Thus the right of appeal conferred on the DPP by the 1987 Act is in the same terms as that conferred on a person against whom a pecuniary penalty order is made.
14 Although no time limit is expressed in the 1987 Act within which the right of appeal against a pecuniary penalty order may be exercised, the section proceeds on the basis that the procedural rules of the court to which the appeal is made will apply. This is inherent in those provisions of s 100 that prescribe that the right of appeal is to be exercised "in the same manner as if" the pecuniary penalty order were a sentence imposed on the person the subject of the order. As a consequence s 100 is not to be construed as conferring a right of appeal without limitation as to the time within which such right may be exercised.
15 In New South Wales an appeal by a convicted person against his or her conviction lies to the Court of Criminal Appeal. Such appeals are regulated by the Criminal Appeal Act 1912 (NSW). The Criminal Appeal Act 1912 (NSW) provides for the exercise of the right of appeal "within 28 days after the conviction or sentence" (s 10(1)(a)), although the court may extend the time within which a notice of appeal may be given (s 10(1)(b)).
16 Under the 1987 Act a pecuniary penalty order is defined to mean an order made under s 26 of the Act (see definition in s 4). The legislative scheme for the making of pecuniary penalty orders depended on "the commission of an offence" (s 26), but the order was able to be enforced as if it were an order made in civil proceedings instituted by the Commonwealth and the amount included in the order was taken to be a judgment debt (s 26(9)). The assessment of the value of the benefits derived from the commission of an offence was required to be made in accordance with s 27.
17 The Proceeds of Crime Act 2002 (Cth) (No 85, 2002; the 2002 Act) was assented to on 11 October 2002 and came into force on 1 January 2003 (s 2). The objects of the 2002 Act are set out in s 5. They are broader and more expansively expressed then those of the 1987 Act (s 3). The 2003 Act also provides for bases for the making of restraining, forfeiture and pecuniary penalty orders that are different from and wider than those provided for in the 1987 Act. In so far as pecuniary penalty orders are concerned the provisions of the 2002 Act (Part 2-4, ss 116 to 150) are much more draconian than those in the 1987 Act. For example, conviction of an indictable offence is no longer necessary.
18 Under s 116, it is no longer necessary that the person the subject of pecuniary penalty order be convicted of an indictable offence and for such person to have derived benefits from the commission of an indictable offence before such an order is made. This is in marked distinction to the requirements of s 26(1) of the 1987 Act. However, an pecuniary penalty order may still be made on the basis of a conviction for an indictable offence and deriving benefits from the commission of such offence (s 116(1)(b)(i). Furthermore, the fact that a person has been acquitted of the offence that was the basis for the making of the pecuniary penalty order does not affect the Court's power to make such an order in relation to that very offence (s 120). Under the 2002 Act, it is a sufficient basis for the making of a pecuniary penalty order if the court is satisfied on the balance of probabilities that the person has committed a serious offence (s 116(1)(b)(ii)) and, provided that the offence is not a terrorism offence, that it was committed within 6 years preceding the making of the application (s 116(2)).
19 Under the 2002 Act a pecuniary penalty order is defined to mean "an order made under s 116 that is in force" (s 338). The Act also provides for the discharge of a pecuniary penalty order, where such an order has been made in relation to a conviction for a serious offence. Section 146 provides:
"(1) A pecuniary penalty order made in relation to a person's conviction of a serious offence is discharged if:
(a) the person's conviction of the offence is subsequently quashed (whether or not the order relates to the person's conviction of other offences that have not been quashed); and
(b) the DPP does not, within 14 days after the conviction is quashed apply to the court that made the order for the order to be confirmed.
(2) However, unless and until a court decides otherwise on such an application, the quashing of the conviction does not effect the pecuniary penalty order:
(a) for 14 days after the conviction is quashed; and
(b) if the DPP makes such an application;
(3) A pecuniary penalty order made in relation to a person's conviction of an offence that is not a serious offence is discharged if the person's conviction for the offence is subsequently quashed."
20 The pecuniary penalty order presently under consideration was not made under s 116 of the 2002 Act. It was made under s 26 of the 1987 Act. However, the quashing of a number of the convictions on which the pecuniary penalty order was based occurred after the commencement of the 2002 Act. Thus, the relevant events in relation to the pecuniary penalty order straddle the two Acts. The transition between the two Acts is dealt with by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) (Transitional Provisions Act). In the Transitional Provisions Act there are provisions that deal with pecuniary penalty orders made under the 1987 Act where the conviction on which such orders were based has been quashed. Section 23 provides that:
"If:
(a) before or after the commencement of the Proceeds of Crime Act 2002, an order was made under section 26 of the Proceeds of Crime Act 1987 in relation to a person's conviction of an offence;
(b) after the commencement of the Proceeds of Crime Act 2002, the conviction is subsequently quashed;
Division 5 of Part 2-4 of the Proceeds of Crime Act 2002 applies in relation to the order in the same way that it would apply if the order had been made under Division 1 of that Part."
21 The 2002 Act was assented to on 11 October 2002 and relevantly came into effect on 1 January 2003. The pecuniary penalty order under consideration in the present case was made before the commencement of the 2002 Act and the conviction on which it was based was quashed after its commencement. It therefore falls within s 23 of the Transitional Provisions Act. The offences for which the Respondent was convicted were serious offences within the meaning of the 2002 Act (s 338) in that a loss to the Commonwealth of more than $10,000.00 was caused. The combined effect of these provisions is that the pecuniary penalty order under consideration must be dealt with in accordance with Division 5 of Part 2-4 of the 2002 Act, in which s 146 is included.
22 The scheme of s 146 is that:
(i) it contemplates that a pecuniary penalty order may relate to a conviction for more than one offence. This is clear from the parenthetical clause in s 146(1)(a);
(ii) when a pecuniary penalty order is based on convictions in relation to multiple offences and some, but not all, of such convictions are later quashed.
the pecuniary penalty order is nonetheless discharged unless the DPP within 14 days after the quashing of any such convictions makes an application to the Court that made the order for the order to be confirmed.
23 Since 16 of the convictions on which the pecuniary penalty order was based were quashed on 26 June 2003 and no application was made by the DPP within 14 days after such date for the order to be confirmed, the pecuniary penalty order has been discharged and there is now no avenue for the DPP to seek to set it aside or vary it under the 2002 Act.
24 Faced with this problem, the DPP submitted that the relevant provisions of the 1987 Act were not repealed by the 2002 Act or the Transitional Provisions Act and that s 100 continued to be applicable to all pecuniary penalty orders made under the 1987 Act. This submission flies in the face of the terms of s 23 of the Transitional Provisions Act. Furthermore, the amendments effected to the 1987 Act by Part 1 of Schedule 7 of the Transitional Provisions Act, some of which have already been referred to above, make it clear that after the commencement of the 2002 Act it is to that Act that regard should be had in dealing with matters, such as in the present case, that straddle the 1987 and the 2002 Acts. As a consequence the arguments by the DPP concerning the applicability of s 100 of the 1987 Act to the pecuniary penalty order under appeal should be rejected. The powers conferred by s 100 have no application to such pecuniary penalty order in the circumstances of the present case.
25 The DPP also argued that the pecuniary penalty order of 23 August 2002 was affected by the decision of the Court of Criminal Appeal on 26 June 2003 only in so far as the order related to the Financial Transactions Reports Act. However, the order that was made under s 26 of the 1987 Act is expressed to be in respect of the offences under both the Financial Transactions Reports Act and the Crimes Act 1914. It is a single order for one amount. It is indivisible. Whilst the express inclusion in it of the offences under both Acts may have been brought about by the way in which the Judge related the two sets of offences, ie, that detection of the Crimes Act 1914 offences was rendered more difficulty by the intertwining of the facts and circumstances of both sets of offences, the fact remains that the order was made on the basis of both sets of offences. Since 16 of the 18 offences on which it was based have been quashed, the pecuniary penalty order has been discharged by virtue of s 146 of the 2002 Act.
26 Even if the provisions of s 100 of the 1987 Act were still to be regarded as applying to the pecuniary penalty order, (which they do not), there would still be no right in the DPP at this time to have the order varied. Any power of the Court of Criminal Appeal to vary the order is conditioned by the time limits provided by the Criminal Appeal Act 1912. The time for appeal has long since expired. No application has been made by the DPP for an extension of the time within which to appeal. So, even if the matter were to be considered pursuant to the provisions of the 1987 Act, the present appeal would fail.
27 The DPP has also contended that the pecuniary penalty order included unnecessary words, namely:
"and section 31 of the Financial Transaction Reports Act 1988."