The $18,600 represented the payment of $12,000 interest for the loan of $60,000 the subject of counts 6 and 7 and an additional $6,600. White presented the cheque for the sum of $30,000. The cheque was dishonoured. White did not present the remaining two cheques. By a notice of admissions, which was read into evidence, the applicant admitted that on 15 July 1998, the date appearing on the cheques for $97,750.00 and $50,000, the applicant's account on which the cheques were drawn was in debit in the sum of $16,239.27. On the date upon which the cheques were drawn the balance in the account was $37.68. (Counts 8, 9 and 10.)
On 19 May 1998 the applicant telephoned White and said that she had a cheque from Handyelectric in the amount of $25,408, of which she required $10,000, and White could keep the balance. White gave the applicant a cash cheque in an amount of $10,000 and the applicant gave White the Handyelectric cheque for $25,408. The Handyelectric cheque was presented and dishonoured. White immediately stopped payment of the $10,000 cheque. (Count 11.) The applicant later told White that Werden had absconded with $13 million of trust funds.
Nhuan Huu Ngo gave evidence that he was the director of Handyelectric. He identified his signature on the cheque for $25,408 and said that he did not write any of the other words on the cheque. He said he either lost his chequebook or it was stolen from his motor vehicle. Ngo said he had never met the applicant and had never borrowed money from her.
The Crown closed its case.
The applicant gave evidence in her defence to the charges. Her testimony at many points was inconsistent with that of the prosecution witnesses and her explanations did not always meet the Crown's allegations.
The applicant said that she met Gabriel Werden, a solicitor, at Crown Casino in early 1998. She made an appointment to see him about a unit which she was purchasing. The applicant attended at Werden's office. Werden discussed placing the applicant's money in investments. The applicant invested approximately $500,000 with Werden. The applicant was introduced to Sinovcic at the casino and because she felt sorry for him suggested that he visit Werden's office. Sinovcic did not wish to visit Werden's office, so the applicant spoke to Werden who advised her that Sinovcic could invest his money with the applicant's money. The applicant gave the $10,000, the subject matter of count 1, to Werden.
The applicant said that she did not arrange for a direct transfer of the $35,000, the subject matter of count 2, from Sinovcic's account to the account of Werden, for Werden instructed her to bring $40,000 in cash. Accordingly, the applicant arranged for $35,000 to be transferred to her bank account and she took $35,000 in cash from her house to pay to Werden.
The applicant said she was referred to White by Hall. Hall had invested money with the applicant, who had in turn given the money to Werden. Hall had telephoned Werden to verify what he was to receive and how much money was required. Hall told Werden during the telephone call that he had a man who would invest with him. Hall then telephoned White. The applicant was sent to collect a cheque from White. The applicant said that when she collected the cheque she signed a small handwritten document. Having been given a list as to how the money was to be distributed, the applicant went with White to his bank where she met a man called Koh. Koh credited $14,000 to an account in the name of Ms W.H. Koh; $23,000 was credited to the applicant's own account (as Werden had instructed her to do while she was in Hall's office, for Werden owed the applicant about $35,000 or $40,000); and the applicant took $8,000 in cash to Werden. The applicant said that she later found out that Koh conducted a lot of business with Werden.
On 23 March 1998, after a telephone conversation with Werden, the applicant attended at White’s house with documents provided by Werden and $3,000 in cash. She gave $3,000 to White and signed the loan agreement for $40,000 (refer count 4). Although the loan agreement stated that the applicant was the borrower, the applicant said she never believed it was her obligation to repay the loan. The applicant obtained a cheque for $40,000 from White and deposited it in her bank account. Of that sum the applicant withdrew $3,000 in cash, $2,000 was credited to her account, a bank cheque was issued in the sum of $20,000 payable to Sinovcic and another bank cheque issued in an amount of $15,000 payable to the applicant. Werden, she said, asked her to break the funds down in that manner. The cheque for $15,000 was credited to the applicant's account. The applicant said it related to interest payments on her investments with Werden. The applicant and Sinovcic then attended at Werden's office. Sinovcic signed a document, which the applicant witnessed. The document stated that it was the applicant's negative gearing and that she had borrowed against the account as that balanced out Mr Werden's books. She read the document before she signed it, although she questioned its contents. Werden advised the applicant that it was "negative gearing". The applicant did not believe that she was liable for that transaction and thought that she was only witnessing the document.
On 25 March the applicant was contacted by Werden to see if she could obtain $30,000 from White. The applicant telephoned White and said that Mr Werden wanted to know if White would like to invest $30,000. White transferred the money to the applicant's account (the subject of count 5) and Werden subsequently took the money in cash.
On 27 March 1998 the applicant obtained two cheques from White, one in the sum of $10,000, the other in the sum of $50,000 (these the subject of counts 6 and 7). The applicant paid $30,000 into her bank account, obtaining $30,000 from her house to make up the $60,000, which she gave to Werden.
It was Werden, said the applicant, who advised her to give White the post-dated cheques the subject matter of counts 8, 9 and 10. The applicant gave the cheques to White and asked him not to bank them until she heard from Werden as to the availability of funds. Money was to be deposited into the applicant's account and White could then draw upon the funds on the dates on the cheques. The applicant realized that White had deposited the first of the cheques (in the amount of $18,600) a couple of days later when she tried to pay some bills and found her account in debit.
Later, the applicant attempted to contact Werden, but without success. His secretary told her that receivers had taken over the office. The applicant telephoned White and advised him to come over. She said they had a big problem. The applicant told White what had happened, and later attempted to recover the money by reporting it to the police and contacting the receivers of Werden’s practice.
The applicant met Ngo at the Casino at about Christmas 1997. The applicant said that she saw Ngo at the casino every day and they developed a friendly relationship. Indeed she had lent $25,000 to Ngo by way of several interest-free loans. In May 1998 the applicant requested repayment by Ngo. Ngo told her to meet him in Footscray. Ngo said that he could not pay the applicant cash and wrote out a cheque on his Handyelectric business account. The applicant's account was overdrawn at the time and she asked Hall to cash the cheque. Hall referred the applicant to White. The applicant said to White that she needed $10,000 and he could have the balance. White gave the applicant a cash cheque in an amount of $10,000 in exchange for the Handyelectric cheque (refer count 11). The applicant did not attempt to cash the $10,000 cheque and when she became aware that the Handyelectric cheque would not be honoured, she made arrangements to slip White's cheque under his door.
On behalf of the applicant, one Trevor Coverdale gave evidence that he met the applicant at Crown Casino in December 1997 or January 1998. In February 1998 he accompanied the applicant to Werden's office in Market Street, Melbourne, where she handed over more than $200,000 to Werden. Either Werden or the applicant stated (or, as he said in cross-examination, at least implied) that the money would be invested in the same way as before.
The jury found the applicant guilty on all the counts on the presentment. After a plea was made on her behalf, the applicant was sentenced to be imprisoned for a term of four years on each count. The sentencing judge directed that the sentences on counts 7, 8, 9 and 10 be served concurrently with the sentence on count 1 and that four months of the sentence on each of the remaining counts be served cumulatively on the sentence on count 1, creating a total effective sentence of six years' imprisonment. His Honour ordered that the applicant serve a minimum of four years' imprisonment before she was to be eligible for parole.
In 1993 the applicant had been convicted on 21 counts of obtaining property by deception contrary to s.81 of the Crimes Act 1958 and five counts of defrauding a public authority contrary to s.29B of the Crimes Act 1914 of the Commonwealth, and had been sentenced to be imprisoned for a period of six-and-a-half years with a non-parole period of five years. Before becoming eligible for parole the applicant was released on licence pursuant to s.19AP of the Commonwealth Crimes Act. The offences now in question were committed during the currency of the licence, and, as a consequence, his Honour regarded the licence as revoked (by virtue of the legislation) and the applicant liable accordingly to serve the remainder of the sentence imposed in 1993, a period of one year, eight months and 25 days. The sentencing judge directed that the sentences which he imposed were to commence immediately upon the completion of the unserved Commonwealth sentence.
The applicant seeks leave to appeal against conviction and sentence. The ground of the application for leave to appeal against conviction is expressed to be that the verdict was unsafe and unsatisfactory due to:
"(i) His Honour excluding evidence from the Trial that would have shown or would have tended to show that another person committed the offences;
(ii)That in relation to Count 1, the victim recovered all money and interest owing within six weeks;
(iii)That in relation to Count 11, his Honour erred in allowing the witness Mr Ngo to provide a contemporaneous example of his handwriting in court. The inclusion of such a contemporaneous example of Mr Ngo's handwriting was unfairly prejudicial to Ms Novak.
(iv)The learned judge erred in directing the jury that 'as a matter of law, the person is bound by a document which that person signs' and that whether 'the person chooses to read it or not is not to the point'.
(v)The learned judge erred in giving a Browne v. Dunn direction. …
(vi)A miscarriage of justice resulted from the fact that the applicant was tried on each of counts 8, 9 and 10, the taking of verdicts on those counts and the recording of convictions and otherwise passing sentences on those counts, given that each of the offences arose out of the same act or acts and related to the evasion of the same debt.
(vii)An aggregate of errors caused the trial to miscarry."
I propose to treat each of the paragraphs in the notice as a separate ground.
The first ground concerned evidence which counsel for the applicant sought to elicit and which the trial judge ruled objectionable as self-serving hearsay and irrelevant. The evidence was that the applicant had made a claim upon the Solicitors' Guarantee Fund in respect of money of her own and of others, which the applicant had given to Werden, that Hall requested White to provide evidence of money paid to the applicant to facilitate her claim against the Fund, that White was told by a detective in charge of the investigation into Werden's affairs that Werden "had disappeared with a large amount of money", and that the informant had been told by the policeman in charge of an investigation into Werden's affairs that Werden had misappropriated money given to him to invest by a number of persons.
In my opinion the trial judge was correct in refusing to allow the applicant's counsel to cross-examine witnesses as he proposed. The evidence he sought to elicit was clearly hearsay and did not concern a fact in issue between the Crown and the applicant. Whether Werden absconded with money given to him by the applicant said nothing as to the applicant's intention in obtaining money from Sinovcic and the Whites.
Counsel for the applicant submitted that the trial judge erred because "a principal plank of the applicant's defence was that Mr Werden was the culprit." Werden's relevance to the present case was limited to the question whether the applicant acted honestly in that she believed that the money she obtained from Sinovcic and the Whites would be shortly returned to them with interest. The facts that Werden absconded with money given to him by the applicant and others and that the applicant made a claim upon the Solicitors' Guarantee Fund were not relevant to the issue of the applicant's state of mind when the acts alleged to constitute the offences were performed. In his charge to the jury the trial judge described the defence position as follows:
"The prosecution has to prove that Ms Novak knew, at the time that the money was invested with Mr Werden, that it was not safe and that it would not be returned and (defence counsel) submitted that you should be satisfied on the evidence that at the time that the money was invested, it was the belief of Ms Novak that the money was safe and that it would be returned."
The events which counsel sought to explore in his cross-examination could throw no light on the applicant's belief at the time she received the money or gave it to Werden.
Counsel for the applicant said that the question was "whether Mr Werden was the real culprit in these transactions." I do not agree with this analysis. Werden may have been a culprit, he may even have played a more significant role than that of the applicant. The jury was not required, however, to choose between Werden and the applicant. The question for the jury was the applicant's state of mind when she obtained the money she admitted receiving from Sinovcic and the Whites.
Ground (ii) depends upon the evidence that Sinovcic gave the applicant $10,000 on 13 February 1998 and $35,000 on 16 February 1998 and on 23 March 1998 received $20,000, which he immediately transferred to Zey Bey. Counsel for the applicant characterized the payment of $20,000 as satisfaction of the applicant's obligation to repay the original $10,000 with interest and submitted that the jury could not exclude the possibility that the applicant did not intend to deceive Sinovcic or intend to permanently deprive him of the $10,000.
The jury could have viewed Sinovcic's fleeting tenure of the cheque for $20,000 as part of the applicant's deceitful scheme. Sinovcic's position at the end was that he lost all the money he gave to the applicant, and in my view the jury were entitled to believe that had been the applicant's intention from the outset. In my opinion ground (ii) was not established.
During his re-examination of Ngo the prosecutor gave the witness a pen and paper and asked him to write the words appearing on the Handyelectric cheque, which Ngo had denied were written by him. Although counsel for the applicant objected, the trial judge allowed the demonstration. The paper on which Ngo wrote was admitted in evidence. Counsel for the applicant submitted that the exercise had no probative value or alternatively its prejudice to the applicant outweighed any probative value it might have had.
I think counsel for the applicant was correct when he said that it would not have been safe to conclude from the demonstration that the handwriting on the cheque was not that of Ngo. The jury, however, were not asked to draw that conclusion from the demonstration alone. The primary evidence was the oral testimony of Ngo. The slight probative weight of the demonstration was readily apparent. The trial judge clearly instructed the jury, if they needed to be told, that people "vary their writing either consciously or … unconsciously", and warned them that "It would be dangerous for you, who are not experts, to jump to any conclusions by your comparison of the sample." I do not think that the jury could have been misled by the exercise.
Ground (iv) arose from that part of the trial judge's charge in which he said:
"(The prosecutor) reminded you of parts of the evidence of Mr Sinovcic … that there was a loan agreement with Ms Novak, that Ms Novak had said that she merely witnessed the document, and then spoke about negative gearing.
I just interrupt that to say to you that, as a general proposition, as a matter of law, a person is bound by a document which that person signs. Whether the person chooses to read it or not is not to the point. It is a matter for you what you make of the evidence, but I tell you that, as a matter of law, a document which is signed by a person is binding on that person."
While the parol evidence rule was strictly irrelevant to any issue in the trial, I do not think that the trial judge's direction could have had any effect that was prejudicial to the applicant. The jury were clearly directed that the Crown was obliged to prove that the applicant was dishonest in that she had no belief that her promises to Sinovcic and the Whites would be performed, and that question was not affected by whether the applicant was bound by the agreement which she signed. The jury was told that the issue on which the applicant's guilt depended was the applicant's state of mind, and, in my view, they would not have thought that the answer to that question was supplied by the applicant's legal liability to perform the agreement. Counsel for the applicant presumably formed a like view, for no exception was taken to this part of the charge.
At the conclusion of the defence case, the trial judge raised with counsel for the applicant the question whether he should give a Browne v. Dunn[1] direction to the jury in respect of a number of matters identified by his Honour of which the applicant had given evidence but which had not been put by her counsel to the Crown witnesses. The trial judge said:
[1](1893) 6 R. 67.
"My present inclination is that I would still give the jury a direction along the lines of Browne v. Dunn if, at the end of all the evidence, I consider that there is an occasion to do it. I am hedging my bets, I accept that, but it may well be when I have heard any rebuttal evidence and further cross-examination I am satisfied that proper opportunity has now been accorded to the witnesses and there is no unfairness. If that is the view I then reach I would not make any direction to the jury on the application of the rule in Browne v. Dunn because there would be no basis for it, but I can't say at this stage what will be the outcome because I don't know."
The applicant's counsel appeared to think he was being offered a choice: to acquiesce in the recall of the Crown witnesses or suffer a Browne v. Dunn direction, for he said:
"If Your Honour ruled that you are going to do one or the other, then I think I would probably prefer the recalling of the witnesses rather than a direction .…"
He later said:
"I prefer the course, with respect, of recalling the witnesses."
The trial judge permitted the prosecutor to recall Simovcic, White and Ngo, and they were further cross-examined by counsel for the applicant as to the matters in the evidence given by the applicant, which the trial judge said had not been put to the Crown witnesses.
After the prosecutor's final address to the jury, counsel for the applicant said that the prosecutor had raised "the Browne v. Dunn point" and, while he was at pains to avoid criticizing the prosecutor, suggested that the trial judge "… give a direction that there might be a number of reasons why that was not put although the instructions may not have been given, it is not necessary to draw the inference that it was recent invention …"
In his charge, the trial judge reminded the jury that Sinovcic, White and Ngo had been recalled so that counsel for the applicant could put to them for the first time matters about which the applicant had given evidence and told the jury that there was a rule
"which requires counsel who proposes to lead evidence of the material fact, to put that fact in cross-examination to any witness, it might be expected to be able to confirm or deny that evidence, and order to give the witness the opportunity to confirm or deny it."
His Honour said that failure to comply with the rule might occur as a result of a mistake or for other innocent reasons or because the evidence "had been invented after the other witnesses had given their evidence."
Counsel for the applicant submitted that the direction should not have been given or alternatively that the trial judge erred because in his direction he did not place sufficient emphasis on the fact that "because the witnesses have been recalled so that the matters could be put to them, any breach of the rule should have been regarded as inconsequential."
In my opinion, the trial judge's direction was appropriate. The consequences of the failure of counsel to put relevant allegations to an opposing party's witness are twofold. In the first place, the opposing party is deprived of any benefit that might have been derived from the witness's response to cross-examination concerning the allegations. Secondly, the failure enables, though it does not require, an inference to be drawn that the allegations not put to the witness were recently invented. The recalling of the witnesses in the present case enabled the Crown's witnesses to meet the new material, but that did not alter the fact that the material was not put to the witnesses before the applicant gave evidence, and, in my view, the trial judge was entitled to canvass the possible inferences to be drawn from that omission.
Ground (vi) concerned three of the four post-dated cheques, which the applicant gave to White ostensibly to meet her obligation to repay the money due to White. Each cheque was the subject matter of a separate count alleging that the applicant dishonestly obtained the financial advantage of evading a debt of $177,500 by falsely representing that the cheque was a good and valid order for the payment of the amount of the cheque.
Although counsel at trial made no complaint that counts 8, 9 and 10 should have been laid as one count, counsel for the applicant on appeal submitted that it was improper to lay three charges that exposed the applicant to multiple punishment for one act. He relied on the decision of this Court in R. v. Sessions.[2] In that case, the accused was charged with and pleaded guilty to the offences of rape and recklessly causing serious injury arising from an incident when the accused was changing the nappy of his eight-month old victim. The accused became annoyed with her crying and pushed his index finger once into her vagina causing part of the intestine to be extruded through the vaginal opening. He was sentenced on the basis that the rape was constituted by the insertion of his finger to the slightest extent into the vagina and the offence of causing recklessly injury was constituted by the continued forceful penetration. The Court held that there was a single act by the accused in penetrating the victim and the distinction drawn by the sentencing judge between the initial penetration and the continued penetration was illusory. The accused could not be convicted of both offences as that would be to punish him twice for the same act.
[2][1998] 2 V.R. 304.
R. v. Sessions was concerned with a single act constituting an offence under two laws, a situation which gave rise to questions such as the application of s.51 of the Interpretation of Legislation Act 1984 and whether different statutes have fastened upon different qualities in the same set of primary facts to create separate offences.[3] In the present case, on the other hand, the question was whether there was one act creating one offence or several acts constituting different offences under the same law.
[3]See, for example, Environment Protection Authority v. Australian Iron and Steel Pty. Ltd. (1992) 28 N.S.W.L.R. 502 at 507-8 per Gleeson, C.J.
If, as counsel for the applicant contended, there was one relevant offence, she was not to be punished three times. If conviction on count 8 afforded the applicant a plea of autrefois convict in bar of further proceedings, convictions ought not to have been recorded in respect of counts 9 and 10.[4] In my opinion, however, the counts properly charged the applicant with separate offences. The cheque for $18,600 was dated 21 April 1998. The cheque for $30,000 was dated 29 April 1998. The cheques for $97,750 and $50,000 were dated 15 July 1998. Given the evidence that, at the request of Werden, the cheques were not to be presented unless and until there were funds in the bank to back them, the jury were entitled to view the delivery of each cheque as constituting a separate representation that that cheque would be honoured on presentation, if not on the date which it bore then on the date when funds went into the account to cover it, with the result that sum by sum White would, over time, recoup all of the money that he had lent to the applicant. So regarded the cheques were not together an ingredient of one offence, but were rather separate ingredients in separate offences.[5]
[4]R. v. Weeding [1959] V.R. 298.
[5]Cf. Brown v. R (1984) 79 Cr.App.R. 115.
I have disposed of the last ground of the application for leave to appeal against conviction by what I have already written.
The grounds of the application for leave to appeal against sentence are:
"1.That the sentence was manifestly excessive.
2.That his Honour erred in giving insufficient weight to the principle of totality.
3.That insufficient weight was given by his Honour to the applicant's gambling addiction.
4.The individual sentences, the total effective sentence and the non-parole period are manifestly excessive and they offend totality.
5.The learned judge erred in imposing the same sentence on each count in the presentment.
6.The learned judge erred in punishing the applicant or imposing sentence in respect of each of counts 8, 9 and 10.
7.The learned judge erred in failing to conclude:
(a)that s.19AQ(5) of the Crimes Act 1914 (Cth) had no application in the present case and that court had no power to issue a warrant under s.19AS;
(b)that s.19AA was applicable;
(c)that a relevant consideration was that the licence had not been signed by the applicant until 17 February 1998.
8.The learned judge, in ordering the State sentences be served wholly cumulatively upon the Federal sentence, erred in failing to take into account:
(a)the applicant's age;
(b)the fact that the applicant had been of good behaviour for at least some period on licence prior to the offending and that she had not offended during the remainder of the licence period or subsequently."
The applicant is now aged 54 years. She matriculated with honours in general mathematics and commenced a commerce course at the University of Melbourne, but did not complete the course. She married at the age of 18 years and moved to Sydney. The applicant has four adult children of that marriage. For several years she conducted a children's clothing business. The applicant remarried in 1999.
The applicant had 121 prior convictions from 11 court appearances, all offences involving dishonesty, including 23 convictions for obtaining credit by false pretences, 53 convictions for obtaining property by deception, two convictions for obtaining financial advantage by deception and five convictions for defrauding a public authority. The applicant had been sentenced to serve terms of imprisonment on seven occasions, the last being a sentence of six-and-a-half years, with a non-parole period of five years, imposed in the County Court on 19 March 1993, for 21 counts of obtaining property by deception and five counts of defrauding a public authority; and the last but one (which was imposed in the County Court on 28 June 1991), a sentence of two years, with a minimum of twelve months, for two counts of obtaining a financial advantage and one count of obtaining property by deception. Significantly, as the sentencing judge noted, the offences for which the applicant was sentenced in 1991 were committed while the applicant was on parole for previous offending, and the offences for which she was imprisoned in 1993 were committed while the applicant was on parole under the sentences imposed in 1991. And now, as earlier noted (in paragraph 28), the current offences were committed at a time when she was still under sentence as imposed in 1993 and while she was on release on licence under s.19AP of the Commonwealth Crimes Act. This is an impressive record of re-offending.
In the course of the plea, evidence was led from a person with experience in dealing with those addicted to gambling, who stated his opinion that the applicant was a compulsive gambler. Counsel for the applicant informed the sentencing judge that the applicant continued to gamble although she had made efforts to end her addiction.
The sentencing judge found that as a consequence of her co-operation with the authorities the applicant had been assaulted in prison and said, "I accept that such an experience makes a sentence of imprisonment more difficult for you than is normal."
In the light of the applicant's record of prior convictions the offences cannot be viewed as an aberration. The sentencing judge found that the offences were planned in advance. They were carried out with the skill of one practised in deceit, deploying charm and power of persuasion. The chosen victims were persons who appeared gullible and greedy. The amount, which the applicant obtained, was significant. In my view, having regard to the circumstances of the offence and the applicant's history, the total effective sentence and the non-parole period were within the range available to the sentencing judge. The individual sentences were appropriate, and, in my opinion, the accumulation ordered by the sentencing judge did not result in a sentence which offended the principle of totality. The overall sentence, in my view, properly reflected the significance of separate crimes committed against several victims. I do not regard either the total effective sentence or the non-parole period as manifestly excessive.
Under ground 5 the applicant's counsel relied upon the differences in the amounts of the payments, ranging from $10,000 to $60,000, and submitted that the sentences on counts 1, 8, 9, 10 and 11 warranted sentences of far less than four years. Count 1 concerned only $10,000 and, said counsel, was returned with massive interest; count 11 related to a dishonoured cheque; and counts 8, 9 and 10 arose from attempts to defer payment of a debt.
In my opinion, the differences pointed out by counsel were not so marked or significant as to render imposition of the same sentence an error which vitiates the sentences. The offences were committed over a relatively short period of time and arose from one consistent course of conduct. I think the sentencing judge was entitled to deal with them all as exhibiting a like degree of criminality.
Ground 6 is the corollary of ground (vi) of the application for leave to appeal against conviction and depends upon counts 8, 9 and 10 being seen as an offence involving one act. For the reasons I have stated, I am of the opinion that the counts reflected the commission of separate offences. Due allowance for the common elements in the offences was made by the order that the sentences were to be served concurrently.
The applicant did not pursue grounds 7(a) or (c), but maintained that the sentencing judge erred in failing to apply s.19AA of the Crimes Act of the Commonwealth ("the Act"). According to the records to which counsel assisting for the Commonwealth referred the judge, the applicant was released on licence under s.19AP of the Act on 23 December 1997, a licence which was due to expire on 18 September 1999 which was precisely one year, eight months and 25 days after release. The question was whether that was a period still to be served, as ordered by the sentencing judge.
It is perfectly clear that the offences were committed by the applicant during the currency of the licence issued under s.19AP and in such cases s.19AQ(3) of the Act provides that if a licensee is sentenced to a term of more than three months' imprisonment, "the licence is taken to have been revoked upon the imposition of the sentence or sentences"; and, pursuant to s.19AQ(5), the licensee becomes liable to serve that part of the sentence for the Federal offence that remains unserved. Though counsel for the Commonwealth submitted otherwise, both the prosecutor and counsel for the applicant submitted to the sentencing judge that because the period of the licence had expired and the term of the Commonwealth sentence had ended by the time of his Honour's sentencing, there was no part of that sentence remaining unserved and so nothing which the applicant was still liable to serve.
His Honour rejected that submission, relying on s.19AQ(4), which provided:
"If, at the time of the imposition of the sentence or sentences the licence period has already ended, the licence is to be taken to have been revoked as from the time immediately before the end of the licence period."
His Honour said:
"In my opinion, sub-s.(4) means and is intended to mean that where a licence period is ended at the time at which the sentence is to be imposed, the licence is deemed to have been revoked immediately before the end of the licence period."
Moreover, sub-s.(5) does not simply require that the person being sentenced serve that part of the earlier sentence that "remains unserved", but more specifically renders the person being sentenced "liable to serve that part of the sentence ... for the federal offence that the person had not served at the time of his or her release under licence" - which in this case was the period of one year, eight months and 25 days. According to s.19AQ therefore, that period fell to be served in addition to the sentence imposed for the State offences - and thus far the parties were agreed by the time this application was argued.
Counsel for the applicant submitted, however, that the combined effect of s.19AA and s.76 of the Victorian Corrections Act 1986 was that the Commonwealth sentence had expired by the time the applicant was sentenced for the State offences, so that nothing remained to be served under s.19AQ(5) in respect any of the earlier federal offences. Section 19AA(1) provides that a law of a State that provides for the remission or reduction of State sentences "applies in the same way to the remission or reduction of a federal sentence in a prison of that State". Sub-section (2) provides that where a law of a State provides that a person is to be taken to be serving a State sentence during the period "from the time of the release under a parole order or licence (however called) until the parole order or licence is, or is taken to be, revoked", the law is, for the purposes of sub-s.(1) to be taken to be a sentence providing for the remission or reduction of sentences. Section 76 of the Victorian Corrections Act provides that where a parole period elapses without the cancellation of the parole or the commission by the prisoner of an offence for which he is sentenced to be imprisoned for more than three months, the prisoner is to be regarded as having served a prison sentence and is to be wholly discharged from the sentence.
The short answer to the applicant's contention is that on any view the applicant did not satisfy the conditions of s.76. Section 76 is called into play only if the period of parole elapses without the cancellation of the parole "or the commission by the prisoner of an offence for which the prisoner is sentenced to imprisonment for more than three months". That is not this case, for the applicant did commit such offences and so s.19AA(2) does not advance her case at all. It simply has no application here and it is unnecessary to go any further into its interpretation.
The applicant had an alternative argument. If, said counsel, the applicant derived no benefit under subs.(2) of s.19AA, the applicant was entitled to the benefit of subs.(3). That provides that where an federal offender "does not get the benefit of subsection (2) in calculating the part of the federal sentence of imprisonment remaining to be served at the time of release" the court "must have regard to the period of time spent by the person on parole or licence before that parole order or licence is revoked or taken to have been revoked". In this case that was the whole of the period spent in the community on release, given that the period of licence had expired before the offender fell to be sentenced for these offences (as to which see s.19AQ(4)) - albeit that some months were spent in re-offending. In my opinion the respondent was correct in submitting that there was no ground for supposing that the sentencing judge failed to have regard to the period of time spent by the applicant under licence (which was revoked only when sentence was passed). After all, it was the subject of much discussion on the plea, given the difficulties attending the operation of the federal legislation.
Ground 8(a) was not pursued.
Under the last ground, counsel for the applicant submitted that the sentencing judge appeared to pay no regard to the fact that the applicant had been of good behaviour for at least that part of the licence period prior to the commission of the offences now in question and that she had not offended afterwards, during the
remainder of the licence period. (In effect this was the thrust of the submission made under ground 7 with which I have just dealt.) Although (which is not surprising) the sentencing judge did not expressly refer to the fact that the applicant did not continuously offend during the period of the licence, her good behaviour during part of the licence period must have been present to his mind, for he was required to deal with the consequences of the commission of offences while the licence was current. There is no substance in the point.
For the foregoing reasons, I would dismiss the application for leave to appeal against both conviction and sentence.
VINCENT, J.A.:
I agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons advanced by Buchanan, J.A.
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