R v Beary [2004] VSCA 229

Court of Appeal (Vic)|2004-12-15|Before: ORMISTON, CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Money laundering - Whether s.122 of the Confiscation Act 1997 (No. 108) creates one offence or two separate offences - Rolled up count - Representative or G_iretti_ count - Sentence - Whether judge sentencing for one offence may take account of acts which constitute a separate offence - Mistake as to maximum sentence - Not immaterial - Sentence of three years' imprisonment for representative count of money laundering constituted by the sale of proceeds of thefts manifestly excessive.

The interpretation of s.122 of the Confiscation Act 1997 [2] is by no means easy, but fortunately it has now been repealed, although I am by no means confident that the provision substituted for it in the more recent legislation is any easier to construe. It is difficult to analyse what was intended by the provisions of this section, and the related definition sections, if one goes beyond the language of the provisions themselves. I would have the gravest doubts that the legislature intended to be characterised as "money laundering" the mere sale by a thief of the stolen objects, even if sold on a systematic basis. What one might have thought was intended by the concept of money laundering was expressed only last month by the House of Lords in R. v. Montila[3] where their Lordships said:

"In its typical form money laundering occurs when criminals who profit from their criminal enterprises seek to bring their profits within the legitimate financial sector with a view to disguising their true origin. Their aim is to avoid prosecution for the offences that they committed and confiscation of the proceeds of their offences."

What was there said, of course, related to provisions in other legislation, albeit that the concept of money laundering and the need to prevent it has been a universal concern for at least 20 years and many of the relevant measures have international ramifications. As pointed out by Mr Chaikin in the article referred to in the judgment of Buchanan, J.A.[4], the concept, one might think, involves the hiding of the existence of wrongfully obtained money or other property from the authorities and the conversion of that into money or the like in a form which is likely to make its original source all the more secret. Doubtless one difficulty in drafting sections such as these is the obvious characteristic of most crime, at least those offences which involve the taking of property or dealing in drugs, that the perpetrators wish to remain hidden and to keep secret their ill-gotten gains. Other crimes are more open in their commission, even blatant, but most perpetrators thereafter desire that both themselves and any proceeds remain as secret as practicable.

In the present case one has an appellant who can truly be described as a serial thief. For a period extending over several months, there is cogent evidence of thefts committed at the rate of six to a dozen (or more) times a day[5] largely from supermarkets or other stores. The object was to take property for her own purposes but, by good fortune or more likely because she was very efficient in her shoplifting, she made an arrangement on a continuous basis for converting the stolen goods into the money she needed for her day to day purposes. The joint owners of the three service station shops offered to and did pay her one-third of the retail price of all goods supplied by her to them. It was so well organised that cartons of the shoplifted goods were taken two to four (or more) times a day directly by car to the handlers who paid her the agreed sums. That placed her in the advantageous position that she did not have to keep any of the stolen goods for a significant time, but more importantly she was able to obtain ready cash for her own purposes.

One may have thought that, apart from its efficiently systematic implementation, the arrangement, the related thefts and handling by both the appellant and the purchasers would be far removed from what law enforcement officers had viewed as money laundering. It is hard to believe that even the systematic disposition of stolen property in this way could be intended to render the thief liable to a penalty twice that applicable to the principal offence.

Nevertheless, I agree, largely for the reasons he states, with the interpretation placed on the section by Buchanan, J.A., notwithstanding that those responsible for enforcing the legislation have, at least on this occasion, produced a sledgehammer to crack a nut. In technical terms the appellant either "disposed" of the proceeds of her criminal activities, namely the stolen property, or (preferably) she "received" money from the handlers, which was indirectly the proceeds of her own thefts, and she knew, obviously, that the property disposed of or the money she received (as the case may be) was derived directly or indirectly from those unlawful thefts. She may also be treated as having engaged in a transaction which consisted in the agreed scheme to sell stolen property, which was the proceeds of her own crimes, to the handlers in circumstances where she has precisely the same knowledge of "unlawful activity". The section in the form which it took at the relevant time seems to have concentrated primarily either on the receiving or disposition of the relevant money or property, or on any "transaction" concerning the same, regardless of whether it was subsequently concealed, disguised or otherwise kept secret. There is no evidence that the appellant kept any of the money for any significant time, nor that she took any steps specifically to keep the proceeds secret apart from her natural unwillingness to broadcast what she had done to the rest of the world. In the end, notwithstanding my belief that these provisions were not intended to cover conduct of the kind here alleged against and admitted by the appellant, the language of those provisions was sufficiently intractable to deny the appellant any argument that she was not caught by them. Thus I agree with Buchanan, J.A., essentially for the reasons he states, that the application for leave to appeal against conviction out of time should be refused.

On the other hand I agree that it was entirely inappropriate that the appellant should have been sentenced upon the basis that this was a serious example of the offence of money laundering, so that the application and the appeal must be allowed and the appellant resentenced. It was quite wrong to impose a sentence of three years with respect to that offending and to treat it as the head offence for sentencing purposes, as the judge did. I would treat it as a very minor infraction of the money laundering provisions and would sentence the appellant accordingly. However, notwithstanding that error by the learned judge, and I can well understand the difficulties in which he was placed, I would still see the thieving of the appellant overall as a very serious example of deliberate, serial offending of a kind which must be condemned. A very high value of goods was taken which consisted in a remarkably large number of items, remarkable if only because they were the product solely of shoplifting by the appellant, who, to achieve her ends, had to place each separate stolen item into the large black bag she carried through the supermarkets. Not only that, but at least eighteen of the offences were committed while the appellant was on bail, as were a large proportion of the thefts contained in the rolled-up count No. 28 which related to goods worth between $150,000 and $206,000. As to those post-bail offences, s.16(3C) of the Sentencing Act requires those sentences to be served cumulatively, unless the court orders otherwise. As it turned out the sentencing judge ordered concurrence with respect to the minor offences, but as to count 28 he directed part to be served cumulatively on the money laundering count.

As I have said, I have not been persuaded that, on the required resentencing, the sentence, in the sense of the total effective sentence and the term to be served before becoming eligible for parole, should be altered in this case, notwithstanding what has been said in this regard by Buchanan, J.A. I agree with him, however, that a lesser term should be imposed for the money laundering count and that it should be made wholly concurrent with the other counts, especially count 28. Moreover I would have reduced the sentence to be imposed for that count to a term of six months for, as already stated, I consider the charging of the appellant with that offence to have been largely an inappropriate decision, notwithstanding that technically the offence has been made out. It is hard to characterise it as a deliberate attempt to hide or disguise or make secret that which was obtained as the proceeds of the thefts, if one were, as one should for this purpose, to look to the intention of the legislature in passing such draconian legislation. To demonstrate how little the appellant was concerned with "disguising the money trail", she had even compiled invoices identifying the quantity of items stolen and the prices owed to her for them.

On the other hand I consider the sentences otherwise passed with respect to her thefts were modest, indeed so modest that on re-sentencing I would restructure the sentences so as to reconfirm the total effective sentence of five years and the minimum term of three years before the appellant would become eligible for parole. That difference would be sufficient in this case to reflect those ameliorating aspects of the appellant's conduct which ought to be recognised, when the principles of totality and proportionality have already been sufficiently involved in fixing only five years for a 29-count presentment. Because I differ from the majority in this respect I will not go through my reasoning in detail. It is sufficient to say that, whatever might be said of her unfortunate background, she had an appalling record, having been before court on about 35 previous occasions in her 41 years (to that time), at which she had been convicted for about 255 previous offences and had otherwise been found guilty in respect of 20 other offences. Of those offences something in the order of 200 were offences of dishonesty. Having regard to the systematic method in which the appellant went about her shoplifting and then obtaining regular payment for her thefts, I do not believe that any term less than that set by the sentencing judge, as a whole, was or is appropriate. The rolled-up count 28 deserved no less than the three years which the judge imposed for it and I would not reduce it. Some of the individual thefts should not have resulted in sentences as low as one month and I would have imposed at least three months in respect of most of those counts which were committed after the appellant was released on bail. Appropriate orders for non-concurrence would have to be made to bring the total effective sentence to the term of five years, as was imposed by the judge. I would have directed that the whole of the sentence on the laundering count should be concurrent.

Consequently, although agreeing with Buchanan, J.A. as to the dismissal of

the application for leave to appeal against conviction out of time, I would have allowed the appeal against sentence but only so as to re-sentence the appellant in a manner which would have resulted in her receiving the same total effective sentence of five years and would also have resulted in the same direction with respect to a period of three years to be served before she became eligible for parole.

I agree in the disposition of the application for leave to appeal against conviction and the appeal against sentence proposed by Buchanan, J.A. for the reasons his Honour gives.[6] I wish to add some observations of my own on two recurrent points of practice which arose in this case.

Count 28, in contrast with count 27, was a rolled-up count. In R. v. Jones[7] Charles, J.A., with whom Phillips, J.A. and Bongiorno, A.J.A. agreed, explained the difference between a representative count and a rolled-up count as follows[8]:

"I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative count the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In Mr Silbert's written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. Mr Silbert argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return." (Footnotes omitted.)

One of the footnotes in that passage refers to R v. Carver[9]. Counts 2 and 3 in that case were rolled-up counts. Count 2 charged that, between 12th November 1992 and 15th January 1993, Carver dishonestly obtained a number of share certificates by deception. Count 3 charged that, between 26th November 1992 and 31st December 1992, he attempted dishonestly to obtain a number of share certificates by deception. It was common ground that the maximum custodial penalty that could be imposed on count 2 was ten years' imprisonment, subject to s.10 of the Sentencing Act 1991, which was still in force, and that the maximum custodial penalty that could be imposed on count 3 was seven-and-a-half years' imprisonment. I said that that necessarily implied that the judge would be imposing a sentence in respect of only one of the offences disclosed in each count and that the sentencing discretion would have to be exercised in the same way as it is when a count on a presentment is treated, by agreement between the parties, as a "representative count". [10]

A number of things should be said about the conflict between R. v. Jones and that part of my judgment in R. v. Carver. One is that the latter is an obiter dictum. I went on to say that the sentences imposed on counts 2 and 3 were not manifestly excessive even if they were treated as sentences imposed for one of the offences disclosed in each of those counts taking the other offences into consideration.[11] The result of the case was that the application for leave to appeal against sentence was granted and the appeal allowed in part. The sentence imposed on count 1 was quashed and the appellant re-sentenced on that count, but the sentences imposed on counts 2 and 3 were affirmed.[12] Another thing that should be said is that, although they agreed in my reasons, the other members of the Court[13] should not be taken necessarily to have agreed in that obiter dictum.[14]

Finally, on reflection, I think I was wrong. The reason I said that, although counts 2 and 3 were rolled-up counts, the judge could sentence Carver in respect of only one of the offences disclosed in each count was my concern that the Crimes Act 1958 attaches a maximum penalty to an offence rather than to a count. Thus, for example, s.74(1) provides that a person guilty of theft is guilty of an indictable offence and liable to level 5 imprisonment. I asked Mr Hillman about that difficulty in the course of the argument in the present case. He submitted that, although the Crimes Act attaches a maximum penalty to an offence, it is impossible to impose more than one sentence on any given count and it is for that reason that, on a rolled-up count of theft, the offender cannot be sentenced to more than ten years' imprisonment. I accept that submission, which removes the concern I had in R. v. Carver and justifies the practice explained by Charles, J.A. in R. v. Jones.

The judge sentenced the appellant in the belief, reflected in his sentencing remarks, that the maximum custodial penalty for money laundering was 25 years' imprisonment. In fact it was 20 years' imprisonment.[15] In a series of decisions this Court has held that such an error does not automatically vitiate the exercise of the sentencing discretion. Whether the discretion is reopened depends on the significance of the error in the case at hand.[16] That series of cases has long troubled me, partly because of the mandatory terms of s.5(2)(a) of the Sentencing Act, which was not referred to in the seminal case R. v. RJE[17]; partly because the point did not need to be decided in R. v. RJE, where all the members of the Court were of opinion that, in any event, no different sentence should be passed[18]; and partly because there is an apparent tension between emphasizing instinctive synthesis, as this Court has always done, but saying that the synthesis is not vitiated by taking into account a wrong maximum penalty.

I do not stay to consider what my view on this point would be absent the series of cases to which I have referred. Like any other Victorian judge, I am bound by the principle they establish. As we shall see, the principle is one of materiality. I am not bound, nor is any other judge, by every word in them and it is to be remembered that sentences are not precedents to be distinguished.[19]

I offer two observations. The first is that the intellectual underpinning may possibly be found in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd.[20] In a passage to which reference is frequently made[21], Mason, J. said, among other things, that s.5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was substantially declaratory of the common law, that the ground of failure to take into account a relevant consideration could be made out only where the decision-maker had not had regard to a consideration that he or she was bound to take into account and that mandatory considerations were to be identified by construing the statute conferring the discretion.

Those principles apply to s.5(2)(a), but his Honour continued:

"Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd." (Emphasis added but footnotes omitted.)

It matters not that that was said in a civil case or in a case concerned with administrative decisions. House v. R.[22], which is cited every day in the Civil Division of this Court, was an appeal against sentence. The effect of failing to take into account a mandatory consideration is part of the general law relating to the exercise of discretions.

Mason, J.'s words are strikingly similar to what Brooking, J.A. said in R. v. RJE[23]:

"The maximum penalty for an offence is ordinarily an important consideration, but it cannot, I think, be the law that a mistake made by a sentencing judge about the maximum will necessarily and in all circumstances vitiate the exercise of the sentencing discretion in relation to that offence where a sentence of imprisonment is passed for it. It may be possible to characterise the error as immaterial." (Emphasis added.)

The first case which applied R. v. RJE is a good illustration. In R. v. Sivov the judge was sentencing on two presentments involving 14 counts. The sentence to which the error, ten years' as opposed to seven-and-a-half years' imprisonment, related was four months' imprisonment out of a total effective sentence of four years' imprisonment with a non-parole period of three years.

The second observation is that, given the mandatory terms of s.5(2)(a) and this Court's emphasis on instinctive synthesis, we should be cautious before we conclude in any given case that a mistake about the maximum penalty did not matter. Even where a relatively low sentence is imposed compared with, say, a 15-year maximum which the judge mistook for a 20-year maximum, the judge's mind may have been affected by a perception that, in the view of the legislature, this was not just a serious offence but a very serious offence. Because we are concerned with instinctive synthesis, such a perception may be unconscious but none the less effective because it is unconscious. It may have been decisive if the judge was wavering between, say, four-and-a-half years and four years' imprisonment or a longer or shorter non-parole period.

I would summarize what I have said as follows. First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view, in the face of s.5(2)(a) of the Sentencing Act, is that, in Mason, J.'s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not reopen the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is reopened, the Court may be of opinion that no different sentence should be passed.[24]

On 23 May 2003 Susan Mary Beary was arraigned and pleaded guilty to a presentment containing 27 counts of theft, one count of attempted theft and one count of money laundering. Counts 1, 2 and 4 to 26 charged the appellant with the theft of specified items of property. Count 3 charged the appellant with the

attempted theft of specified articles. Count 28 charged that between 1 February 2002 and 28 May 2002, on occasions other than those referred to in the other counts, the appellant stole property described in general terms valued at between $150,000 and $206,837.15. Count 27 was concerned with money laundering. After a plea for leniency was conducted, the appellant was sentenced to be imprisoned to a term of one month on each of counts 1 to 26 and 29 and to a term of three years on each of counts 27 and 28. Two years of the sentence imposed in respect of count 28 were ordered to be served cumulatively upon the sentence imposed in respect of count 27, creating a total effective sentence of five years' imprisonment. A minimum term of three years' imprisonment was fixed before the appellant was to be eligible for parole.

The appellant was granted leave to appeal against the sentence. She now also seeks leave to appeal against the conviction on the count of money laundering.

The circumstances of the offences may be shortly stated. The appellant entered into an arrangement with the owners of three convenience stores attached to service stations pursuant to which the appellant stole from shops and supermarkets goods ordered by the convenience store owners. The appellant was paid one-third of the retail price of the goods she stole. Over a period of five months the applicant committed daily thefts and regularly delivered two or more cardboard boxes of stolen goods to one of the convenience stores, where she presented an itemised invoice for the goods and received payment in cash. The appellant told the police that she received amounts varying from $300 to $700 each day. The appellant was arrested on 29 May 2002. She was granted bail and immediately committed another theft.

The appellant is 44 years of age. She left school after Year 10, when she became pregnant at the age of 15 years. The appellant bore a son. Later the appellant had two children by other men. At the age of 22 years the appellant was introduced to heroin by her partner and became addicted to it. The appellant has a large number of prior convictions, for the most part caused by her need of money to support her drug addiction. In all the appellant has some 275 convictions from 35 court appearances. Most of the earlier offences were loitering for the purposes of prostitution, and later theft predominated. Otherwise there were convictions for drug and driving offences.

It is convenient to turn first to the application for leave to appeal against conviction. The application is based upon the contention that, on the admitted facts, Susan Beary, whom I shall continue to call "the appellant", could not, as a matter of law, be guilty of money laundering. The appellant thus seeks to bring her case within the second category of cases described by Avory, J. in R. v. Forde. His Lordship said:

"A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged." [25]

At the time the offence was alleged to have been committed s.122 of the Confiscation Act 1997 ("the Act") provided, so far as is presently relevant:

"(1) A person who engages in money laundering is guilty of an indictable offence and liable to level 3 imprisonment (20 years maximum) or a level 3 fine (2400 penalty units maximum) or both. (2) A person engages in money laundering if, and only if - (a) the person engages, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of crime; or (b) the person receives, possesses, conceals, disposes of or brings into Victoria any money, or other property, that is proceeds of crime and the person knows, or ought reasonably to know, that the money or other property is derived, directly or indirectly, from some form of unlawful activity."

The term "proceeds of crime" was defined in s.121 to mean, inter alia, "the proceeds of a forfeiture offence". An indictable offence, such as theft, was a "forfeiture offence". See s.3 and clause 1 of Schedule 1. The word "proceeds" in relation to an offence was defined in s.3 to mean:

"... any property that is derived or realised, directly or indirectly, by any person from the commission of the offence."

The money laundering count in the present case pleaded that the appellant "between the 1st day of February 2002 and the 28th day of May 2002 engaged, directly or indirectly, in a transaction that involved money that is the proceeds of crime and [she] knew or ought reasonably to have known that the money was derived, directly or indirectly, from some form of illegal activity."

Count 27 is couched in ambiguous terms. The fact that it is expressed as an offence committed between dates suggests it was viewed by its draftsman as a Giretti[26] count. I assume, without deciding, that s.122 of the Act is not limited to single acts and covers a continuing activity. On the other hand, the count refers to "the transaction", which is an apt description of one sale, and thus the count may be viewed as a representative count. If the count is construed in a Giretti sense, the appellant is to be sentenced for engaging in a continuous business of money laundering over a substantial period of time. If the count is a representative count, the appellant is to be sentenced for one act of money laundering, albeit that act is not to be seen as an isolated event. I would construe the ambiguity against the Crown and treat the count as a representative count. The count lifts the words of the section and appears to apply them to one event.

Counsel for the appellant submitted that the appellant's acts did not fall within the section because she was not paid for the goods she stole with money that was the proceeds of a forfeiture offence. Even if the section bears such a restricted meaning, so that the offence could only have been committed if the money bore the character of proceeds of crime at the outset of the transaction, in my view the count can be treated as charging the appellant with engaging in a transaction that involved property that was the proceeds of crime.

While no authority directly on the point was cited to us, and I have found none, I consider that s.122 created but one offence. The offence might have been constituted by a transaction involving either money or other property. In my view dealing with money was not one kind of offence and dealing with other property a different kind of offence. If the transaction in which the appellant engaged did not involve money that was the proceeds of crime, it did involve property that was the proceeds of crime. The definition of the word "proceeds"... includes "property that is derived ... directly ... by any person from the commission of the offence." The property sold by the appellant was derived directly by her from the commission of the offence of theft. The word "proceeds" was not confined to property which had been converted from the state it was in at the time of the offence into another form.[27]

I am also of the opinion that to say that the appellant engaged in a transaction which involved property the proceeds of crime does not unfairly re-characterise the offending conduct.[28] If count 28 had charged the appellant with engaging in a transaction that involved money or other property that was the proceeds of crime, it would not have affected the course of the plea. During the plea both the appellant and the Crown dealt with the transaction of sale in which the property and the money played equal parts and did not distinguish between those elements.

Accordingly, I would refuse the application for leave to appeal against conviction.

A ground of appeal against sentence was as follows:

"In relation to count 27 (money laundering), the learned judge erred: (a) in failing to identify the basis on which the sentence was imposed; (b) by imposing a manifestly excessive sentence; and (c) in sentencing on the wrong maximum penalty (25 years' gaol, instead of 20)."

A related ground of appeal was that the sentencing judge erred "in ordering any cumulation, or as to the extent of cumulation ordered, between the sentences on counts 27 and 28."

The problems created by count 27 are to some extent due to the scope of s.122 of the Act. The term "money laundering" is said to have been first used by United States law enforcement agencies to refer to the mafia mixing illicit profits from bootlegging, gambling and prostitution with cash takings from laundromats.[29] In her speech moving that the Confiscation Bill be read a second time, the Attorney-General referred to the "increasingly sophisticated devices used by criminals to conceal" the profits from "activities such as commercial drug trafficking" and "large scale fraud".[30] The Act, however, was not limited in its application to transactions designed to conceal or disguise the true source of money or other property. Such wide terms were employed that every handler of stolen property was a money launderer, as was every thief who, like the appellant, sold the stolen goods.[31]

If the presentment had not contained count 27, the sentencing judge could have taken into account as part of the context of the thefts the fact that they were committed in the course of a business carried on by the appellant to make money by supplying the stolen goods to others for re-sale without, I would have thought, offending the principle that a person cannot be sentenced for an offence of which that person has not been convicted. In R. v. Teremoana[32], Cox, J. said:

"[I]t is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to the relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly taken into account as a part of the circumstances surrounding the offence charged."[33]

Similarly, when the actions of the offender amount to a crime such as money laundering only because of the width of the provision creating the crime, and do not constitute the principal mischief at which the crime was aimed, in my view it will not be unfair to take those actions into account as part of the circumstances surrounding the offence for which the offender is being sentenced.[34] In the present case I think it would have been preferable if the prosecution had relied on the circumstances in which the appellant disposed of the goods as part of the matrix of facts surrounding the thefts rather than as the elements of a separate offence.

The presence of count 27 enabled the sentencing judge to impose a distinct punishment for this aspect of the thefts. Although the sentencing judge in this case did not identify the circumstances of the offences which he considered in fixing the sentences, I am prepared to assume that his Honour did not take the sale or sales of the stolen goods into account in fixing the sentences for theft, and only took the sale or sales into account in deciding upon the sentence for money laundering. In my opinion, however, the sentence which he imposed in respect of count 27 was excessive.

I do not view the sale of stolen goods as the principal target of s.122 of the Act and, while the sales might be seen as a circumstance aggravating the thefts, I think that the sentence of three years imposed on the count of money laundering constituted a disproportionate punishment for the fact that the appellant sold the goods instead of retaining them for her own use.

The sentence imposed in respect of count 27 may have been influenced by the sentencing judge's mistaken view that the maximum sentence for the offence was 25 years' imprisonment when the maximum was in fact 20 years' imprisonment. I have read the draft reasons prepared by Callaway, J.A. and I agree with his Honour's conclusion that a mistake as to the maximum sentence does re-open the sentencing discretion unless the appellate court is satisfied that the error could not have materially affected the sentence. In the present case I am not so satisfied. The sentence imposed upon the appellant was far from the maximum, but I think that the sentencing judge may have been influenced by Parliament's assessment of the gravity of the offence, which he mistook.

"The learned judge erred: (a) in failing to give any or sufficient weight to the applicant's disclosure to police of offending that otherwise would not have been detected; and (b) in giving no or less weight to the applicant's co-operation with the police and remorse by reason of the presence of aggravating factors."

Surveillance by the police supplied evidence of several thefts in May 2000. The appellant's admissions to the police were the only evidence of the extent of daily thefts and the fact that they had been committed throughout February, March and April 2000. That was a mitigating factor. The sentencing judge expressly stated, however, that he had regard to the appellant's plea of guilty and that she had "to a significant degree co-operated with the police." I treat this remark as denoting that the sentencing judge was alive to the fact that the appellant supplied the only evidence of the large number of offences.

In the course of the plea his Honour responded to a submission by the appellant's counsel that she was "genuinely remorseful" and frankly admitted the offences by saying:

"You say that, but one of the difficulties with that submission is that she has re-offended after having been charged on these other offences, and I think that totally destroys that - she might have been appearing to be co-operative with the police, but then she is bailed and goes off to re-offend."

"Although it could be said on your behalf that you readily admitted your crimes to the police when you were apprehended, the fact that you substantially or immediately re-offended straight after you had been released on bail is an aggravating factor."

Counsel for the appellant submitted that these remarks show that the sentencing judge failed to give sufficient weight to the fact that the appellant provided the evidence of the full range of her offences[35] and fell into the trap of failing to give any weight to a mitigating factor by treating its effect as cancelled by an aggravating factor[36], when each factor should have been considered on its own merits.

In my opinion it is more significant that the sentencing judge later said at the conclusion of his sentencing remarks:

"I have taken into account, despite what I have said, that you have pleaded guilty and you have to a significant degree co-operated with the police."

I interpret the sentencing judge's earlier remarks as reflecting the apparent contradiction that the appellant should freely confess her crimes and appear contrite and then immediately re-offend.[37] Ultimately, his Honour did recognise the appellant's co-operation and I do not think it appears from the sentence that the factor was given insufficient weight.

I have concluded that the sentencing discretion was vitiated by specific error and accordingly the appellant must be re-sentenced.

There were, as I have said, significant mitigating factors which the appellant could pray in aid. The appellant fully co-operated with the police, even to the extent of disclosing offences of which the Crown had no other evidence. The appellant pleaded guilty. As her offending was apparently driven by her need for money to meet her addiction to heroin, the prospect of the appellant's successful rehabilitation is largely dependent upon whether she can conquer her addiction. The fact that, while in prison, the appellant participated in courses designed to combat drug addiction offers some hope for the future. Nevertheless, the crimes were serious. They were pre-meditated, conducted in the manner of a business and occurred over a lengthy period of time. The appellant's history of previous convictions displays a drug addict's disregard of the law.

I would not interfere with the sentences imposed by his Honour for counts 1 to 26 of one month's imprisonment, even though in the case of certain of the thefts the punishment may be viewed as lenient. I would re-sentence the appellant to a term of six months' imprisonment on count 27 and to a term of two years and six months' imprisonment on count 28. I would order that the sentences imposed in respect of counts 1 to 26 be cumulated upon each other and upon the sentence imposed on count 28, thereby creating a total effective sentence of four years and eight months' imprisonment.[38] I would fix a period of two years and eight months before the appellant is to be eligible for parole.

[1] For convenience' sake I shall continue to call Ms Beary "the appellant", as the conviction application was an afterthought, brought after a plea of guilty.

[2] The relevant provisions are set out in the judgment of Buchanan, J.A.

[3] [2004] UKHL 50 decided 25 November 2004, at para.[3].

[4] At para.[35] fn.29**,** as contained in The Money Trail at pp.257-258.

[5] 17 offences(!) were admitted to have been committed on 28 May 2002, as evidenced by the pleas to counts 10 to 26.

[6] I doubt that it is possible to structure an entirely satisfactory sentence, having regard to the deficiencies in the repealed legislation and the presentment.

[9] Unreported, Court of Appeal, 3rd June 1996 at 11-12.

[14] R. v. J (No. 2) [1998] 3 V.R. 602 at 634 fn 1.

[16] The cases include R. v. RJE [1999] VSCA 79 at [10]- [13]; R. v. Sivov [2000] VSCA 7 at [14]; R. v. Dennis [2000] VSCA 81; (2000) 114 A.Crim.R. 33 at 37 [14]- [15]; R. v. PBW [2003] VSCA 114 at [16]- [19]; R. v. DH [2003] VSCA 220 at [2] and [17]-[18] and R. v. Magner [2004] VSCA 202 at [30]- [37]. See also R. v. Fox [2003] VSCA 138 at [18].

[17] In that case Brooking J.A. did refer to R. v. Ma (unreported, Court of Appeal, 18th March 1998) at 5-6 and 11, where s.5(2)(a) was mentioned. R. v. Hung Quoc Chau (unreported, Court of Criminal Appeal, 31st July 1991), to which reference was also made, was decided under legislation that did not contain a provision equivalent to s.5(2)(a).

[19] Thus all that R. v. DH decided, apart from reaffirming the principle, was that the errors identified were not material in the circumstances of that case. That is made clear by R. v. Magner.

[22] [1936] HCA 40; (1936) 55 C.L.R. 499 at 504-505. See also Cranssen v. R. [1936] HCA 42; (1936) 55 C.L.R. 509 at 519-520.

[24] Crimes Act 1958, s.568(4).

[25] [1923] 2 K.B. 400 at 403. See R. v. Parsons [1998] 2 V.R. 478 at 482 per Winneke, P. The alternatives expressed by Avory, J. are not exhaustive: R. v. Coffey [2003] VSCA 155; (2003) 6 V.R. 543 at 545 [6] per Callaway, J.A.

[28] See R. v. Coffey, above at 550-1 [23] per Callaway, J.A.

[29] D. Chaikin, Investigating Criminal and Corporate Money Trails, in B. Fisse et al (eds). The Money Trail: Confiscation of Proceeds of Crime, Money Laundering and Cash Transaction Reporting, Law Book Co., Sydney, 1992 at p.258 et seq.

[30] Victorian Hansard, 13 November 1997, pp.1146-7.

[31] Six years after it was enacted, s.122 was replaced by an offence which may be no narrower. See the Crimes (Money Laundering) Act 2003.

[33] Above at 38. This passage was endorsed by the Court of Criminal Appeal in R. v. Medcraft (1992) 60 A.Crim.R. 181 at 187-8 and by this Court in R. v. Newman and Turnbull [1997] 1 V.R. 146 at 152.

[34] Even though the maximum sentence for money laundering was higher than that for theft.

[35] R. v. Ellis (1986) 6 N.S.W.L.R. 603; Ryan v. R. (2001) 206 C.L.R. 267.

[36] R. v. Hall (1994) 76 A.Crim.R. 454 at 469 per Crockett and Southwell, JJ.; R. v. Rainford [2003] VSCA 49 at [19] per Callaway, J.A.

[37] An explanation is that the appellant was truly remorseful but was in thrall to her addiction.

[38] Section 16(3C) of the Sentencing Act 1991 provides that every term of imprisonment imposed for an offence committed by a person when released on bail must, unless otherwise directed by the Court, be served cumulatively on any other sentences imposed on the offender. It would be possible to draw distinctions as to cumulation between the offences committed before and after bail was granted to the appellant, just as it would be possible to impose sentences for the individual thefts which reflected the different values of the stolen goods. In the present case I consider that a broad brush approach is appropriate.

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