Zakhour v The Queen
[2022] VSCA 63
•12 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0216
| JOCELYN ZAKHOUR |
| v |
| THE QUEEN |
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| JUDGES: | McLEISH and MACAULAY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 February 2022 |
| DATE OF JUDGMENT: | 12 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 63 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1509 (Judge Lyon) |
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CRIMINAL LAW – Appeal – Sentence – Where compensation orders and pecuniary penalty order made for same amount of money constituting loss and benefit – Appeal against pecuniary penalty order ‘in the same manner as if it were, or were part of, the sentence’ – Error in making pecuniary penalty order by failing to consider relevant matter – Whether error in making pecuniary penalty order reopens sentencing discretion – Despite error, no reasonable prospect Court would reduce total effective sentence – Criminal Procedure Act 2009, ss 3, 278, 280(1)(b) and 280(3)(a) – Sentencing Act 1991, ss 3 and 5(2A) – Confiscation Act 1997, ss 31, 58, 59 and 142 – R v McLeod (2007) 16 VR 682, R v El Cheikh [2004] VSCA 146, Ludeman v The Queen (2010) 31 VR 606, DPP v Anderson [2020] VCC 1627 considered – Leave to appeal refused – Sentence amended by discharge of pecuniary penalty order.
CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception – Blackmail – Extortion – Applicant derived money from offending after forming intimate relationships with victims met on Tinder – Whether finding made about use of Tinder as ‘hunting ground’ open to be made – Whether finding denied applicant natural justice – Whether sentence manifestly excessive – Clarkson v The Queen (2011) 32 VR 361 applied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Boston | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr C Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA
MACAULAY JA:
Jocelyn Zakhour, the applicant, pleaded guilty in the County Court to six charges of obtaining financial advantage by deception,[1] three charges of blackmail[2] and two charges of extortion (with threat to inflict injury).[3] She was sentenced on 22 September 2020 by Judge Lyon[4] after plea hearings on 30 July and 18 September 2020. The judge imposed a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and eight months. The applicant has sought leave to appeal her sentence.
[1]Crimes Act 1958 (‘Crimes Act’), s 82.
[2]Crimes Act, s 87.
[3]Crimes Act, s 27.
[4]R v Zakhour [2020] VCC 1509 (the ‘Reasons’).
In brief, the applicant was (at the time of offending) a 39-year-old woman who resided at Crown casino. On two occasions, in February 2018 and in June 2018, she ‘matched’ with two men via the online dating application Tinder (first Mr Vince Panagiotidis and then Mr Mark McCraith), formed relationships with them and obtained money from them by making up stories about needing funds to establish a primary production business. She later blackmailed and extorted them for more money threatening to implicate them in a supposed illegal business. She obtained nearly $800,000 from the two men. She repaid $6,100 to one of them and $73,000 to the other leaving outstanding $54,900 to Mr Panagiotidis and $655,700 to Mr McCraith, a total sum of $710,600.
In addition to imposing the sentences of imprisonment, the sentencing judge made a compensation order (by consent) pursuant to Part 4 of the Sentencing Act1991 (‘Sentencing Act’) and a pecuniary penalty order (‘PPO’) (which was opposed) under Part 8 of the Confiscation Act1997 (‘Confiscation Act’). Both the compensation order and the PPO were for the same sum, namely, $710,600.
The full details of the sentence, together with the compensation orders and PPO, are as follows:
Charge No Offence Maximum Sentence Cumulation 1. Obtain a Financial Advantage by Deception on 25 June 2018 [s 82 Crimes Act] 20 years* 20 months 6 months 2. Obtain a Financial Advantage by Deception on 25 June 2018 [s 82 Crimes Act] 20 years* 10 months 3 months 3. Obtain a Financial Advantage by
Deception between 26 June 2018 and 15 November 2018 [s 82 Crimes Act] (Rolled up charge)10 years 18 months 4 months 4. Obtain a Financial Advantage by
Deception on 29 June 2018 [s 82 Crimes Act]20 years* 10 months 3 months 5. Obtain a Financial Advantage by
Deception on 10 July 2018 [s 82 Crimes Act]10 years 2 months Concurrent 6. Blackmail on 14 August 2018 [s 87 Crimes Act] 15 years 21 months Base sentence 7. Obtain a Financial Advantage by
Deception on 17 July 2018 [s 82 Crimes Act]20 years* 18 months 4 months 8. Extortion with a threat to Inflict Injury on 29 October 2018
[s 27 Crimes Act]10 years 14 months 4 months 9. Blackmail between 1 November 2017 and 16 November 2018 [s 87 Crimes Act] 15 years 14 months 4 months 10. Blackmail on 14 November 2018
[s 87 Crimes Act]15 years 21 months 5 months 11. Extortion with a threat to Inflict Injury between 25 November 2018 and 11 December 2018 [s 27 Crimes Act] 15 years 9 months Concurrent * Continuing criminal enterprise offences – Sentencing Act ss 6H and 6I, Sched 1A. Total Effective Sentence: 4 years and 6 months’ imprisonment Non-Parole Period 2 years and 8 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 8 days Section 6AAA Statement: 6 years, non-parole period of 4 years Other relevant orders:
Compensation Orders in the total sum of $710,600
• $655,700 to Mark McCraith; and
• $54,900 to Vince Panagiotidis.
Pecuniary Penalty Order
• $710,600
The proposed grounds of the applicant’s appeal are as follows:
(a) Proposed ground 1: The learned sentencing judge erred in imposing both a pecuniary penalty order and compensation orders in respect of the financial advantage obtained by the applicant.
(b) Proposed ground 2: The learned sentencing judge erred in failing to take into account, as part of the sentence or as a form of additional punishment, that the pecuniary penalty order rendered the applicant liable to pay $710,600 more than the financial advantage she had obtained by her offending.
(c) Proposed ground 3: The learned sentencing judge erred in finding that the applicant used the dating application Tinder as a hunting ground to seek out and exploit her victims.
(d) Proposed ground 4: The learned sentencing judge denied the applicant procedural fairness in finding that the applicant used Tinder as a hunting ground to seek out and exploit her victims.
(e) Proposed ground 5: The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicant’s guilty pleas and other factors in mitigation.
The respondent conceded that the judge erred in making the PPO. It submitted that the PPO should be vacated. But in doing so, the respondent submitted that this would not reopen the sentencing discretion generally, because the removal of the PPO would simply bring the court’s orders into conformity with the judge’s intention. The respondent submitted that its concession and submissions deal with proposed grounds 1 and 2. For her part, the applicant contended that a finding or acceptance of error with respect to the PPO would reopen the whole sentencing discretion.
In any event, the respondent also disputed proposed grounds 3, 4 and 5.
Circumstances of the offending
Offending against Mr Panagiotidis
Mr Panagiotidis first had contact with the applicant in February 2018 on Tinder, and eventually met her in late March to April 2018.
The applicant told Mr Panagiotidis that her family owned ‘Chicken Stop’ takeaway stores. She told him that she had to go interstate to look after a family farm where they grew fruit and vegetables for supermarkets. The applicant told Mr Panagiotidis that she had just paid $40,000 to her workers in wages, and that she was stressed. The applicant also said that she had a property being built in Keilor.
Mr Panagiotidis told the applicant that he was a financial planner. One day when they went out for lunch, the applicant falsely told him that she was struggling to pay her workers at the farm and asked Mr Panagiotidis if he could help by lending her some money. Mr Panagiotidis was reluctant, but eventually transferred $50,000 into the applicant’s bank account on 25 June 2018 (charge 2 — obtain financial advantage by deception).
After this, the applicant contacted Mr Panagiotidis and falsely said that she wanted to purchase a piece of machinery for the farm. She requested $20,000. Mr Panagiotidis said that he did not want to lend her any more money. The applicant told him that ‘if you don’t help me with this it will take even longer to get your money back’. Mr Panagiotidis reluctantly transferred $11,000 to the applicant on 10 July 2018, which was the most he could afford. The applicant promised to pay him back the $11,000 in three weeks (charge 5 — obtain financial advantage by deception).
After three weeks, Mr Panagiotidis asked for his money back. The applicant continued to give Mr Panagiotidis false promises and excuses. He threatened to go to the police but did not do so immediately.
In January 2019, Mr Panagiotidis tried to get his money back, but the applicant ceased contact with him for a time. After sporadic contact, the applicant eventually spoke with him in May 2019. She told Mr Panagiotidis that she did not have the money, that she had just come out of gaol, and that police had questioned her about the $50,000 transfer. The applicant asked for Mr Panagiotidis’ bank account details so that she could pay $150 a week, but he refused and demanded all the money back.
Mr Panagiotidis was eventually contacted by police and made a statement of his dealings with the applicant.
Offending against Mr McCraith
On 6 June 2018, while the applicant was in communications with Mr Panagiotidis, and a few weeks before she received her first tranche of money from him, the applicant met Mr McCraith on Tinder. In late June, they started an intimate relationship.
Approximately a week after they first met, the applicant proposed a business idea to Mr McCraith to invest in the purchase of a blueberry farm. The applicant told Mr McCraith that she was putting in a majority of the money to get the business started. She told him that he would make a 300 per cent return on his investment. Mr McCraith saw on the applicant’s mobile phone what he believed to be a contract from a farmer in New South Wales near Lismore in Coffs Harbour. The representations made regarding the proposed business were false and fabricated by the applicant.
On the basis of this purported business venture, and commencing on the same day that Mr Panagiotidis first transferred money to the applicant, Mr McCraith transferred the following amounts to the applicant at her request:
(f) $110,000 on 25 June 2018 (charge 1 — obtain financial advantage by deception);
(g) $27,000 and $14,000 on 26 June 2018 to buy land for the business (part of charge 3 — obtain financial advantage by deception);
(h) $55,700 on 29 June 2018 to buy crops for the farm (charge 4 — obtain financial advantage by deception);
(i) $48,500 and $1,500 on 13 July 2018 to purchase cigarettes. The applicant had told Mr McCraith that the business was not only for blueberries but also for illegal cigarettes, and that the cigarettes would be driven from the Gold Coast to be sold in Melbourne (part of charge 3 — obtain financial advantage by deception);
(j) a total of $9,900 in seven transactions between 20 July and 13 August 2018 to pay for employees’ services, bail and legal expenses. The applicant had told Mr McCraith that the truck transporting the cigarettes had been stolen, and she needed money to pay the employees to find it. The applicant told Mr McCraith that when the truck was found, one of the employees was arrested, and that she needed money to pay for the employee’s bail and legal representation (part of charge 3 — obtain financial advantage by deception);
(k) $110,000 on 14 August 2018 and $90,000 on 17 August 2018. The applicant told Mr McCraith that the money was to get the farm working and to grow the tobacco, as well as to pay what was owed to the employees and what she had lost with the truck of cigarettes. The applicant told Mr McCraith that he would be implicated if they were caught, and threatened that the employees from the farm would get angry and find him (charge 6 — blackmail on 14 August 2018; and charge 7 — obtain financial advantage by deception on 17 August 2018);
(l) $5,400 and $11,000 on 14 and 18 September 2018 for the employees (part of charge 3 — obtain financial advantage by deception);
(m) a total of $13,000 in three transactions on 4, 5, and 16 October 2018 for the employees (part of charge 3 — obtain financial advantage by deception);
(n) $40,000 on 29 October 2018 to pay employees. The applicant told Mr McCraith that if he did not provide the money, the employees would find him and his family and harm them, telling him that ‘these people have ways’ (charge 8 — extortion with threat to inflict injury);
(o) a total of $40,000 in seven transactions between 1 and 16 November 2018, after the applicant told Mr McCraith that a Malaysian worker had threatened to go to the police if he was not paid more money (charge 9 — blackmail);
(p) $110,000 on 14 November 2018 to pay a supplier for planted tobacco seeds. The applicant told Mr McCraith that the suppliers would rip up the harvest if the money was not paid (charge 10 — blackmail);
(q) $43,000 on 15 November 2018 (part of charge 3 — obtain financial advantage by deception); and
(r) a total of $5,550 between 31 August and 7 November 2018 for living expenses, and $5,000 on 19 and 24 September 2018 to pay for a trip to Bali (not charged).
On 17 November 2018, the applicant requested a further $280,000 to harvest the crops, and told Mr McCraith that he would receive $600,000 as a return. Mr McCraith told the applicant that he could not get the money, and that she would have to get it from her family. The applicant told him that her family could not do it as they were in Dubai until February 2019.
The applicant continued making requests for money accompanied by threats. She sent regular messages via WhatsApp to Mr McCraith, including telling him to ‘tell your ex-wife you will kill yourself if she doesn’t give you the money’, and to take the money out of his superannuation. The applicant continued threatening Mr McCraith that if he did not give her the money, the workers would come to Melbourne and do something to him and his family.
From 24 November to 12 December 2018, Mr McCraith received approximately 240 emails from the applicant with threats toward his ex-wife, his children, and his mother. On 7 December 2018, Mr McCraith received further threats from the applicant and was in fear of the applicant and her associates arriving at his house, so he left the house over the weekend (charge 11 — extortion with threat to inflict injury).
On 11 December 2018, the applicant took a photograph from outside Mr McCraith’s house and sent it to him. She stayed in the vicinity of the address, entering a local bar and asking the barman for Mr McCraith’s whereabouts, and continued driving around the area until she sighted him. On the same day, the applicant sent Mr McCraith another email requesting $1,500, telling him that she did not have any money.
Mr McCraith attended the Moorabbin Police Station in late November 2018 where he reported the matter and gave details of meeting the applicant and the amount of money he had transferred to her bank account. He also provided bank statements identifying the transfers. Mr McCraith made police statements on 24 November and 12 December 2018, detailing how he had met the applicant and the business venture that she had proposed.
The applicant pleaded guilty prior to trial and there was no contested committal hearing.
Proposed grounds 1 and 2
On the first day of the hearing of the plea, the prosecutor informed the judge that he was instructed to seek a PPO, given the benefits the applicant had derived from her offending. The prosecutor also informed the judge that compensation orders were sought to reimburse the victims. Further, the prosecutor informed the judge that the procedure ‘is that the State, if and when that’s possible, would, relying on that order [the PPO], seek to enforce it if there should be a possibility of enforcing it, and then disperse that money to the victims.’
Because some repayments had already been made by the applicant to her victims, it was contemplated that there would need to be an adjustment to the quantum of the PPO and the compensation orders to reflect the amounts outstanding. When the judge questioned why there would be a PPO in addition to the two compensation orders, the prosecutor repeated that ‘those compensation orders will be satisfied by the enforcement of the pecuniary penalty order’.
The matter came back before the judge on the second day of the plea. On this occasion the prosecutor informed the judge of the two sums that had been paid by the applicant to the victims, for the purpose of quantifying the PPO and the compensation orders.
Counsel submitted that either the compensation orders or the PPO should be made but not both. To that, the prosecutor submitted that the ‘making of the pecuniary penalty order enables the State to enforce the penalty, enforce the compensation on behalf of the victim, and the compensation order would bind the State to turnover those proceeds to the victim’. Counsel informed the judge that the applicant would consent to the compensation orders and again submitted that it was not appropriate to make both the compensation orders and a PPO.
The transcript reveals that the judge was not given any assistance by way of reference to the scheme of the Confiscation Act or how its provisions interacted with the provisions for restitution and compensation under the Sentencing Act.
In his sentencing remarks, the judge addressed the issue of compensation orders and a PPO only after he pronounced the sentences for each of the offences, made orders for cumulation and pronounced a total effective sentence, and ordered the period to be served before the applicant is eligible for parole. To that point, the judge had carefully identified and weighed all the relevant factors bearing upon the sentences. In doing so, he did not expressly take into account or even make mention of the prospect of making any compensation order or PPO. Having announced the sentences, in his final remarks the judge continued:[5]
I have considered the application for a pecuniary penalty order pursuant to s 58 of the Confiscation Act and I have considered the compensation orders. There is no objection to the compensation orders being made but I note that [the applicant’s counsel] on your behalf on the last occasion objected to the making of the pecuniary penalty order.
Although I was provided with almost no assistance, it appears that each of the offences to which you have pleaded guilty as specified in the application are Schedule 2 offences; that is that they are either over $50,000 in value or together, which is the part that is relied on by the Crown, in combination the total of more than $50,000.
Given the plea of guilty to the offences and the circumstances in which you have been found guilty, it seems to me that it is appropriate to make the pecuniary penalty order. I will also make each of the compensation orders.
[5]Reasons, [99]–[101].
The actual terms of the orders made by the judge in relation to the compensation orders and the PPO were as follows:
Charge (/s) 1, 3, 4, 6, 7, 8, 9, 10, 11
Order that JOCELYN ZAKHOUR pay compensation in the aggregate sum of $655,700.00 as follows: — $655,700.00 to Mark McCraith.
Charge (/s) 2, 5
Order that JOCELYN ZAKHOUR pay compensation in the aggregate sum of $54,900.00 as follows: — $54,900.00 to Vince Panagiotidis.
Charge (/s) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
Order that JOCELYN ZAKHOUR pay a pecuniary penalty order [sic] in the aggregate sum of $710,600.00.
A number of issues arise from the applicant’s first two proposed grounds, and the arguments advanced upon them by the applicant and the respondent. The written cases filed by each party were supplemented by oral submissions that referred to statutory provisions and authorities which were not included in the written cases (nor had they been mentioned before the judge).
The issues arising are:
(s) whether a court has the power to order both a compensation order and a PPO in relation to the same amount of money constituting the relevant loss and benefit;
(t) if such a power exists, whether in this case the judge erred in making both orders;
(u) whether a PPO can be appealed; and
(v) if so, does a successful appeal of a PPO reopen the sentencing discretion generally?
The applicant submitted that the judge did not have power to order both a compensation order and a PPO for the same loss and benefit; the judge was wrong to do so; a PPO was appealable, and a successful appeal reopens the whole sentencing discretion. For its part, the Crown submitted that the judge did have the power to order both a compensation order and a PPO for the same loss and benefit; nevertheless, in the circumstances of this case, the judge’s discretion to do so miscarried and the PPO should be set aside; a PPO is appealable; but a successful appeal does not necessarily reopen the sentencing discretion, and it does not do so in this case.
Relevant statutory provisions
Part 4 of the Sentencing Act is headed ‘Orders in addition to sentence’. Section 86, which appears in Subdivision (2) of Division 2 of that Part, provides that a court that convicts a person of an offence may order the offender to pay to a person who has suffered loss of property as a result of the offence any compensation (not exceeding the value of the property lost) that the court thinks fit. Section 86AA requires the court, when convicting a person of an offence that involves loss of property as a result of the offence, to ask the prosecution whether an application will be made for compensation under s 86. In the County Court, an application for compensation may be made on behalf of the victim by the Director of Public Prosecutions,[6] which is what occurred in this case.
[6]Sentencing Act, s 85C.
The Confiscation Act was enacted for a number of purposes, including to preserve assets for the purpose of restitution or compensation to victims of crime.[7] The Confiscation Act provides a number of mechanisms for achieving its purposes including provisions for the making of restraining orders, freezing orders and the forfeiture of property. The ConfiscationAct also provides, in Part 8, for the making of PPOs following conviction.
[7]Confiscation Act, s 1(h).
Two schedules to the Confiscation Act list a number of offences, with those in Schedule 2 being the more serious. Section 58(1) relevantly provides that if an accused is convicted of a Schedule 2 offence, the Director of Public Prosecutions may apply to the Supreme Court or the court before which the accused was convicted of the offence for a PPO. Generally, an application can be made within six months of a conviction although that period may be extended with the court’s leave.[8]
[8]Confiscation Act, s 58(3).
Section 59(1) of the Confiscation Act then provides for the making of a PPO by reference to the value of the benefits[9] derived from the offending less, ‘if the court thinks it is desirable to take it into account’, any restitution or compensation paid or payable in relation to the offending. The provision is in these terms:
[9]Section 68 of the Confiscation Act elaborates on the method of assessing benefits in relation to Schedule 2 offences.
On any application under section 58(1) or (2), the court may −
(a)assess the value of the benefits derived by the accused in relation to the offence; and
(b)order the accused to pay to the State a pecuniary penalty equal to the value as so assessed less, if the court thinks it desirable to take it into account, any amount paid or payable by way of restitution or compensation in relation to the same conviction —
and must do so on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence.
By subsection 59(5) the court is required to ‘give priority to an application made under … Division 2 of Part 4 (compensation order) of the Sentencing Act 1991’ in relation to the conviction and may defer determination of an application for a PPO until the application under the Sentencing Act has been determined. The ‘priority’ referred to in that subsection appears to concern the precedence given to the order of determining the different applications.
Subject to the court having relevant monetary jurisdiction, a court may make a PPO by the consent of the parties.[10] Once an application for a PPO has been made, the accused and the State may settle the application by accepting a payment from the accused as restitution for stolen property or as compensation for loss or destruction of property.[11]
[10]Confiscation Act, s 60.
[11]Confiscation Act, s 60(2)(b) and (c).
A PPO is discharged if the relevant conviction is set aside, a court discharges it upon appeal under s 142 of the Confiscation Act or the pecuniary penalty is paid.[12] The PPO may be subsequently varied by application to the court that made the order, if a compensation order or restitution order that was taken into account in assessing the value of the benefits derived is later successfully appealed.[13] Any amount payable under a PPO is taken to be a civil debt due by the person to the Crown.[14]
[12]Confiscation Act, s 62.
[13]Confiscation Act, s 69.
[14]Confiscation Act, s 74.
Section 31 of the Confiscation Act — which appears in Part 2 concerning the making of restraining orders — also deals with the relationship between a PPO and an order for restitution or compensation made under the Sentencing Act. The section provides as follows:
(1) If —
…
(b)property is forfeited by or under this Act, or a pecuniary penalty order is made, in relation to the offence in reliance on which the restraining order is made; and
(c)an order for restitution or compensation is made under the Sentencing Act 1991 in relation to that offence or damages are awarded in relation to that offence —
the State must satisfy, subject to subsection (2), to the value of the property forfeited or the amount of the penalty paid (less conversion costs), the order for restitution, compensation or damages.
It is to be noted that paragraph (b) expressly qualifies the ‘offence’ as one in reliance on which ‘the restraining order is made’. No restraining order was or had been made under the Confiscation Act in relation to the applicant’s property or the proceeds of her offending.
Importantly, there are specific provisions in the Sentencing Act which prescribe the extent to which a court must or must not have regard to an order made under the Confiscation Act when imposing a sentence on a person convicted of an offence. Along with dealing with how a sentencing court should treat the existence of forfeiture orders, s 5(2A) of the Sentencing Act provides that in sentencing an offender a court –
(c)may have regard to a pecuniary penalty order made under [the Confiscation Act] to the extent to which it relates to benefits in excess of profits derived from the commission of the offence;
(d)must not have regard to a pecuniary penalty order made under [the Confiscation Act] to the extent to which it relates to profits (as opposed to benefits) derived from the commission of the offence;
In view of the issues raised by the parties concerning the power to appeal a PPO and the consequence of a successful appeal, it is necessary to also refer to some further provisions.
Section 142 of the Confiscation Act makes it clear that an appeal lies from the making of a PPO:
142 Appeals
…
(3)Without affecting any other right of appeal, a person against whom a pecuniary penalty order is made may appeal against that order in the same manner as if it were, or were part of, the sentence imposed in respect of the offence in relation to which the order was made.
There are no specific provisions in the Confiscation Act that provide the procedural machinery for an appeal against a PPO. But, by providing that a PPO may be appealed ‘in the same manner’ as if the PPO were the sentence or part of the sentence, s 142(3) brings into play the provisions of the Criminal Procedure Act 2009 (‘CPA’) that stipulate the manner by which a sentence may be appealed and the powers of the Court upon such an appeal.
Provisions allowing for appeal against sentence are found in Division 2, Part 6.3 of the CPA. With leave, a person ‘sentenced for an offence’ may appeal to the Court of Appeal ‘against the sentence imposed’.[15] Further provisions are made as to how the appeal is commenced,[16] the various ways in which the application for leave to appeal may be determined,[17] the various ways in which the appeal itself may (or must) be determined once leave is granted,[18] and the orders that may be made upon a successful appeal.[19]
[15]CPA, s 278.
[16]CPA, s 279.
[17]CPA, s 280.
[18]CPA, s 281.
[19]CPA, s 282.
By virtue of s 142(3) of the Confiscation Act, it appears that all of these provisions apply to an appeal against a PPO as if it were, or were part of, the sentence. Because (as we later conclude) a PPO is not ordinarily regarded as a sentence, some issues of construction arise when applying some of the provisions of Division 2, Part 6.3 of the CPA to a PPO. We will return to these in more detail when considering the consequence of a successful appeal of a PPO.
Does a court have power to make both a compensation order and a PPO?
The applicant submitted that the question whether or not the judge had the power to make both the compensation orders and a PPO in respect of the same sum turns upon whether the prosecutor was correct to submit that the State would satisfy the compensation orders from the proceeds of the PPO. Attention was therefore given to s 31 of the Confiscation Act, the fact that no restraining order was made in this case and a decision of a judge in the County Court, DPP v Anderson (‘Anderson’)[20] on the question.
[20][2020] VCC 1627.
Because, as will appear, we accept that the discretion exercised under s 59(1) of the Confiscation Act miscarried and that the PPO must be set aside, we agree that it is unnecessary to determine whether the prosecutor’s submission below was correct or whether the decision in Anderson was correct. Were it necessary to decide the point, however, in our view there was clear power for the judge to make both orders, whether the decision in Anderson was correct or not (which we need not decide). Section 59 of the Confiscation Act does not prohibit the making of both orders but in fact contemplates that both may be made in respect of the same conviction.
The decision in Anderson was to the effect that the provisions of s 31 of the Confiscation Act did not resolve the apparent problem of the duplication of liability when a PPO was made with respect to the same subject matter as that of a compensation order, in circumstances where no restraining order had been made over the remaining property. In other words, in that situation, the judge determined that there was no statutory mechanism to treat the satisfaction of the PPO as the satisfaction of the compensation order. The two orders, the judge considered, produced the unwarranted effect of creating a liability to pay the amount the subject of the offending twice. It should be noted that the judge in Anderson did not specifically address the question of power to make both orders, but merely declined to make a PPO in addition to a compensation order because of the outcome in that case.
Before this Court, the respondent appeared to accept that the issue raised by the applicant did bear upon the question of the power of the judge to order both a PPO and a compensation order in relation to the same amount. However, the respondent disagreed with the applicant’s statutory analysis and submitted that Anderson had been decided incorrectly. The respondent submitted that the question was moot because, in any event, the Crown conceded that the exercise of discretion in making the PPO in this case miscarried for other reasons, so that the question whether or not the Court had power to make both orders would not need to be determined.
The vital question raised by the text of s 59(1)(b) of the Confiscation Act is the extent to which the court ‘thinks it is desirable’ to deduct the amount paid or payable under a restitution or compensation order from the value of the benefits derived by the offender from the offence. No specific guidance is given as to how that assessment of desirability is to be made. At the least, consideration must be given to whether it is desirable to make a deduction. That consideration may include assessing the extent to which the two orders might create a problematic dual liability or whether the satisfaction of one will result in the satisfaction of the other.
This conveniently brings us to the second question.
Did the judge err in making the PPO?
Both parties agreed that the judge erred in making the PPO, although perhaps for different reasons. On the issue of error, for the purpose of proposed ground 2 the applicant assumed the existence of a power to make both orders but contended that the judge failed to take into account the effect of the duplication of liability for the one amount. The respondent was content to concede that the judge had not taken into account the relevant consideration — namely, whether it was ‘desirable’ when imposing a PPO to deduct some or all of the amount paid or payable under the compensation order. In substance, these two positions amounted to the same thing.
The transcript of the plea hearing revealed that the judge was initially disinclined to make the two types of orders. Ultimately, however, he appeared to act upon the fact that the offences to which the applicant pleaded guilty were Schedule 2 offences and that the net amount of benefit derived by her from the offending was $710,600. Those circumstances opened the gateway to the discretion available to the judge to make a PPO.
Beyond that, however, there was no evidence that the judge considered whether it was desirable to deduct some or all of the amount payable under the compensation orders from the benefit derived from the offending to arrive at the appropriate pecuniary penalty (if any). In other words, regardless of whether or not there may have been some proper basis for deciding not to make the deduction, the judge simply did not consider the vital question for the exercise of the discretion to order a PPO and, if so, in what particular sum.
It is for this reason that we agree with the submissions of both parties that the discretion to order a PPO miscarried and (subject to the answer to the next question) that the order should be set aside.
In arriving at this conclusion, we wish to emphasise — as the parties themselves submitted — that the judge was given no real assistance in navigating the somewhat complicated statutory provisions bearing upon the exercise of the discretion. Among other provisions, the judge was not directed to the provisions of s 5(2A)(c) and (d) of the Sentencing Act, a matter to which we will return when considering whether any successful appeal of the PPO reopens the entire sentencing discretion for the offences of which the applicant was convicted.
Can a PPO be appealed?
As recorded above, both parties submitted that there is a right of appeal against a PPO. Those submissions are correct. As noted, s 142(3) of the Confiscation Act makes it perfectly clear that a PPO may be appealed.[21] To repeat, a PPO may be appealed ‘in the same manner’ as if it were, or were part of, the sentence imposed in relation to the offence in relation to which the order was made.
[21]Other bases for appeal suggested by the applicant in her written submissions need not be considered.
To this point we have concluded that a PPO may be appealed and that, in this case, the judge erred in making the PPO. The respondent does not now seek a different PPO but is merely content to have the PPO discharged. But, because a PPO may be appealed ‘as if it were’ the sentence or part of the sentence, if a judge makes an error when imposing a PPO, what consequence does that error have for other aspects or parts of the sentence imposed for the offending to which the PPO relates? The applicant formulated this issue on the premise that, because of an error in imposing the PPO, leave to appeal should be granted and the appeal should necessarily succeed — thus leading to the question whether that success reopens the sentencing discretion generally. As will be seen, the assumed premise is not necessarily correct.
Does the successful appeal of a PPO reopen the sentencing discretion generally?
For reasons which we will explain:
(w) a PPO is not ordinarily to be regarded as a ‘sentence’ but may be appealed in the same manner as if it were, or were part of, the sentence, thereby engaging the sentence appeal provisions of the CPA;
(x) when applying the sentence appeal provisions of the CPA to an appeal against a PPO, one available course, in an appropriate circumstance, is to refuse leave to appeal despite there being an error in making the PPO, ‘amend’ the sentence by reducing or discharging the PPO, and otherwise leave the remainder of the original sentence intact; and
(y) in this case, it is appropriate to adopt that course: that is, to discharge the PPO but otherwise refuse leave to appeal against the sentences imposed on each of the 11 charges (including the orders as to cumulation).
(a) A PPO is not ordinarily to be regarded as a ‘sentence’ but may be appealed as if it was
In R v Tilev,[22] Batt JA (with Tadgell JA and Vincent AJA agreeing) remarked, by way of obiter dictum, that he did not think that a confiscation order made under the Crimes (Confiscation of Profits) Act 1986 (‘1986 Act’) was ‘part of the sentence, as is shown by the fact that such an order can be made well after the sentence’.[23] It was clear that his Honour was referring to any of the types of confiscation orders that may have been made under the 1986 Act. In 1997, the Confiscation Act was enacted. By its provisions, the 1986 Act was repealed and provisions for making confiscation orders were re-enacted in the new legislation.
[22][1998] 2 VR 149.
[23]Ibid 153.
Consistently with these observations, and confining ourselves for present purposes to a PPO, there are numerous indicia that such an order is not ordinarily to be regarded as forming part of the sentence. They include:
(z) a PPO need not be made by the sentencing judge;[24]
[24]Confiscation Act, s 58(1) and (2).
(aa) a PPO can be made after the sentence has been imposed;[25]
[25]Confiscation Act, s 58(3).
(bb) a PPO can be made by the consent of the offender and prosecution;[26]
[26]Confiscation Act, s 60.
(cc) an application for a PPO can be settled without reference to a court;[27]
(dd) a PPO produces a civil debt to the Crown;[28] and
(ee) the provisions of s 5(2A) of the Sentencing Act govern the circumstances in which a sentencing judge may take into account the existence of a PPO on sentencing the offender (ie, as an external factor that bears upon the sentence).
[27]Confiscation Act, s 60(2).
[28]Confiscation Act, s 74.
The text of s 142(3) of the Confiscation Act which provides for an appeal against a PPO is, in our view, consistent with this analysis. As mentioned, it provides for a right of appeal against a PPO ‘in the same manner as if it were, or were part of, a sentence’. That provision is not to be taken to mean that a PPO is a sentence or part of a sentence. Rather, that provision merely provides the machinery for an appeal by permitting one to take place as if the PPO were a sentence or part of a sentence. In other words, it is a deeming provision.[29] Especially by employing the words ‘as if’, s 142(3) contains implicit recognition that, otherwise, a PPO is not by nature a sentence or part of a sentence.
[29]Cf Markiewicz v Crnjac [2021] VSCA 290, [107ff] (Emerton, Sifris JJA and Macaulay AJA).
Aside from s 142(3) of the Confiscation Act, a PPO would not fall within any of the express categories of the definition of ‘sentence’ specified in s 3 of the CPA. Among the included categories of that definition are particular types of orders made under the Sentencing Act, the Sex Offenders Registration Act 2004, the Road Safety Act 1986 and the Children, Youth and Families Act 2005. Orders made under the Confiscation Act are not listed among the included categories of orders that fall within the definition of a sentence. Although not of itself determinative of the proposition, this observation is consistent with the view that a PPO is not ordinarily to be regarded as a sentence or part of a sentence.
In contending that a PPO is itself a sentence or part of a sentence, the applicant, at least initially, relied upon the fact that the definition of ‘sentence’ in s 3 of the CPA, while not specifically referring to PPOs made under the Confiscation Act, is an inclusive definition. Thus, the applicant argued, the definition does not exclude the possibility that a PPO also forms part of a sentence. Further, the applicant submitted that in ordinary parlance a sentence is a punishment, and an order requiring the applicant to pay $710,600 clearly constitutes a punishment. Alternatively, the applicant submitted that a PPO is a sentence because it falls within the definition of ‘fine’ in s 3 of the Sentencing Act, is therefore within Part 3B of that Act, and is thus picked up by the definition of sentence in s 3 of the CPA.
It is not clear whether the applicant intended to persist with any of these arguments in light of s 142(3) of the Confiscation Act. But, to the extent that she did, we are not persuaded that any of these arguments justify treating a PPO as a sentence or part of a sentence for the purposes of the CPA. In particular, the argument that a PPO is a ‘fine’ under the Sentencing Act assumes that a PPO falls within the category ‘money payable by way or restitution or compensation’. It does not. Part 4 of the Sentencing Act provides for orders of that nature. Section 59(1)(b) of the Confiscation Act indicates that a PPO may be made exclusive of any amount payable for restitution or compensation in relation to the relevant offending.
From this analysis of the relevant statutory provisions, it is only s 142(3) of the Confiscation Act that equates a PPO with a sentence. Additionally, it is only for the purpose of providing a mechanism for an appeal that a PPO is equated with a sentence.
(b) Applying the sentence appeal provisions of the CPA to an appeal against a PPO
Having reached this point, it is necessary to consider in more detail the operation of the sentence appeal provisions of the CPA as they apply to an appeal against a PPO.
The first step is the determination of leave to appeal. Section 280 provides:
Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court of Appeal considers ought to be made.
Note
If an application for leave to appeal is heard and refused by a single Judge of Appeal under section 315(1), section 315(2) entitles the applicant to have the application determined by the Court of Appeal.
As s 280(1)(a) and (2) state, even if there is a reasonably arguable ground of appeal, the Court of Appeal may refuse an application for leave to appeal if there is no reasonable prospect it would impose a less severe sentence than the one first imposed. Although it is possible that a PPO may be the only order made in relation to a particular offence upon conviction, that outcome is likely to be unusual. Typically, a PPO would, as in the current case, be imposed together with one or more sentencing dispositions in respect of an offence or a number of offences.
Where a PPO is ordered in combination with other sentencing dispositions for the relevant offence or offences, it is not, in our view, to be considered as a sentence itself, separate from the other sentencing dispositions. That construction follows from the PPO being equated either with the sentence or part of the sentence in s 142(3) of the Confiscation Act. In a situation where it is imposed along with, for example, a period of imprisonment, the PPO is treated as if it were ‘part of the sentence’.
In any event, whether the PPO is imposed as the only order or as a part of a broader sentencing disposition, if there is a reasonably arguable ground that the PPO was made in error such that it was likely the PPO would be reduced or discharged, the question is whether, in that situation, there is a reasonable prospect that a ‘less severe sentence’ than the first sentence would be imposed. Treating the PPO as the sentence or part of the sentence (depending on whether the order was the only disposition or one of two or more dispositions), a reduction in the amount of the PPO or its discharge would mean that the resulting sentence would be ‘less severe’ than the first. No power would exist in that case to refuse leave to appeal under s 280(1)(a) of the CPA.
Next, s 280(1)(b) allows the Court of Appeal to refuse leave to appeal, despite there being an error in ‘the sentence first imposed’, if there is no reasonable prospect that the Court would ‘reduce the total effective sentence’. Whereas the reference to sentence in the phrase ‘sentence first imposed’ is apt to include a PPO for the reasons already given, the same does not apply in relation to the expression ‘total effective sentence’ in that paragraph.
Section 280(1)(b) and the accompanying definition of ‘total effective sentence’ in s 3 were introduced into the CPA following Ludeman v The Queen (‘Ludeman’).[30] In Ludeman, the Court determined, amongst other things, that, in respect of custodial sentences, the reference to a sentence in the CPA, including in s 278, was to an individual custodial sentence and any consequential orders for cumulation/ concurrency imposed on the same occasion, but not what was commonly called the ‘total effective sentence’.[31] The definition of ‘total effective sentence’ in s 3 effectively reflects the commonly understood meaning of the phrase. With its reference to cumulation and concurrency[32] — meaningful only in relation to custodial sentences — a reference to total effective sentence is not apt to embrace a PPO as a ‘part’ of it.
[30](2010) 31 VR 606; [2010] VSCA 333 (Warren CJ, Buchanan, Nettle, Ashley and Redlich JJA).
[31]Ibid 614–5 [55] (Ashley and Redlich JJA).
[32]Sentencing Act, s 16.
Adopting this analysis, where a PPO has been imposed in relation to a number of offences for which individual custodial sentences have also been imposed, resulting in a total effective sentence as defined, an error in any given sentence by reason of there being an error in the PPO will not necessarily lead to leave being granted to appeal the sentence. Leave to appeal may be refused if there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite the error in the sentence (incorporating the PPO) first imposed.
That in turn raises the question whether the error in the PPO has an effect on the total effective sentence. The existence of a PPO might have influenced the total effective sentence in a particular case because, as s 5(2A) of the Sentencing Act provides, in some circumstances a PPO must be taken into account when fixing an individual sentence for an offence and in other circumstances it must not. Whether the PPO has influenced the total effective sentence in any given case will turn upon an analysis of the facts in that case.
Moving finally to s 280(3) of the CPA, if the Court of Appeal refuses leave because there is no reasonable prospect it would reduce the total effective sentence despite there being an error in the sentence first imposed, it may nonetheless ‘amend’ the first imposed sentence and substitute it with a ‘less severe’ one if the Court considers it appropriate to do so. It might also make any other order it considers ought to be made. To date, the reported cases which have applied this provision have done so in relation to other kinds of error.[33] But where the Court would not otherwise reduce the total effective sentence, there does not appear to be any good reason why the power of amendment in s 280(3) would not apply to an error in making a PPO as a part of a sentence. The power thus enables the Court to amend an individual sentence (or set of sentences) first imposed by reducing or discharging the erroneous PPO and otherwise leaving the original sentence (or sentences) intact, thereby imposing a less severe sentence.
[33]Gladigau v The Queen [2015] VSCA 204 (Whelan and Beach JJA) (error in the estimate value of stolen goods and error exceeding the maximum penalty); Pang v The Queen [2019] VSCA 56 (Priest and Niall JJA) (error regarding pre-sentence detention); Oleyar v The Queen [2015] VSCA 134 (Ashley and Weinberg JJA) (error exceeding the maximum penalty).
On the other hand, should leave to appeal a PPO be granted under s 280, the Court ‘must’ allow the appeal if satisfied that there is an error in the ‘sentence first imposed’ and a ‘different sentence’ should be imposed.’[34] Again, treating the PPO as part of the sentence first imposed, if the PPO should be reduced or discharged to correct an error, that circumstance would satisfy the Court that a ‘different’ sentence (namely, one without the PPO or with a reduced PPO) should be imposed. Thus, the appeal would be allowed.
[34]CPA, s 281(1).
If the Court allows the appeal, the Court must either set aside the sentence first imposed and, if not remitting it to the original court, impose ‘the sentence, whether more or less severe, that it considers appropriate’ and make ‘any other order’ it considers ought to be made.[35] In terms of a successful appeal against a PPO, such new sentence could comprise any appropriate sentencing disposition along with a reduced PPO, or without any PPO.
[35]CPA, s 282(1), (2).
None of these alternatives involve the conclusion that error in a PPO automatically reopens the sentencing discretion generally. Instead, each case needs to be considered on its merits.
(c) The appropriate course to adopt in this case
The question that presents itself is whether there is a reasonable prospect that the total effective sentence would be reduced by virtue of the error in making the PPO. In this case, the error which the judge made when imposing the PPO, as described above, did not (and indeed, had no legal capacity to) affect or influence the total effective sentence imposed for the 11 offences in relation to which the PPO was imposed. To explain why, it is necessary to give some further explanation of the interaction between the PPO and the sentences imposed for each offence.
The interaction between confiscatory legislation and sentencing has long been regarded as complex. When introducing amendments to the Sentencing Act in 1991, the Attorney-General acknowledged ‘difficulties in reconciling confiscation proceedings with the various aims of the sentencing process’.[36] It was those amendments that, amongst other things, inserted s 5(2A) in the Sentencing Act including paragraphs (c) and (d) extracted above at [43].
[36]Crimes (Confiscation of Profits) (Amendment) Bill, Second Reading Speech, 10 October 1991, p 1154.
In R v McLeod (‘McLeod’),[37] a case concerning the potential impact on a sentence following the forfeiture of property occurring after the sentence was imposed, the Court of Appeal made these observations:[38]
There has been limited judicial analysis of when and how confiscatory legislation should affect sentencing. This may reflect the great variation in circumstances, relating both to the acquisition of the forfeited property and to its use in the commission of the crime, and the variations which exist in the statutory regimes which provide for confiscation. Difficult questions arise as to how, as a matter of proportionality, forfeiture legislation should interact with the judicial imposition of sentences.
[37](2007) 16 VR 682; [2007] VSCA 183 (Maxwell P, Redlich JA and Habersberger AJA).
[38]Ibid 685 [15] (footnote in original).
In general terms, the Court explained that the disgorgement of unlawfully obtained gains does not constitute a penalty, whereas any requirement to disgorge lawfully acquired property will amount to additional punishment and may need to be considered when fixing a sentence. The Court put it this way:[39]
The obligation to disgorge the proceeds of crime is not a penalty. Disgorgement is necessary to prevent unjust enrichment. Forfeiture of the proceeds of crime has, nevertheless, been treated as a mitigating factor in some cases. Thus it has been said that pecuniary penalty orders which relate entirely to profits from the unlawful activity constitute an additional punishment.
Disgorgement of benefits apart, forfeiture is relevant to penalty. At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor in sentencing, since it places the offender in a worse position than he/she was before the commission of the offence. That is, forfeiture has a punitive or deterrent effect.
[39]Ibid 685 [16], [17] (citations omitted).
By reference to ‘profits’ and ‘benefits in excess of profits’, paragraphs (c) and (d) of s 5(2A) of the Sentencing Act draw the distinction as to whether an offender is left in the same or a worse position by reason of the imposition of a PPO. The practical effect of these terms was explained by Vincent JA (with Batt and Eames JJA agreeing) in R v El Cheikh,[40] again by reference to the Attorney-General’s 1991 second reading speech:[41]
[40][2004] VSCA 146 (Vincent JA with Batt and Eames JJA agreeing).
[41]Ibid [11], [12].
In his second reading speech, when introducing this provision in the Sentencing Act in 1991, the Attorney-General said:
“…
In particular, on occasions courts have been reluctant to make confiscation orders where to do so would impose a punishment which under general sentencing principles might be regarded as disproportionate or unduly harsh. The Bill resolves that difficulty by providing that, where the effect of the confiscation order is to disgorge the profits gained from the offence, it is not to be taken into account when a sentence is being imposed. This is because in divesting offenders of ill-gotten gains, the order simply restores them to the position they were in before the offence was committed. However, where the order relates to previously owned property used in connection with the offence, or otherwise goes further than merely disgorging ill-gotten gains, the court will be able to take this into account in fixing sentence.”
Crimes (Confiscation of Profits) (Amendment) Bill, Second Reading Speech, 10 October 1991, pp. 1153-1154.
Accordingly, where and to the extent that a pecuniary penalty order constitutes a punishment and not simply the taking away of the profits of crime, a sentencing judge can take that punishment into account in the determination of an appropriate sentence in the circumstances.
Thus, s 5(2A)(d) of the Sentencing Act describes a situation where, by reason of the PPO, the offender is placed in the same financial position as they were in before committing the offence, by being deprived of ill-gotten gains. In such a situation the sentencing judge must not have regard to the PPO when sentencing the offender. On the other hand, the situation described in paragraph (c) is one in which the offender may be placed in a worse position than they were in prior to the offence. That will occur to the extent to which the offender is deprived of property which he or she lawfully owned prior to the offence, or the order otherwise goes beyond merely depriving the offender of ill-gotten gains. In such a situation the sentencing judge may have regard to the PPO when sentencing the offender.
As the Court explained in McLeod,[42] where a court is permitted to take into account a confiscation order in sentencing an offender, the onus ordinarily rests on the offender to establish how and to what extent the order should be regarded as a mitigating factor. A sentencing judge is not required to speculate as to whether or to what extent the property in question was lawfully acquired or alternatively represented property which the offender derived from his or her offending.
[42](2007) 16 VR 682, 689 [29]–[30]; [2007] VSCA 18.
In this case, apart from the arguably punitive effect of duplicating a liability for $710,600 by making both a PPO and compensation orders, the applicant did not contend (either before the judge or before this Court) that the amount of $710,600 comprised anything other than the profits (as opposed to benefits in excess of profits) derived from the commission of the offences within the meaning of those terms in paragraphs (c) and (d) of s 5(2A) of the Sentencing Act. In other words, apart from the duplication argument, nothing was advanced to say why the PPO should have been regarded as a mitigating factor.
That being so, had the judge fixed a PPO by reference only to the profits of the offending, after a proper exercise of the discretion under s 59(1) of the Confiscation Act, he would have been precluded by s 5(2A)(d) of the Sentencing Act from having regard to the PPO in sentencing the applicant.
Further, it is clear from his sentencing remarks that the judge did not have regard to the PPO for the purpose of fixing the sentences for each of the 11 offences or for determining the extent of cumulation of the sentences or for setting the non-parole period. All of the matters taken into account in making those decisions were clearly and expressly articulated before the sentences were pronounced. Mention of the PPO and the considerations lying behind it (as extracted above at [29]) was only made once the sentences were determined.
It follows that the judge did not take, nor should he have taken, the existence of the PPO into account when sentencing the applicant.
In these circumstances, it follows that the PPO did not have any bearing on the total effective sentence. The discharge of the PPO due to error made when imposing it provides no reason of itself for interfering with the total effective sentence.[43] Leave to appeal is therefore properly refused under s 280(1)(b) of the CPA.
[43]Indeed, had the judge taken the PPO into account in sentencing the applicant, logically it could only have been as an additional mitigatory factor. The discharge of the PPO while keeping the rest of the sentences intact could therefore only favour the applicant.
For these reasons, despite error in the PPO, we will not grant leave to appeal in relation to proposed grounds 1 and 2. However, we will amend the sentence pursuant to s 280(3) of the CPA by discharging the PPO, but (subject to the remaining proposed grounds) leave the remaining custodial sentences, orders for cumulation, non-parole period and compensation orders intact.
Proposed grounds 3 and 4
In his sentencing remarks, the judge considered the gravity of the applicant’s offending. In that context his Honour remarked:[44]
[44]Reasons, [29] (emphasis added).
Your offending represents a serious example of these types of offences:
·through your overall offending conduct you obtained a very significant sum of money - as I have said, $728,700 from Mr McCraith and $61,000 from Mr Panagiotidis - so just short of $790,000;
·from that sum you received over $259,000 from Mr McCraith through your blackmail demands and about $40,000 in response to your extortion threats;
·the use of blackmail and extortion threats against Mr McCraith must be viewed as an escalation of your conduct in attempts to obtain money from him;
·overall, the offending was persistent, continuous and, to an extent, overlapping over a period of about five months. The deceptions were continuous and repeated over this period. You made three blackmail demands of Mr McCraith between 14 August and 14 November and two extortion threats to Mr McCraith between late October and late November 2018; and
·next I consider the seriousness of your offending. Your offending spanned across two victims; men you had met on Tinder. I can only conclude that you used the dating app as a hunting ground to seek out and exploit your victims. You were offending against each of them concurrently. On one day, 25 June 2018, you received $110,000 (Charge 1) from Mr McCraith and $50,000 from Mr Panagiotidis (Charge 2).
Proposed grounds 3 and 4 focus on the emphasised comment made in the last of the bullet points above, namely, that the judge concluded that the applicant ‘used the dating app as a hunting ground to seek out and exploit [her] victims’.
By proposed grounds 3 and 4, the applicant makes two complaints of error:
(ff) first, that the conclusion was not open to be made on the facts (proposed ground 3); and
(gg) secondly, that because the finding amounted to an aggravating feature of the applicant’s conduct, natural justice required the judge to raise the prospect of making such a finding with the parties but he failed to do so. In denial of procedural fairness, the applicant was not afforded an opportunity to address the matter in circumstances where there were facts available that tended against such a finding (proposed ground 4).
The respondent contended that the conclusion the judge drew was well open to him (beyond reasonable doubt) and, having regard to other findings of fact that are not disputed, it was difficult to see how a different conclusion could have been reached. Further, the respondent submitted, the point was not of such a nature as to amount to a breach of the obligation to afford procedural fairness.
Focusing on the first complaint, the applicant argued that the judge placed too much emphasis on the fact that the same online dating app was the means by which the applicant met the two men, that for a time she had concurrent relationships with them and that the first payments of money from both of them occurred on the same day. The applicant argued that the judge ignored the possibility that the applicant could be (genuinely) dating two persons at the same time. Pointing out that any finding of fact of an adverse nature in the sentencing process must be made beyond reasonable doubt, the applicant contended that it was simply not open to the judge to conclude that the applicant used Tinder as a ‘hunting ground to seek out and exploit’ her victims.
The respondent sought to place the judge’s remarks about the ‘hunting ground’ in the context of other findings that his Honour made and which were not contested by the applicant. Those included that the applicant was, in this period, in the grip of a gambling addiction,[45] that the offending was callous and ruthless and that it was carried out under the ‘ruse’ of an intimate, romantic or close personal relationship.[46] The respondent particularly drew attention to this passage, following closely upon the passage extracted above:[47]
The bigger point with Mr Panagiotidis, and also felt so acutely by Mr McCraith, is the vulnerability each felt that you so callously and ruthlessly exploited them through the ruse of an intimate, romantic or close relationship. No one likes to feel they have been duped. Whether or not it amounts to a breach of trust as the Crown contended in each case, it was a ruthless exploitation and you have broken the ability of both men to be able to trust those around them.
[45]Reasons, [64].
[46]Reasons, [31].
[47]Ibid.
Seen in this light, the respondent argued that the possibility that the applicant was genuinely looking for love, but instead decided immediately and simultaneously to start defrauding the two men she met, did not bear serious analysis.
For these reasons the respondent argued that it was well open for the judge to conclude, beyond reasonable doubt, that the applicant had used Tinder as a hunting ground to seek out and exploit her victims. In so arguing, the respondent added that the judge was entitled to be given some leeway to employ a pejorative rhetorical flourish to underscore the gravity of the applicant’s callous offending.
It was not in dispute that a fact to be relied upon adversely to the offender in the sentencing process requires proof beyond reasonable doubt.[48]
[48]R v Storey [1998] 1 VR 359; (1998) 89 A Crim R 519 (Winneke P, Brooking, Hayne and Callaway JJA and Southwell AJA).
Much depends on the real substance of the adverse finding to be attributed to the judge. At its highest, as the applicant puts it, it might amount to a finding that the applicant had consciously formed relationships with the two men for the purpose of exploiting them, and had planned the offending prior to initiating contact with her victims.
We are not persuaded that his Honour’s conclusion — which could reasonably be construed as incorporating a rhetorical flourish — should be driven that far. Rather, viewed in context with his later remarks, the effective adverse substance of his finding was that through the two relationships, each formed by means of the same online dating app, the applicant pursued a deliberate course to exploit the vulnerability of the two men who believed themselves to be engaged with her in a genuine, romantic and close relationship, and she was callous and ruthless in the execution of that exploitation. The offending, by its very nature and given the period over which it occurred, necessarily involved a degree of conscious invention and planned implementation. That said, in respect of the blackmailing demands in particular, the judge acknowledged that they were ‘neither sophisticated nor particularly planned’.[49]
[49]Reasons, [33].
Assuming it to be in dispute,[50] we consider that it was well open to the judge to conclude beyond reasonable doubt that the relationships with the two men were — or at least became — a ruse used by the applicant to exploit them. That conclusion can most confidently be drawn with respect to Mr McCraith. By the time the applicant was in contact with him, she had already sought to exploit Mr Panagiotidis in the context of an apparently genuine relationship. Moreover, the applicant proceeded to exploit Mr McCraith very soon after she had commenced that relationship. Having reached that conclusion in relation to Mr McCraith, it was well open to the judge to reason beyond reasonable doubt that the intimate relationship with Mr Panagiotidis was, or had also become, the means by which the applicant callously pursued a course to exploit him. That is aptly called a ‘ruse’.
[50]In oral submissions in reply, the applicant submitted that a challenge to the finding that the relationships were a ‘ruse’ was necessarily embraced by the challenge to the finding about the use of Tinder as a ‘hunting ground’.
Taking into account all of the findings to which the respondent alluded and acknowledging some leeway to sentencing judges to express themselves somewhat rhetorically, we reject the submission that the judge’s conclusion, fairly and realistically understood, amounted to error.
That brings us to the applicant’s second complaint (proposed ground 4). The force of this complaint is undermined by the conclusion we have come to about the real effective substance of the judge’s finding of an aggravating nature associated with the impugned passage.
It may be accepted that, on the plea, there was no express mention of the applicant having ‘duped’ her victims or that the relationships she formed with them became a ‘ruse’ used by her to exploit them. But that does not mean that the question of the sincerity of her relationships, and her exploitation of them, was not squarely raised on the plea. In particular, the prosecutor submitted that the applicant’s conduct toward the two victims involved a breach of trust. The applicant herself wrote a letter of apology which was before the judge in which she referred to having broken the trust of the victims and to having hurt them badly.
In our view the applicant was not deprived of any opportunity to address the judge in respect of the nature of the applicant’s relationship with the two men, her true intentions with respect to those relationships or any significant aggravating feature concerning her exploitation of those relationships. The prospect that the judge might conclude that the applicant had engaged in a ruse in carrying out her romantic relationships with the two men, and had thereby exploited them in a calculated way, was inherent in the nature of the offending and the issues before the judge on the plea. We reject the contention that the applicant was denied procedural fairness.
It follows that we consider that the judge made no error of the kind contended by proposed grounds 3 and 4.
Proposed ground 5
Under the final proposed ground the applicant contended that the individual sentences, orders for cumulation, total effective sentence and non-parole period are all manifestly excessive having regard to the applicant’s guilty plea and other factors in mitigation. To succeed on this proposed ground, the applicant must persuade this Court that the sentence imposed is wholly outside the range of sentencing options available to the sentencing judge, a requirement described as ‘stringent’ and ‘difficult to satisfy’.[51]
[51]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
We can be brief in addressing this ground. We are far from persuaded that the sentence imposed in this case was not reasonably open to the sentencing judge giving proper weight to all the relevant circumstances of the offending and of the offender.
In her submissions, both oral and written, the applicant revisited the various factors which the sentencing judge took into account. These included the circumstances of the offending, the maximum penalties prescribed, the applicant’s motivation for offending, her difficult personal background, her prospects of rehabilitation, her guilty plea and evidence of remorse, the application of limbs 5 and 6 in R v Verdins (‘Verdins’),[52] and considerations of totality. In conclusion, the applicant submitted that, in all the circumstances and consistently with the principle of parsimony, the judge ought to have considered either a community correction order or a lesser sentence.
[52](2007) 16 VR 269; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA).
We agree with the judge that this was a serious example of this type of offending for the reasons set out in the five bullet points in the extract at [96][53] above. Nevertheless, the judge accepted that the blackmail and extortion demands were neither sophisticated or planned, and that the applicant did not intend or have the means to carry out the menaces she threatened. The judge concluded that while the offending was inextricably linked to the applicant’s gambling addiction, that addiction or any of the applicant’s other diagnosable psychological disorders should not be used to moderate her moral culpability. That reasoning was not challenged. Finally, the judge took into account the applicant’s plea of guilty, that her prospects for rehabilitation were good and, whilst it was late in coming and was relatively early in its development, remorse was nonetheless beginning to be exhibited.
[53]Reasons, [29].
Having regard to the total sum of money involved, the exploitation of two victims and the impact of the offending upon them, the period of time over which the offending continued, the nature of the blackmail and extortion threats themselves and the maximum penalties for the offences, a total effective sentence of four years and six months’ imprisonment could not on any view be regarded as wholly outside the sentencing range reasonably open to the judge. By imposing a non-parole period of two years and eight months, the judge clearly paid due regard to the applicant’s rehabilitation prospects and such allowance as was appropriate under limbs 5 and 6 of the Verdins principles.
In our view the individual sentences, orders for cumulation and the non-parole period actually imposed are well within range.
There is no merit in proposed ground 5.
Conclusion
Leave to appeal is refused in respect of all grounds. However, as explained above, the sentences should be amended under s 280(3)(a) of the CPA by discharging the PPO.
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