Whisson v Mead
[2006] SASC 195
•3 July 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WHISSON v MEAD
[2006] SASC 195
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Vanstone)
3 July 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Application for leave to appeal to Full Court against decision of single Judge - merits of appeal also heard and determined - respondent convicted in Magistrates Court of clearing illegally, native vegetation - single Judge allowed appeal against sentence imposed by Magistrate - whether single Judge erred in taking into account monies expended in paying others to commit the offences - consideration of sections 10(1)(e) and 10(1)(ka) of the Criminal Law (Sentencing) Act (SA) - appeal allowed.
Native Vegetation Act 1991 (SA) s 26; National Parks and Wildlife Act 1972 (SA) s 47(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(e), s 10(1)(ka), referred to.
Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 ; R v Adami (1989) 51 SASR 229; R v Gee (1988) 148 LSJS 286; R v Carpentieri (2001) 81 SASR 164; R v Kalache (2000) 111 A Crim R 152; NSW Crime Commission v Farah (2003) 142 A Crim R 108 ; R v Allen (1989) 41 A Crim R 51 ; R v Brough [1995] 1 NZLR 419 ; R v Errigo (2005) 92 SASR 562, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Forfeiture"
WHISSON v MEAD
[2006] SASC 195Full Court: Bleby, Gray and Vanstone JJ
BLEBY J: I agree with the orders proposed by Gray J and with his reasons.
GRAY J:
Application for Leave to appeal
This is an application for leave to appeal to the Full Court against a decision of a Judge of this Court allowing, in part, an appeal against a sentence imposed by a magistrate. The application was referred into open Court and the parties were requested to present full argument. The respondent chose not to be represented on the hearing of the application before the Full Court.
The question raised by this proposed appeal is whether monies expended in paying others to perform an unlawful act may be taken into account in determining the amount of a fine to be imposed for an offence arising out of that unlawful act.
Background
The respondent, Ian William Mead, was convicted, following a trial in the Magistrates Court, of two offences: the first pursuant to section 26 of the Native Vegetation Act 1991 (SA), which prohibits the clearing of native vegetation, the maximum penalty for which is a fine of $100,000; the second pursuant to section 47(1)(a) of the National Parks and Wildlife Act 1972 (SA), which prohibits the taking of a native plant from a reserve, the maximum penalty for which is a fine of $2,500.
The magistrate found that the respondent had paid two brush cutters $6,800 to harvest unlawfully some 2000 bundles of native vegetation on his behalf. At trial, the respondent contended that the brush had been harvested on his and his neighbours’ properties. However, the magistrate accepted the scientific evidence that at most 140 bundles could have come from that area and that the balance must have been cut in the Billiat Conservation Park, a large conservation park in the Mallee area of South Australia adjoining the respondent’s property. The native vegetation involved was Melaleuca unincata, commonly known as broom brush, used in the fencing industry. The approximate value of the brush cleared by the respondent was $17,000 wholesale.
Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the magistrate imposed the one penalty in respect of both offences and fined the appellant $30,000. In addition, the magistrate ordered the forfeiture of two tractors and a trailer, found to have been involved in the respondent’s taking of the brush, as well as the bundles of brush.
The respondent appealed to this Court against both convictions and sentence. A single Judge dismissed the appeal against the convictions. He allowed the appeal against sentence, ordered that the fine of $30,000 imposed by the magistrate be set aside and imposed a fine of $23,000 in lieu thereof. The Judge’s reasoning for so doing was set out in the following terms:[1]
Were it not for one particular matter, I do not think that the penalty imposed by the magistrate could be regarded as so high as to be excessive. That matter is that the appellant had paid away $6,800 to the two men for the cutting of the Brush. If the monetary penalty of $30,000 stands, the appellant will, in effect, suffer a loss of $36,800 in addition to the forfeiture of his equipment.
Looked at in that light, the financial penalty imposed by the magistrate is, in my opinion excessive. It does seem to me that the magistrate failed to take appropriate account of the loss suffered by the appellant by his paying away of the $6,800 for the Brush which is now to be forfeited.
For this reason, I would allow the appeal against sentence. Instead of a monetary penalty of $30,000, I would impose a monetary penalty of $23,000.
It is against this part of the decision that the applicant seeks to appeal.
[1] Mead v Whisson [2006] SASC 69 at [71]-[73].
In accordance with the rules, the applicant, Craig Whisson of the Department for Environment and Heritage, applied to the Judge for leave to appeal to the Full Court against his decision to give the appellant credit for the monies that he expended in the commission of the offence. In the course of his reasons for refusing the application, the Judge further explained why he had determined that the magistrate ought to have taken into account the monies paid out by the appellant to have the brush cut:
[A]lthough s 10 of the Criminal Law (Sentencing) Act 1988 does not list the amounts expended by a defendant in connection with the commission of the offence as being a relevant matter to be taken into account, it does list in s 10(1)(e): “Any injury, loss or damage resulting from the offence.” Normally one would expect that to relate to injury, loss or damage suffered by a victim or by others of the offence, but it may not be so confined.
Perhaps more importantly, s 10(1)(ka) refers to the forfeiture of property as being an appropriate matter in some circumstances to be taken into account, and in particular, the nature and extent of the forfeiture. In the present case, the brush which had been cut was forfeited. It was able to be seized and forfeited because it was still on the property of the defendant when the offence was detected.
Things might have progressed a little further however, and it been sold and the defendant possibly found with the money in hand, and that money could have been seized and forfeited. If it be appropriate in some circumstances to take into account the forfeiture of a substance or item used in connection with the commission of the offence, or acquired by virtue of the expenditure of money in connection with the commission of the offence, it would not seem to me to be altogether inappropriate to take into account the fact that monies have been expended in connection with the acquisition of that substance or item.
That leads me to think that one could not state as an absolute principle, that it would never be appropriate to take into account the fact that monies had been paid away by an accused person. One can easily imagine circumstances in which it would not be appropriate to do so, eg, a drug dealer who in the course of the drug dealing, has paid away monies for the purpose of acquiring the drugs which were to be subject of a proposed drug deal.
The Judge articulated two reasons for refusing to grant leave to appeal. First, he considered, in light of his reasoning set out above, that whether it was appropriate to take monies paid out in the commission of an offence into consideration in the sentencing process was dependent upon the circumstances of the individual case. He therefore concluded that the proposed appeal amounted to a factual inquiry, meaning that the application was less appropriate for the subject of a grant of leave to the Full Court.
Second, the Judge explained that the appellant’s complaint made before him on appeal, regarding the magistrate’s failure when fixing the sentence to take into consideration the monies paid away, was not met with any particular submission by the applicant. Accordingly, it was not the subject of any detailed consideration by the parties and therefore in the determination of the appeal. In this way, the Judge concluded that to grant leave to appeal would be, in effect, to permit the applicant to agitate an issue before the Full Court, which was not thoroughly considered by the Court below.
Application for leave to appeal
Leave to appeal to the Full Court against a decision of a single Judge of this Court will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify the cost of an appeal.[2] The issues raised by the present application satisfy both criteria.
[2] Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at 313-314 (King CJ).
The question whether monies paid out in the commission of an offence can be taken into account by the court when considering an appropriate sentence raises a matter of general principle. It may be that, if answered affirmatively, whether monies paid out should in fact be taken into account in a given case will be a question of fact to be determined in the specific circumstances in which it arises. However, as a general proposition, it is an important question of law and therefore suitable for consideration by the Full Court.
As to whether this matter was fully argued below, it is sufficient to note that the Judge did make the express finding to take the monies paid out into account, and that this was the only basis on which he allowed the appeal.
Accordingly, I would grant leave to appeal. Having so decided, I now turn to consider the merits of the appeal.
The Appeal
The applicant submitted that the Judge fell into error in that, in assessing the financial penalty imposed by the magistrate, he took into account an irrelevant consideration, namely the loss to the respondent incurred by his payment to others to pursue an unlawful act on his behalf.
Counsel for the applicant advanced two submissions. First, counsel contended that it is not appropriate, when sentencing, for a court to take into account money lost in acquiring an item that is subsequently forfeited, when the effect of the forfeiture is merely to neutralise the benefit obtained from the commission of an offence. Second, counsel submitted that it is not appropriate to mitigate a fine that might otherwise have been imposed because an offender has lost money that he chose to invest in a criminal activity.
Mitigatory effect of moneys paid out in commission of offence
Section 10 of the Criminal Law (Sentencing) Act was designed to, and does, reflect the common law position. In R v Adami[3], Bollen J (with whom King CJ agreed) observed:[4]
Moreover, s 10 is no more than a section which declares what has always been the law. The Supreme Court of South Australia has always taken into account and had 'regard to' the matters mentioned in s 10 insofar as they or any of them was relevant in a particular case. I cannot think that any part of s 10 changes the law.
[3] R v Adami (1989) 51 SASR 229.
[4] R v Adami (1989) 51 SASR 229 at 233.
Section 10(1)(e) of the Criminal Law (Sentencing) Act provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(e) any injury, loss or damage resulting from the offence;
Ordinarily and most often, the sub-section is utilised by sentencing courts to give effect to considerations regarding injuries and harm suffered by the victim of an offence. My researches did not reveal, nor was counsel able to point to, any authority where this subsection, or a section to similar effect in another jurisdiction, has been interpreted to mean that the money paid out in the commission of an offence ought to be taken into account when sentencing for that offence.
In Gee[5], the Court of Criminal Appeal was asked to reconsider the approach of the sentencing Judge who had disregarded the appellant’s forfeiture of $10,000, $9000 being the appellant’s lawfully obtained savings used to purchase a quantity of cannabis and $1000 being profits obtained from the on-sale of that cannabis. Delivering judgment for the Court, King CJ observed:[6]
[I]t seems to me that it would have been quite wrong for the learned judge, in the circumstances of this case, to have mitigated the sentence which the crime otherwise merited by reason of the fact that the appellant has lost his money. It was said on his behalf that he had invested $9,000 of his lawful savings in the purchase of the cannabis, which he subsequently sold to Dickeson and Nisbet. If he did so, he invested his money in an unlawful enterprise, and had to take all the risks that are involved in the investment of money in criminal activity. If he lost that money, it is no more than he deserved for embarking upon the criminal enterprise. I think that it would be quite wrong, and indeed bordering on the farcical, for a judge to mitigate a sentence which he would otherwise impose because an offender had lost money which he had chosen to invest in criminal activity.
[5] R vGee (1988) 148 LSJS 286.
[6] R vGee (1988) 148 LSJS 286 at 287.
These remarks are apposite to the present case. The $6,800 expended by the respondent in hiring the two brush-cutters to clear the brush on his behalf is comparable to the money paid out by Gee to obtain the cannabis. The situation is also analogous to the circumstance where a thief hires the services of a third person to open a safe, and when sentenced in respect of the theft of the goods contained in the safe, is given credit for the money paid out to the third person who opened the safe. In the words of King CJ, such a situation would be “bordering on the farcical”.
The fact that the respondent’s conduct is theft but under a different name does not detract from the fact that it remains an illegal taking of the property of another. The respondent unlawfully obtained native vegetation, which he intended to on-sell for a profit. The money that he paid out in order to obtain the brush is money that he invested in a criminal enterprise. There is no reason in law or logic for him to be recompensed for that money. There is certainly no precedent to this effect.
The situation with respect to the respondent’s loss of monies paid out in the commission of the offending is to be distinguished from goods or money that is forfeited or confiscated. In this case, the respondent “forfeited” the brush, being the “fruits” of the crime that he had cut. The equipment used to obtain the brush was “confiscated”. The money paid out to hire the brush-cutters is in a different category. It was neither forfeited nor confiscated, except insofar as that money was used to obtain the brush. In this way, the money used to hire the brush-cutters is precisely the same as the money used to obtain the cannabis in Gee - that is, money used to obtain the goods in question unlawfully. As such, the monies paid out by the respondent in order to commit the offence ought not to have been taken into consideration by way of mitigation when determining the appropriate sentence.
Forfeiture
Section 10(1)(ka) of the Criminal Law (Sentencing) Act provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(ka)if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
For the reasons stated above, namely that the money paid out by the respondent in hiring the brush-cutters was not forfeiture, nor was it analogous to forfeiture, in my view section 10(1)(ka) has no application to this appeal. By way of contrast, the forfeiture of the tractors and trailer, being property of the respondent acquired and used for a lawful purpose but applied, in this case, to an unlawful purpose, is a matter properly taken into account under this paragraph.
In Carpentieri[7], Doyle CJ (with whom Martin and Besanko JJ agreed) observed:[8]
But what part does the forfeiture play in the sentencing process? It can only be one of the many factors to be considered. For example, if the forfeiture merely deprives the offender of the fruits of a crime, it may be of little significance, because an offender could hardly claim to receive a lesser sentence because the fruits of the crime have been lost. But here the forfeiture results in Mr Carpentieri suffering a significant detriment in addition to any judicially imposed sentence. The court can take account of this, although it cannot do so in a precise way. It would certainly not be appropriate to reduce the sentence by the amount of the forfeiture, even if some form of equivalence could be found. It is clear the Parliament intends forfeiture to be an additional detriment suffered by an offender in possession of property liable to forfeiture under the [Criminal Assets Confiscation Act 1996 (SA)].
[7] R v Carpentieri (2001) 81 SASR 164.
[8] R v Carpentieri (2001) 81 SASR 164 at [46].
The approach of the magistrate and of the single Judge on appeal in relation to the forfeiture of the equipment was consistent with that approach, and there has been no appeal from the decision of the Judge to confirm that forfeiture order of the magistrate. Such considerations can have no application to the payment of money to another for no other purpose than the purpose of committing the offence.
Conclusion
I would grant leave to appeal. I would allow the appeal. The orders setting aside the fine imposed by the magistrate and imposing a fine of $23,000 in lieu thereof ought to be set aside.
The order of the single Judge as to the costs of the appeal should be set aside. The respondent should be ordered to pay the cost of the appeal to the single Judge fixed at $150.00. The respondent should also be ordered to pay the appellant’s cost of the application for leave and of this appeal (excluding the attendance on the hearing before this Court) to be taxed.
VANSTONE J: The respondent was charged on complaint with having cleared, between June and August 2003, native vegetation (Broom Bush) contrary to s 26 Native Vegetation Act 1991 and taking a native plant from a reserve contrary to s 47(1)(a) National Parks and Wildlife Act 1972. After a trial before a magistrate he was convicted. Utilising s 18A Criminal Law (Sentencing) Act 1988, the magistrate imposed a fine of $30,000. He further ordered forfeiture of two tractors used to harvest the Broom Bush, as well as the harvest itself.
The respondent appealed against his conviction and penalty. A judge of this Court dismissed the appeal against conviction, but allowed the appeal against sentence. He did so on the basis that in fixing the monetary penalty the magistrate had not taken into account that the amount of $6,800 paid by the respondent to two persons to unlawfully harvest the vegetation had been lost to him. The judge proceeded to deduct that amount from the monetary penalty.
The application is said to raise a question of general principle, being whether monies expended in paying others to perform an unlawful act can or should be taken into account when determining the quantum of a fine to be imposed for that act. The applicant contends that no account of the appellant’s loss should have been taken. He seeks a recognition of the relevant principle and restoration of the monetary penalty fixed by the magistrate.
As the forfeitures were ordered pursuant to the Native Vegetation Act 1991, the Criminal Assets Confiscation Act 1996 (now replaced by the Criminal Assets Confiscation Act 2005) has no application. The Native Vegetation Act does not stipulate how the fact of forfeiture should be weighed in fixing penalty.
However, under s 10(1)(ka) Criminal Law (Sentencing) Act 1988 the court was obliged to have regard to the nature and extent of the forfeiture to be imposed, except where it merely neutralised a benefit obtained through the commission of the offence.
It seems clear in this case that the Broom Bush was such a benefit and the loss to the appellant was to be disregarded. However the forfeiture of the tractors was to be taken into account in determining sentence.
The monies paid out by the appellant were lost to the appellant by his own action, rather than by operation of any forfeiture order. In those circumstances s 10(1)(ka) did not apply. As a general rule and leaving aside any statutory obligation, it would seem that the loss of legitimate monies invested in an unlawful enterprise should not mitigate a sentence imposed in respect of that enterprise. R v Gee (1988) 148 LSJS 286 stands for that proposition. As a general statement of principle that would seem to be unexceptional. However the statutory regime which would apply today to the facts in Gee is very different to that then prevailing. The money seized by police from Gee represented not only the reported profit on the sale of cannabis, but also the original investment made by Gee, apparently using legitimate funds. To that extent there could be said to be a punitive and deterrent element in its forfeiture, such that account could conceivably be taken of the loss of that part of the forfeit. (See discussions in R v Carpentieri (2001) 81 SASR 164, 170-173; R v Kalache (2000) 111 A Crim R 152 (NSW CCA); NSW Crime Commission v Farah (2003) 142 A Crim R 108 (NSW Supreme Court, Adams J); R v Allen (1989) 41 A Crim R 51 (Vic CCA); R v Brough [1995] 1 NZLR 419, CA). However, the facts in this appeal render almost unidentifiable the legitimate monies invested. There is in this case even less of an argument for having regard to the forfeited Broom Bush than there was in respect of the money in Gee. The forfeiture merely neutralised a benefit accruing from the crime. Accordingly, it is unnecessary to descend to further discussion.
I consider that the learned judge on appeal was in error in taking into account the monies paid to the brush cutters. Furthermore, even if that loss was a relevant matter I do not think it could justify the simple subtraction of the amount paid from the monetary penalty. In this regard I refer to R v Errigo (2005) 92 SASR 562 per Doyle CJ at [43].
In the circumstances I consider it is appropriate to grant leave to appeal and to allow the appeal for the purpose of restoring the disposition determined upon by the magistrate. For these reasons I would join in the orders proposed by the other members of the Court.
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