DPP v Platt & Anor [2020] VSCA 83

1 The extent of the Magistrates' Court's jurisdiction to hear and determine a charge for an indictable offence is governed by s 28 and Schedule 2 of the Criminal Procedure Act 2009. The issue in dispute in this proceeding is whether the Magistrates' Court had jurisdiction to hear a charge of attempting to obtain a financial advantage by deception contrary to ss 82 and 321M of the Crimes Act 1958, in circumstances where the amount of the financial advantage allegedly attempted to have been obtained was in excess of $100,000. That issue falls to be determined by the proper construction of s 28 and Schedule 2 of the Criminal Procedure Act.

2 In February 2018, the first respondent, Dr Lucy Platt, was facing a charge of attempting to obtain a financial advantage by deception, by applying to a bank for a loan of $1.2 million using falsified documents. Dr Platt intended to plead guilty to the charge, and sought to have the matter dealt with summarily in the Magistrates' Court. That course was opposed by the prosecution, but only on the basis that the Magistrates' Court did not have the necessary jurisdiction. The prosecution did not otherwise oppose the matter being dealt with summarily, if the magistrate was satisfied that it was appropriate to do so.

3 On 7 February 2018, after hearing argument, a magistrate determined that he had jurisdiction. On 23 April 2018, after a plea hearing, the magistrate imposed a fine of $25,000 without conviction.

4 In June 2018, the Director of Public Prosecutions commenced a proceeding in the Trial Division seeking judicial review remedies to set aside the magistrate's decision, and to remit the charge to the Magistrates' Court to be dealt with according to law. Again, no issue was taken with the magistrate's conclusion that it was appropriate to determine the charge summarily. The issue was whether the Magistrates' Court had jurisdiction at all.

5 On 13 February 2019, following a hearing on 1 February 2019, a judge of the Trial Division concluded that the Magistrates' Court did have jurisdiction to hear and determine the charge against Dr Platt, and dismissed the Director's proceeding.[1] The Director now seeks leave to appeal. Her single proposed ground of appeal is as follows:

The judge erred in failing to find that the magistrate committed jurisdictional error and, in particular, misconstrued the Criminal Procedure Act 2009, in holding that attempts to obtain financial advantage are triable summarily even where the amount sought to be obtained exceeds $100,000.

6 Section 25(1)(b) of the Magistrates' Court Act 1989 gives the Magistrates' Court jurisdiction 'to hear and determine all indictable offences which may be heard and determined summarily'.

7 Section 28 of the Criminal Procedure Act provides:

(1) A charge for any of the following indictable offences may be heard and determined summarily by the Magistrates' Court, if section 29 is satisfied -

(a) an offence referred to in Schedule 2;

(b) an indictable offence under an Act or subordinate instrument or an offence at common law if the offence is described by an Act or subordinate instrument as being -

(i) a level 5 offence or level 6 offence; or

(ii) punishable by level 5 or level 6 imprisonment or fine or both; or

(iii) punishable by a term of imprisonment not exceeding 10 years or a fine not exceeding 1200 penalty units or both -

unless the contrary intention appears in this or any other Act or in any subordinate instrument.

Note

A level 5 offence is punishable by 10 years imprisonment maximum and a level 6 offence is punishable by 5 years imprisonment maximum: section 109 of the Sentencing Act 1991.

(2) If an indictable offence is described as being punishable in more than one way or in one of 2 or more ways, all of those ways must be referred to in subsection (1) for subsection (1) to apply.

(3) If an indictable offence referred to in Schedule 2 is qualified by reference to a specified amount or value or a specified kind of property, that qualification is not affected by subsection (1)(b) or (2).

8 Schedule 2 of the Criminal Procedure Act is headed 'Indictable offences that may be heard and determined summarily'. The offences listed include, relevantly:

4.10 Offences under section 82 of the Crimes Act 1958 (obtaining financial advantage by deception), if the amount or value of the financial advantage alleged to have been obtained does not in the judgment of the court exceed $100 000.

4.28 Offences under section 321M of the Crimes Act 1958 (attempt) which are alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies.

9 As was noted by the judge, the upper limit of $100,000 appears throughout Schedule 2 in relation to a wide range of property offences. It also reflects the jurisdictional limit of the Magistrates' Court in civil proceedings.[2]

10 Section 29 of the Criminal Procedure Act permits the Magistrates' Court to hear and determine summarily a charge for an offence to which s 28(1) applies if 'the court considers that the charge is appropriate to be determined summarily, having regard to[3] [the nature of the offence and the adequacy of sentences available to the court]'. As we have already observed, in the event that the Magistrates' Court had jurisdiction in the present case, no issue was (or is) taken by the Director about the appropriateness of the charge against Dr Platt having been heard and determined summarily.

11 The judge summarised the Director's case on the construction and operation of s 28 and Schedule 2 of the Criminal Procedure Act as follows:

(a) The offence charged was an attempt to commit the indictable offence of obtaining a financial advantage by deception.

(b) Due to the value of the advantage that Dr Platt attempted to obtain - $1,200,000 - the offence is not an offence referred to in Schedule 2. Item 4.28 of Schedule 2 covers only an attempt to commit an indictable offence to which s 28(1) applies. Although the indictable offence of obtaining a financial advantage by deception is referred to in item 4.10 of Schedule 2, it is qualified by a maximum value of $100,000. The offence is therefore not covered by s 28(1)(a).

(c) Paragraphs (a) and (b) of s 28(1) of the Criminal Procedure Act have an overlapping operation. A number of the offences specified in Schedule 2 are also subject to the penalties specified in s 28(1)(b). The overlap is addressed by s 28(3), which has the effect that where an indictable offence listed in Schedule 2 is qualified by reference to an amount or value, that qualification prevails over the more general terms of s 28(1)(b).

(d) Hence, although the offence charged was an indictable offence punishable by level 6 imprisonment, the qualification by value in item 4.10 prevails and s 28(1)(b) does not apply.[4]

12 The judge said it was implicit in this analysis that the qualification by value in item 4.10 of Schedule 2 was 'somehow picked up and applied by item 4.28'. The judge then said that she did not agree that item 4.28 operated in this way.

13 Next, the judge said that the question to be resolved was 'Was the attempt [to obtain the financial advantage by deception] an offence to which s 28(1) applied?'. In so formulating the question, the judge rejected the Director's characterisation of the issue, namely, 'Was the offence being attempted an offence to which s 28(1) applied?'. The judge said that the Director's question 'conflate[d] the attempt offence with the substantive offence' - observing that Dr Platt was charged with 'attempt and not with obtaining a financial advantage by deception'.[5]

14 The judge then referred to Dr Platt's submissions, noting that Dr Platt advanced 'two avenues' by which it might be concluded that the offence for which she was charged was one to which s 28(1) applied. The judge identified Dr Platt's first avenue as involving the following steps:

(a) Item 4.28 in Schedule 2 applies to attempts committed in relation to an indictable offence to which s 28(1) applies.

(b) The words 'indictable offence to which s 28(1) applies' in item 4.28 refer to the relevant substantive offence - in this case, obtaining a financial advantage by deception.

(c) Those words do not refer to the substantive offence that was attempted by the accused. Rather, they refer to the substantive offence in general, without regard to amount or value.

(d) The offence of obtaining a financial advantage by deception, under s 82 of the Crimes Act, is punishable by level 5 imprisonment and so is an indictable offence referred to in s 28(1)(b).

(e) Hence, the offence of attempting to obtain a financial advantage by deception is an offence to which s 28(1) applies, regardless of the value of the financial advantage involved.[6]

15 The judge rejected this analysis, saying that the analysis disregarded s 28(3) and the primacy that section gives to qualifications by amount or value to the offences referred to in Schedule 2.[7] She held that the effect of s 28(3) is that where an offence attempted involved more than $100,000, it was not an indictable offence to which s 28(1)(a) applied.[8]

16 The judge then summarised Dr Platt's 'second avenue' as follows:

That conclusion [that the attempt with which Dr Platt was charged was not covered by s 28(1)(a)] is, however, the first step along the second avenue identified by Dr Platt. She submitted that, even if the attempt is not an offence referred to in Schedule 2, it is in any event an offence punishable by level 6 imprisonment, and so is an offence to which s 28(1)(b) applies. Item 4.28 is not qualified by amount or value, and so s 28(3) does not displace the application of s 28(1)(b) to the offence with which she was charged.[9]

17 Her Honour then set out the Director's submission in response to Dr Platt's second avenue, namely that

the legislature had dealt specifically with the offence of attempt in item 4.28, in clear terms, and so the general provision in s 28(1)(b) must give way to the specific provision in item 4.28.[10] Otherwise, s 28(1)(b) would provide a second entry point, by the back door, to the Magistrates' Court's summary jurisdiction.[11]

18 The judge rejected this submission, saying that the general words in s 28(1)(b) could not be read down in the way contended for by the Director.[12] Her Honour, however, accepted the Director's submission that paragraphs (a) and (b) of s 28(1) have an overlapping operation.[13] The judge said that this overlap is specifically dealt with by s 28(3), 'but only in limited respects'. As to the operation of s 28(3), the judge said:

Section 28(3) only ensures that the qualifications by amount or value or kind of property specified in the offences referred to in Schedule 2 prevail where there is an overlap with s 28(1)(b). Otherwise, s 28(3) does not limit the generality of s 28(1)(b).[14]

19 The judge concluded her analysis of the text of s 28 and Schedule 2 as follows:

The scope of item 4.28 is not qualified by reference to an amount or value; it merely includes within the offences referred to in Schedule 2 an attempt to commit an indictable offence to which s 28(1) applies. An attempt to commit an indictable offence to which s 28(1) does not apply may still fall within s 28(1)(b) if the attempt is a level 5 offence or a level 6 offence. In that case, s 28(3) does not have the effect of displacing the application of s 28(1)(b).

This construction does not set at nought the monetary limits specified in Schedule 2, as the prosecution submitted it would. As discussed, s 28(3) has the effect that those monetary limits prevail, where the offence would otherwise come within s 28(1)(b). However, they do not extend to the inchoate offence of attempt, in respect of which no monetary limit is specified in Schedule 2.[15]

20 Finally, the judge said that, although she did not consider that there was any ambiguity to be resolved, she was fortified in her construction of s 28 and item 4.28 by the following additional matters:

(1) The construction found by the judge furthered the objectives of the Criminal Procedure Act by achieving both efficiency and flexibility 'so that the Magistrates' Court can deal summarily with an indictable attempt charge in an appropriate case'.[16] In relation to this matter the judge made reference to the second reading speech for the bill, that became the Criminal Procedure Act, in which the Attorney-General said:

Criminal procedure laws must support and promote an efficient criminal justice system. Our courts deal with many cases each year. Case management practices need to create a structure that provides sufficient certainty and consistency to create an efficient system while providing sufficient flexibility to adapt to the individual needs of each case.[17]

(2) Section 28 is subject to s 29 of the Criminal Procedure Act, which gives magistrates the discretion whether to exercise the jurisdiction that s 28 confers, as the judge put it:

This discretion is to be exercised having regard to the matters set out in s 29(2), which include the seriousness of the offence and the adequacy of the sentences available to the Magistrates' Court. There will undoubtedly be cases where it is not appropriate for a charge of attempting to commit an indictable offence to be dealt with summarily, in which case the magistrate can decline to do so. In other cases - such as this one - it will be uncontroversial that the charge should be dealt with by the Magistrates' Court.[18]

(3) The construction of s 28 and Schedule 2 permitting the Magistrates' Court to deal with an attempt in respect of an amount greater than $100,000 did not expand the jurisdiction that court had under the provisions in force immediately before the commencement of the Criminal Procedure Act, namely s 53 and Schedule 4 of the Magistrates' Court Act 1989.

21 Obtaining a financial advantage by deception contrary to s 82 of the Crimes Act is an indictable offence punishable by level 5 imprisonment (10 years)[19]. Section 321M of the Crimes Act specifies that a person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Section 321P specifies the penalties for attempts. That section specifies that for an offence where the penalty is level 5 imprisonment (in this case attempting to obtain a financial advantage by deception), the penalty for an attempt (again, in this case, attempting to obtain a financial advantage by deception) is level 6 imprisonment (5 years)[20].

22 In their submissions, counsel for Dr Platt emphasised that s 28(1) of the Criminal Procedure Act permits a charge for any of the offences referred to in paragraph (a) or (b) of that section to be heard and determined summarily if s 29 of the Criminal Procedure Act was satisfied. Accordingly, and subject to any operation that s 28(3) may have,[21] the first enquiry is to see whether the offence with which Dr Platt was charged fell within s 28(1)(a), and then to determine (if necessary) whether it fell within s 28(1)(b).

Section 28(1)(a)

23 Under s 28(1)(a) the relevant offence has to be one 'referred to in Schedule 2'. Plainly, the offence with which Dr Platt was charged was not an offence referred to in item 4.10 of Schedule 2. Item 4.10 is the offence of actually obtaining a financial advantage - where the amount or value of the financial advantage alleged to have been obtained does not exceed $100,000.

24 The only item in Schedule 2 which might refer to the offence with which Dr Platt was charged is item 4.28. In considering the s 28(1)(a) component of this case, the question is whether the offence with which she was charged was, in the words of item 4.28, an offence:

under section 321M of the Crimes Act 1958 (attempt) which [was] alleged to have been committed in relation to an indictable offence to which section 28(1) of this Act applies.

25 Thus, on its plain terms, item 4.28 contemplates the existence of attempt offences which are alleged to have been committed in relation to indictable offences to which either s 28(1)(a) or s 28(1)(b) applies. So much is plain from the reference in item 4.28 to s 28(1) as a whole, rather than to a particular paragraph or sub-paragraph of that section..

26 If one commences the analysis required by item 4.28 by reference to paragraph (a) of s 28(1), the offence with which Dr Platt was charged was not an offence referred to in Schedule 2 because it was not an attempt to obtain a financial advantage by deception where the amount of the financial advantage alleged did not exceed $100,000. Thus, item 4.10 was not engaged by s 28(1)(a).

27 That is not, however, the end of the application of s 28(1)(a). The offence of obtaining a financial advantage by deception is an offence punishable by level 5 imprisonment. That offence (obtaining a financial advantage by deception) is thus an indictable offence to which s 28(1), and thus item 4.28, applies because of sub-paragraph (b)(ii). The attempt alleged to have been committed by Dr Platt in relation to that indictable offence was thus an attempt alleged to have been committed in relation to an indictable offence to which s 28(1) of the Criminal Procedure Act applies.

28 It follows that, by the terms of s 28(1)(a) and item 4.28 of Schedule 2, the offence with which Dr Platt was charged (attempting to obtain a financial advantage by deception) was an offence referred to in Schedule 2 - being an offence referred to in item 4.28 - and was thus an offence to which s 28(1)(a) applied.

Section 28(1)(b)

29 The offence with which Dr Platt was charged was an indictable offence under the Crimes Act punishable by level 6 imprisonment (5 years). On any view, the offence was one to which s 28(1)(b)(ii) applied. The offence with which Dr Platt was charged fell within that sub-paragraph without the need for any reference to Schedule 2, and more particularly item 4.10 or item 4.28.

30 Before proceeding further, it is necessary to say something about Balmford J's decision in Otte v Magistrates' Court of Victoria.[22] In Otte, the issue was whether the Magistrates' Court had jurisdiction to hear and determine summarily two charges of attempting to obtain a financial advantage where the value of the financial advantage was alleged to be $26,500.

31 The provisions giving the Magistrates' Court jurisdiction to hear and determine indictable charges summarily were then contained in s 53 and Schedule 4 of the Magistrates' Court Act 1989. Although the text of s 28 and Schedule 2 of the Criminal Procedure Act differ from the text of s 53 and Schedule 4 of the Magistrates' Court Act, the provisions in force at the time Otte was decided were relevantly identical to those now under consideration, except that the monetary limit was only $25,000.

32 In Otte, Balmford J concluded in respect of the predecessor to item 4.10 in Schedule 2 of the Criminal Procedure Act,[23] that it should be read as though the expression 'attempted to be' were inserted before the word 'obtained', causing the relevant passage in the item to read 'the amount or value of the financial advantage alleged to have been attempted to be obtained does not ... exceed [the relevant monetary limit]'.[24]

33 The Director relied upon Otte to engage the principle of statutory construction that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them.[25] There are, however, two problems with placing any reliance upon Otte in construing s 28 and Schedule 2 of the Criminal Procedure Act.

34 First, to the extent that one can take into account that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already attributed to them, that does not mean that a court should perpetuate a plainly erroneous construction of a statutory provision.[26] With respect to Balmford J, we think there was little (if any) warrant for reading the words 'attempted to be' into the predecessor of item 4.10 of Schedule 2 of the Criminal Procedure Act.

35 Secondly, in her analysis of s 53 of the Magistrates' Court Act, Balmford J made no reference to sub-s (1A) - the equivalent of s 28(1)(b) of the Criminal Procedure Act. As a result, the issues we have had to confront in this case were not the subject of any analysis by her Honour.

36 For these reasons, Otte is of no assistance in the resolution of the present construction issues.

Section 28(3)

37 The final question, so far as the present proceeding is concerned, is whether s 28(3) operated to deny the Magistrates' Court jurisdiction to hear and determine the charge summarily. That issue is resolved by answering the question of whether the indictable offence of attempting to obtain a financial advantage by deception is qualified by reference to the $100,000 amount set out in item 4.10 of the Schedule.

38 Plainly, the indictable offence of obtaining a financial advantage by deception (referred to in Schedule 2) is qualified by the $100,000 limit. Thus, the fact that the offence of obtaining a financial advantage by deception also satisfies paragraph (b) of s 28(1) does not give the Magistrates' Court jurisdiction to hear and determine summarily a charge of obtaining a financial advantage by deception where the amount exceeds $100,000.

39 On its terms, however, the offence of attempting to obtain a financial advantage by deception, being an offence to which s 28(1)(b)(ii) applies (because it is punishable by level 6 imprisonment) is not qualified by reference to any monetary limit (or more particularly, the monetary limit set out in item 4.2 of Schedule 2) the offence is merely one that is punishable by level 6 imprisonment and thus within s 28(1)(b)(ii).

40 Even if the offence with which Dr Platt was charged was held to be one that is referred to in Schedule 2 by reason of it being an attempt in relation to an indictable offence to which s 28(1)(b)(ii) applies (because under item 4.28 it is an attempt to commit an indictable offence that is itself punishable by level 5 imprisonment), the actual offence with which Dr Platt was charged was still not qualified by the $100,000 limit set out in item 4.10. Again, the offence referred to in item 4.28, on its terms, is not qualified by reference to any specified amount or value.

41 This result is neither surprising nor inconvenient. It is to be remembered that the offence of obtaining a financial advantage by deception carries a maximum term of imprisonment of 10 years; whereas the offence of attempting to obtain a financial advantage by deception carries a maximum term of only 5 years. More particularly, attempt offences generally carry lesser maximum penalties than those carried for the corresponding choate offence.[27] Thus, the fact that the Magistrates' Court may, subject to s 29 of the Criminal Procedure Act, have power to hear and determine summarily attempt offences, where that power is denied them for the corresponding choate offence, may be no mere happenstance.

42 Further, there is much to be said for the judge's analysis concerning s 29 of the Criminal Procedure Act, and the flexibility and efficiency created by permitting the Magistrates' Court to hear and determine summarily attempt offences notwithstanding that the amount involved may exceed the monetary limit prescribed for the corresponding choate offence.

43 Section 28(1)(a) invests jurisdiction for an offence referred to in Schedule 2. Item 4.28, in Schedule 2, consists of attempts (s 321M of the Crimes Act) in relation to an indictable offence 'to which s 28(1) of this Act applies'.

44 That description of the offences referred to in item 4.28 gives rise to two possibilities:

(a) an attempt to commit an offence otherwise described in Schedule 2. In this case, no such offence is thus described. The only possible candidate in Schedule 2 - item 4.10 - is not engaged because the relevant offence (which in respect an attempt might be made) is limited to a financial advantage not exceeding $100,000; and

(b) an attempt to commit an offence prescribed by s 28(1)(b). The offence of obtaining a financial advantage by deception is punishable by level 5 imprisonment. Thus that completed offence is within s 28(1)(b). By the terms of item 4.28, an attempt to commit that offence is thus an attempt to commit an indictable offence 'to which s 28(1) of this Act applies'. That is, an attempt to obtain a financial advantage by deception is, of itself, captured by item 4.28.

45 In that way, the offence charged against the respondent is an offence 'referred to in Schedule 2', and thus comes within s 28(1)(a). Importantly, Item 4.10 is not engaged,

46 For the reasons given in [30] above, the offence, that is charged also comes within s 28(1)(b)(ii). Thus, that offence fell within that subparagraph without the need to refer to Schedule 2.

47 By coming within Item 4.28 in the second schedule, without reference to Item 4.10, the offence is not 'qualified by reference to a specified amount or value'. Hence s 28(3) does not apply.

48 For the above reasons, the judge was correct to conclude that s 28(3) of the Act did not have relevant operation in the present case.

49 While there should be a grant of leave to appeal, the appeal must be dismissed.

[1] DPP v Platt [2019] VSC 51 ('Reasons').

[2] Magistrates' Court Act, s 3, definition of 'jurisdictional limit' and s 100.

[10] Relying on Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 38; (1980) 29 ALR 333, 347 (Deane J).

[11] Reasons [22] (citation in original).

[15] Ibid [24]-[25] (footnote omitted).

[17] Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4982 (Rob Hulls, Attorney-General).

[19] See s 109 of the Sentencing Act 1991.

[21] It not being contended that s 28(2) had any relevant operation in this case.

[22] (1996) 89 A Crim R 223 ('Otte').

[23] Item 22 of Schedule 4 of the Magistrates' Court Act.

[24] Otte (1996) 89 A Crim R 223, 227 [17].

[25] See Barras v Aberdeen Steam Trawling & Fishing Co Ltd [1933] UKHL 3; [1933] AC 402. See also D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 110; Pillar v Arthur [1912] HCA 51; (1912) 15 CLR 18, 22, 25, 29-30; Platz v Osborne [1943] HCA 39; (1943) 68 CLR 133, 141, 146-147. But see further, Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, 106; Fortress Credit Corporation (Aust) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489, 502, where that principle has been questioned.

[26] Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1, 13-14 (Mason J), 22-23 (Wilson and Dawson JJ), 29-30 (Brennan and Deane JJ); John v Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, 439-441 (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ), 452 (Brennan J).

[27] See s 321P of the Crimes Act 1958.