R v Roussety [2008] VSCA 259

Court of Appeal (Vic)|2008-12-17|Before: VINCENT, NETTLE, ASHLEY, REDLICH and WEINBERG, JJA

CRIMINAL LAW - Sentencing - Obtaining property by deception and obtaining financial advantage by deception - Numerous counts - Whether judge erred in relying on offences committed prior to commencement of continuing criminal enterprise - Whether manifestly excessive and in breach of totality - Whether judge gave sufficient regard to plea of guilty and prospects of rehabilitation - Sentenced to a term of 11 years and two months' imprisonment with a non-parole period of eight years - Appeal allowed - Appellant re-sentenced to 11 years and one months' imprisonment with a non-parole period of seven years - Sentencing Act 1991 Part 2B, ss 6H(a), (b), (c), 21, 81(1) and (1) - followed_,_ , not followed.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I agree that this appeal should be allowed and the appellant re-sentenced as proposed by Nettle JA in his judgment. Perhaps not unsurprisingly, I find my own reasoning in Arundell[1] quite persuasive and am comforted that other members of the Court agree that the decision was correct. There is, I also accept, some force in Nettle JA's criticism of the reasoning of the majority judgment in which I joined in Grossi.[2] However, and without debating the point, I remain unpersuaded that the alternative interpretation is much less problematic. Accordingly, I find myself unable to recant. Regrettably, the provisions in Part 2B of the Sentencing Act were not well drafted and, as Weinberg JA pointed out, however they are interpreted, there will be anomalies.

2 It appeared to me when considering the matter in Grossi to be highly unlikely that the legislature intended that, overall, a person who was found guilty of three relevant offences at the same time, perhaps arising out of the same course of conduct and not demonstrating a continuing propensity to engage in that type of behaviour would be, for sentencing purposes, in a worse position than an individual who had twice previously been found guilty of such offences and had demonstrated a tendency to recidivism. What could be the accident of separate presentation would result in quite different applicable maximum penalties applicable to the various offences.

3 As Nettle JA pointed out, I said in Arundell -[3]

... I am not unmindful of the differences in the provisions concerning serious violent offenders, serious sexual offenders, serious drug offenders serious arson offenders and continuing criminal enterprise offenders. To some extent those differences demonstrate the point. For example, in the case of serious sexual offences, many of the qualifying offences have not existed for many years and in relation to others, their elements have changed. There is no need to dwell upon these differences which can be seen to reflect the disparate forms of offending to which the provisions are applicable. What is evident is

that a number of categories of repeat offenders, who in different ways have been perceived as constituting a special risk to the community, have been created. Persons who fall within these categories are regarded as potentially liable to the imposition of a significantly increased maximum term of imprisonment should they continue to offend in relevantly similar fashion.

4 Be that as it may, as I indicated above, I agree in the disposition of this matter proposed by his Honour and otherwise for the reasons advanced by him.

5 On 13 March 2007 the appellant pleaded guilty before a judge of the County Court at Melbourne to 38 counts of obtaining property by deception (Counts 1-12, 14-22, 30-32, 34-35, 37-45 and 47-49); 10 counts of obtaining financial advantage by deception (Counts 13, 23-28, 33, 36 and 46); and one count of theft (Count 29). After hearing a plea in mitigation of penalty, on 16 April 2007 the judge sentenced the appellant, in the manner described in the attached schedule, to a total effective sentence of 11 years and two months' imprisonment with a non-parole period of eight years. On 23 April 2007, the appellant filed a notice of application for leave to appeal against sentence and, on 14 March 2008, a single judge of this court granted leave to appeal pursuant to s 582 of the Crimes Act 1958. The grounds of appeal are that:

Ground 1: The total effective sentence and non-parole period are manifestly excessive and in breach of totality.

Ground 2: The judge erred in failing to pay any or sufficient regard to:

(a) the fact that the actual monetary loss to the victims was far less than the value of the financial advantage or property obtained;

(b) the appellant's offending resulted from his attempts to keep the business afloat and he always intended to repay the funds advanced;

(d) the added burden of imprisonment on the appellant in serving his sentence in Victoria away from his family, who live in Queensland;

(e) counsel's unchallenged submission that the combination of mitigating factors ought to lead to the fixing of 'a low minimum term'.

(a) in relying on the offences committed prior to the commencement of the continuing criminal enterprise offender provisions (Counts 2-5) as 'qualifying offences';

(b) in sentencing the appellant as a continuing criminal enterprise offender on, and thereby applying the higher maximum penalty to, Counts 7 and 8.

6 The appeal first came on for hearing before three judges of this court on 17 June 2008. It then emerged that the appellant was seeking to advance Ground 3 as an additional ground of appeal and, therefore, to put into question the decision of this court in R v Arundell[4] that offences occurring before 1 July 1998 may be taken into account as 'qualifying offences' for the purposes of Part 2B of the Sentencing Act 1991. At the same time, the Crown gave notice that it sought to argue, contrary to the decision of the majority in R v Grossi,[5] that where an offender is found guilty in one proceeding of three or more Continuing Criminal Enterprise offences within the meaning of Part 2B, the offender is to be sentenced as a Continuing Criminal Enterprise offender in respect of all such offences and not just the third and subsequent offences. The matter was thus adjourned to enable the preparation of full argument and to convene a court of five members to hear the appeal.

On 15 October 2002, three companies of which the appellant was the director and controlling shareholder, n2n Group Pty Ltd; n2n Accounting and Tax Pty Ltd; and Roussety and Co Pty Ltd, were put into receivership.
The receiver, Simon Wallace-Smith of Deloitte Touche Tohmatsu, was appointed by the Australian and New Zealand Banking Group Ltd pursuant to a fixed and floating charge over the assets of each of the companies.
Until the appointment of the receiver, the companies had been engaged in a range of business activities, including the development and marketing of the n2n Brand as a franchised premium accounting practice, nationally, accounting and franchising services, and investment advice and arrangements, principally through the establishment of a first mortgage scheme and through a number of joint ventures with property developers.
On 25 October 2002, ten days after the receiver was appointed, the appellant declared himself bankrupt.
Following his appointment, Mr Wallace-Smith became concerned that investments into which the appellant had purported to place investor's funds, such as mortgages over residential properties, aged care facilities and commercial properties, did not appear to exist. Allegations made by three of the appellant's former clients, Dr Christopher McCormack, Mr Dale Harrison and Mr Neil White corroborated the receiver's concerns.
The investigation which followed revealed a pattern of sustained systematic defalcation.
Counts 1 and 6 concerned Andkar Pty Ltd. Andrew Wagstaff was the sole Director of Andkar Pty Ltd, which was formed to purchase the Bob Jane T-Mart franchise at Fountain Gate. That company was the corporate trustee of the Andkar Superannuation Fund. The appellant was the preferred accountant for the Bob Jane T-Mart franchises and thereby established a relationship with Mr Wagstaff. On 23 June 1997, the appellant invited Mr Wagstaff to invest in a property mortgage and Mr Wagstaff, on behalf of Andkar Pty Ltd committed $10,000 to the investment. The investment was supposed to be secured by a mortgage over 17B Evelina Street, North Box Hill. That address does not exist and the owner of 17 Evelina Street, North Box Hill has no knowledge of the mortgage (Count 1).
On 22 April 1998, the appellant caused Mr Wagstaff to invest a further $10,000 in a supposed TAB Corp syndicate. There is no accounting for the money in the financial returns of the appellant's company and Mr Wagstaff and other victims have been unable to recover any of their moneys (Count 6).
Counts 2 and 3 concerned Mr John Scarlett and John Scarlett Pty Ltd. John Scarlett is a director of John Scarlett Pty Ltd which acts as a corporate trustee of J and S Scarlett Superannuation Fund. The appellant began acting as Mr Scarlett's accountant in 1994. He invited Mr Scarlett to participate in investments which the appellant said would be secured by property mortgages. The first investment was made in September 1997. Additional investments were made and others were rolled over into new investments on subsequent redemption dates. The total so invested was $100,000. The investments, were purportedly secured by a mortgage over property at 18 Evelina Street, Box Hill. The mortgage did not exist (Count 2).
John Scarlett Security Pty Ltd also made an investment in the amount of $50,000 on the basis that it would be secured by a mortgage over real estate. In a written agreement with John Scarlett Security Pty Ltd, the appellant represented that the investment was secured by mortgage over the property situate at 199 Main Road, Lower Plenty. In fact that property belonged to the appellant's estranged wife and she knew nothing of the mortgage (Count 3). In December 2000 and March 2001, the appellant reimbursed the amount of the investments
Counts 4, 5, 7, 8, 9, 10, 11, 37, 38, 40 and 41 concerned Puppure Pty Ltd. Mr Leon Levin was a Director of Puppure Pty Ltd and that company acted as corporate trustee of the Levin Superannuation Fund. Mr Levin was introduced to the appellant in early 1988 and began making investments with him on behalf of the Levin Superannuation Fund. He continued to do so up until September 2002. Apart from one investment in a TAB syndicate, all such investments were supposed to be secured by mortgages over real estate, and the appellant provided Mr Levin with documentation purporting to confirm his investments and particulars of the properties said to be the subject of the mortgages. One of those properties was related to another victim, Mr Drew, and the owners of the other properties, 18 Evelina Street, Box Hill and 13 Kasouka Road, Camberwell, had no knowledge of the existence of any mortgages. When the appellant's companies were placed in receivership, Mr Levin was owed an amount of $625,000 representing virtually all of his retirement funds. At the time of the appellant's sentencing, Mr Levin was 72 years of age and left destitute as a result of the appellant's fraud.
Count 4 related to $80,000 which Mr Scarlett invested on 21 January 1998, supposedly in a mortgage security. The mortgage did not exist. Count 5 related to $97,149.55 which Mr Scarlett invested on 15 March 1998 on the basis that it would be secured by TAB Limited shares. Those shares cannot be traced. Count 7 related to $300,000 which Mr Scarlett invested on 1 November 1998, supposedly in a real property mortgage security. The mortgage did not exist. Count 8 related to $400,000 which Mr Scarlett invested on 5 November 1999 supposedly in a real property mortgage security. That mortgage did not exist. Count 9 related to $20,000 which Mr Scarlett invested on 14 December 1999 supposedly in a real property mortgage security. It did not exist. Count 10 related to $90,000 which Mr Scarlett invested on 16 April 2000 in a real property mortgage security. It did not exist. Count 11 related to $100,000 invested on 9 March 2000 supposedly in a mortgage over real estate. It did not exist. Count 37 related to $100,000 invested on 26 February 2002 supposedly in a real property mortgage. It did not exist. Count 38 related to $300,000 invested on 28 February 2002 supposedly in a real property mortgage. It did not exist. Count 40 related to $60,000 invested on 5 April 2002 supposedly in a mortgage over real estate. It did not exist. Count 41 related to $115,000 invested on 19 April 2002 purportedly in a mortgage over real estate. That mortgage did not exist.
Count 12 concerned Darwell Investment Management Services Ltd (Darwell). It was a company, incorporated in the British Virgin Isles, of which Mr Adrian Aston was the authorised representative. In June 2000, Mr Aston, acting on behalf of Darwell, invested an amount of $250,000 with the appellant on the basis that the investment would be secured by a first charge over a piece of property. At the end of the initial redemption period, the investment was rolled over until November 2000. After that, Mr Aston experienced difficulties in redeeming the investment. The appellant eventually made a payment of $180,000, but the balance was not forthcoming and proceedings were issued. The appellant then provided as security a purported mortgage over the property at 13 Rosalie Avenue, Dromana. That property was owned by the appellant's sister and she had no knowledge of the mortgage.
Count 13 concerned Mr V.R. Clarke. Mr Clarke operated the Bob Jane T-Mart franchise in Box Hill and through that was introduced to the appellant. In July 2000, he made an investment with the appellant and in March 2001 it was rolled over in an amount of $123,697.95 and supposedly secured by a mortgage over the property situate at 112 Little Bourke Street, Melbourne. The mortgage was a sham. The property at 112 Little Bourke Street, Melbourne, was used or purported to have been used in connection other investors including Kay Holding Pty Ltd, David Thomas and Neil White. In fact the property was occupied by client/investors, William and Elizabeth Lew who knew nothing of the mortgages. They had owned and operated a restaurant at 112 Little Bourke Street, Melbourne from the early 1980s until the restaurant was sold in the early 1990s and no longer owned the real estate.
Counts 14 and 19 concerned Kay Holdings Pty Ltd. Anthony Kay was a director of Kay Holdings Pty Ltd which was a company was set up to purchase and operate the Bob Jane T-Mart franchise outlet in North Melbourne. It was also the corporate trustee for Kay Holdings Superannuation Fund. The appellant was the recommended accountant for Bob Jane T-Mart franchises and thus became an adviser to Kay Holdings. The appellant invited Mr Kay to participate in mortgage investment schemes and he invested varied amounts between 2000 and February 2002 supposedly on the basis of mortgage security over 17A Evelina Street, Box Hill North and 112 Little Bourke Street, Melbourne. The Box Hill address was non-existent and the owners of the Little Bourke Street property denied the existence of any such mortgage. The money has not been repaid. Count 14 was a between the dates count and covered $25,000 invested on 28 July 2000, $20,000 invested on 1 March 2001 and $20,000 invested on 10 April 2001. Count 19 was concerned with a separate $50,000, also invested on 10 April 2001.
Count 15 concerned Graham Grieve. Mr Grieve was a Director of Jenset Pty Ltd and Maclaw Number 254 Pty Ltd, which operated Baker's Delight franchises. Mr Grieve first met the appellant when he operated a Bob Jane T-Mart franchise in Salisbury, South Australia. In August 2000, Mr Grieve invested the sum of $30,000 on the basis that it was to be secured by a first mortgage. The mortgage was non-existent but the appellant reimbursed Mr Grieve the amount of principal and interest in April 2002
Counts 16 and 42 concerned Dr G.J. McCormack. Dr McCormack first met the appellant socially, several months before the appellant approached him as a potential investor. Dr McCormack made some early investments in property mortgages and they were later rolled over a number of times, until the appellant persuaded McCormack to invest $210,000 in the impending public float of N.N.G Ltd. (which he was told would entitle him to 15 per cent of the issued capital). The funds were to be held in trust until the float was completed and the completion date was later extended to June 2001 on the basis that one of the investors, Westpac Bank, had not then come to an agreement with the appellant. Dr McCormack then waited another 12 months for the return of his investment but it was not forthcoming. Instead, in April 2002 the appellant invited Dr McCormack to invest in a $500,000 mortgage loan to a Doncaster Engineer and Dr McCormack contributed $100,000 to the mortgage on the basis that it was supposed to yield him a 10 per cent return on funds (Count 42). Dr McCormack later became aware that the appellant was experiencing financial difficulties, and so telephoned the supposed mortgagor, Wayne Drew, who turned out to be another victim of the appellant's fraud. Mr Drew had inspected McCormack's property in September 2001 and advanced $550,000 on the basis that it was to be secured by a mortgage over Dr McCormack's property. Dr McCormack lost at least $350,000 of the funds which he invested with the appellant.
Counts 17, 30, 39 and 47 concerned Mr Drew. From December 2000 to March 2002, Mr Drew invested a total of $550,000 with the appellant on the basis of assurances that the investments were secured by first mortgages over residential property - in fact Dr McCormack's property. In mid to late 2002, Mr Drew received a telephone call from Dr McCormack and then learned that he had been defrauded. The appellant had forged Mr Drew's signature on mortgage documents given to Dr McCormack. Count 17 was a between the dates count and concerned $10,000 invested on 23 December 2000, $30,000 on 24 August 2001 and $30,000 on 6 September 2001. Count 30 concerned $120,000 invested on 11 September 2001 in relation to another non-existent mortgage. Count 39 related to another investment in a purported mortgage over real estate. Count 47 concerned a similar investment of $50,000 on 11 July 2002.
Count 18 related to Mr David Thomas and his company Whiteview Pty Ltd. Whiteview Pty Ltd operated a Bob Jane T-Mart franchise in Springvale and as a result of that, Mr Thomas had been associated with the appellant since 1992. Mr Thomas decided to use the appellant's accounting services and was invited to invest in a mortgage scheme. He lodged an amount of $30,000 in December 2000 and received interest payments, but the principal has not been returned. The investment was rolled over a number of times and the appellant provided a document in March 2001 which purported to identify the secured property as 112 Little Bourke Street, Melbourne. There was no such mortgage.
Counts 20, 21, 22, 31 and 34 related to Mr Neil White. He first met the appellant when he engaged his franchising counselling services in 2000 and 2001. During 2001 the appellant offered Mr White the opportunity to invest in mortgages. He accepted the offer and made an initial investment of $50,000, increasing to $250,000 over the next six months, and then twice rolled over the investment on the appellant's advice. The appellant gave him documentation recording the mortgage property as 112 Little Bourke Street, Melbourne and the borrowers as Bill and Elizabeth Lew. Early in 2002, the appellant approached Mr White and requested that he advance a further $700,000 (Count 34) to be secured by property mortgages. Mr White agreed and transferred $700,000 from Mr White's father's retirement funds to the R.C. Trust account of Roussety and Co. Pty Ltd. The mortgage was non-existent and none of the moneys have been repaid. Count 20 relates to $100,000 invested on 18 May 2001. The mortgage did not exist. Count 21 relates to $50,000 invested on 30 May 2001, Count 22 to $50,000 invested on 25 June 2001 and Count 31 relates to $50,000 invested on 20 September 2001.
Counts 23, 24, 25, 26, 27, 28 and 33 covered seven offences of obtaining financial advantage in relation to the Macquarie Bank Limited. The appellant on his own behalf and on behalf of his companies sought and obtained a number of funding facilities from the bank on 26 June 2001 in order to discharge current facilities with Aussie Home Loans and the National Australia Bank Ltd. In order to induce the bank to advance the funds, he falsely represented that he was able to offer as security mortgages over 30 Clarke Avenue, Caulfield in the name of Antoine Maurice Roussety, 11 Evelina Street, Box Hill North in the name of Antoine Maurice Roussety, in his own capacity and as trustee for the Evelina Street Trust, and 3 Glamis Street, Berry's Beach, Phillip Island in the name of Antoine Maurice Roussety. He also made false representations as to the financial position of a number of his companies. Counts 23 to 28 were all counts of falsely representing security for the facility, namely, that 11 Evelina Street, Box Hill North was available as security, and further failing to disclose a material liability, both personally and in relation to companies under his control.
Count 29 was a count of theft. During 1992, Mrs Lew's mother, who lived in Hong Kong, sold a property in Hong Kong and used part of the proceeds of the sale to establish a trust fund for her grandchildren, in the sum of $190,738.22. On receipt of the money from her mother, Mrs Lew placed it with the appellant to hold on trust for her children and on 1 November 1992, Mr and Mrs Lew entered into a deed of bare trust appointing the appellant as trustee of the Evelina Street Trust. On 11 December 1992, the Lew's executed a transfer on the property, transferring the property from William Lew and Associates Pty Ltd to the appellant, to hold on trust for their children. Neither Mr nor Mrs Lew or their children received any of the consideration, although the Lew's acknowledged that approximately $120,000 was used to discharge the existing mortgage over the property. On about 17 October 2002, the appellant attended the property and told Mr and Mrs Lew that he had lost everything due to a failed property development venture and that they were likely to lose their family home. It then emerged that the appellant had mortgaged the property to secure advances for his own use, as follows.
- On 6 January 2000 to Perpetual Trustees Australia Limited, securing advances totalling $300,000;
- On 26 June 2001, to Macquarie Bank, securing advances totalling $659,000; and
- On 25 August 2002, to Australia and New Zealand Banking Group Pty Ltd, securing advances totalling $5,000,000.
Counts, 32 and 49 concerned Midon Pty Ltd. Joyce Ryding was the director of that company. It was formed to act as trustee of the Ryding family trust and as such made investments with the appellant's companies in mortgage securities. An initial investment of $60,000 was made in October 2000 and rolled over into a new investment on 8 August 2002. The appellant provided false security documentation representing that mortgages were held in relation to 13 Rosalie Avenue, Dromana, and 7 Howard Court, Doncaster. Midon Pty Ltd has not been reimbursed any of its investment of $60,000.
Counts 35, 44 and 45 concerned Dale Harrison, who was introduced to the accused by Mr White in November 2001. About a month later, the appellant telephone Mr Harrison and offered him the opportunity of investing in what he described as a first mortgage over residential property in Melbourne. Mr Harrison was promised 20 to 25 per cent interest over a three month period and subsequently invested the amount of $250,000 on that basis. When Mr Harrison requested the return of the funds in March 2002, the appellant repaid the principal and approximately one month later he paid interest of approximately $8,000. Sometime after that, the appellant telephoned Mr Harrison and asked whether he wanted to invest in another first mortgage over a property in Camberwell. A three month term was offered with interest at 18 per cent. Mr Harrison invested $250,000 and lost it all (Count 35). Count 44 concerned $100,000 invested on 20 June 2002 and Count 45 concerned $150,000 invested on 27 June 2002.
Count 36 was a count of obtaining a financial advantage for another, namely, Oldrcp Pty Ltd. The Australian Taxation Office was pursuing Oldrcp for payment of a tax debt of $350,000 and, in order to delay recovery action and satisfaction of the liability, the appellant provided a false letter of offer from the ANZ Bank intimating that funding of $7,000,000 was imminent and that outstanding debts could eventually be paid.
Count 43 related to Dental Innovation Pty Ltd. Mr Mervyn Saultry who was a director of that company and was introduced to the appellant by an associate. The appellant invited Mr Saultry to participate in a mortgage investment and in May 2002 he did invest an amount of $50,000 on the basis that it was to be secured by a mortgage over 13 Kasouka Road in Camberwell. There was no such mortgage. That investment was returned to Mr Saultry around the time of the redemption date.
Count 46 was a count of obtaining financial advantage by deception from the ANZ Banking Group in order to refinance the Macquarie facilities earlier referred to. The appellant provided false consolidated financial returns to ANZ in support of the application for credit. The returns were misleading in that they failed to disclose a substantial liability to Gold Ribbon. The appellant also falsely represented to ANZ that he was the beneficial owner of 11 Evelina Street, Box Hill North.
Count 48 concerned Mr Peter Wagstaff, a retired accountant who met the appellant through his association with his son's Bob Jane T-Mart outlets at Fountain Gate. In August 2002, Mr Wagstaff gave two amounts of $10,000 to the appellant on the basis that their repayment was to be secured by mortgages over real estate. Those funds have not been returned.

8 In total, the financial advantage which the appellant obtained as a result of all counts exceeded $15 million but, because he used the proceeds of many of the later offences to repay victims of earlier committed offences, the amount lost was limited to a little more than $3.2 million, comprised as follows:

Kay Holdings Pty Ltd ATF The Kay Holdings Superannuation Fund

9 The appellant was first interviewed by police on 7 December 2004. He then expressed a willingness to cooperate but, on legal advice, declined to make any comment. Further investigations were thus undertaken and that led to the discovery of additional offences. At the completion of those investigations, the appellant was given the opportunity of a second police interview, but he declined. He later stated through his legal representatives that he wished to plead guilty to appropriate charges. He was charged on 11 November 2005 and indicated at the first reasonable opportunity that he would plead guilty.

10 Section 6H of the Sentencing Act 1991 defines a 'continuing criminal enterprise offender' as follows:

continuing criminal enterprise offender means an offender who is found guilty of-

(a) a continuing criminal enterprise offence and who in another trial or hearing or more than one other trial or hearing had been found guilty of 2 or more relevant offences;

(b) 2 continuing criminal enterprise offences and who in another trial or hearing had been found guilty of a relevant offence;

(c) 3 or more continuing criminal enterprise offences;

11 'Continuing criminal enterprise offence' is defined in the same section as an offence referred to in Schedule 1A and Schedule 1A includes, among other offences, obtaining property by deception (s 81(1) where the value of the property obtained is $50,000 or more) and obtaining financial advantage by deception (s 82(1) where the value of the financial advantage obtained is $50,000 or more).

12 'Relevant offence' is defined in s 6H(1) as follows:

relevant offence, in relation to a continuing criminal enterprise offence, means a continuing criminal enterprise offence of which an offender has been found guilty within the period of 10 years before the date on which the later offence was committed.

13 Section 6H(2) provides that:

(2) For the purposes of the definition of relevant offence in subsection (1), if an offence of which an offender has been found guilty was committed between two dates, the offence was committed on the earlier date.

14 Section 6I doubles the maximum term of imprisonment applicable a continuing criminal enterprise offender, thus:

6I Increased maximum penalty for CCE offences

(1) A continuing criminal enterprise offender is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment of 2 times the length of the maximum term prescribed for the offence or 25 years, whichever is the lesser.

(2) This section has effect despite anything to the contrary in this or any other Act.

15 The first question for the purposes of Ground 3 is whether an offence committed before the commencement of s 6H is capable of being a relevant offence, or whether, in order to qualify as a relevant offence, an offence must have been committed after s 6H came into force.

16 In Arundell,[6] Vincent JA, with whom Phillips CJ and Cummins AJA agreed, held that an offence was capable of qualifying as a relevant offence regardless of whether it was committed before or after Part 2B came into force:

[18] Whether approached as a matter of common law, the terms of Pt2B or by reference to s114(1), there would seem to be no room for doubt that a person can only be sentenced as a continuing criminal enterprise offender for an offence committed on or after 1 July 1998. There is certainly nothing in the language in which the provisions are expressed which could give rise to the suggestion that Parliament intended to set to one side the long accepted principle of the common law incorporated into the Sentencing Act by s114(1) nor could any such intention be inferred from the legislative policy underlying them. The position is, in my opinion, sufficiently apparent and the principles upon which this conclusion rests are so well recognized and entrenched to require no further discussion or the recitation of authority. It does not follow, however, from its acceptance that any qualifying offence must also have been committed during the period after the enactment come into effect. Indeed that view has not been adopted with respect to other categories of offenders who, by reason of the commission of a requisite number of relevant offences, the legislature has decided should be rendered subject to the operation of a more rigorous sentencing regime.

[19] ...

[20] ...

[21] It is well recognized that that legislation is not regarded as having retrospective operation merely by reason of the possibility that the incidence or extent of potential liability for future conduct may be dependent upon the occurrence of past events. The sentencing judge in the present matter cannot be seen to have departed from this principle. The provisions in question attach no new legal consequences to facts or events which occurred prior to the commencement of the enactment under consideration in the sense that it interferes with any existing rights, duties or liabilities. They operate prospectively upon offences committed after commencement.

[22] Parliament has, through the enactment of Pt2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community. That propensity may become apparent in the case of the commission of a relevant offence on or after 1 July 1998 when regard is had to other similar offences whether committed before or after that date.

17 Counsel for the appellant argues against that construction of Part 2B that it flies in the face of the presumption against retrospectivity. In his submission, it amounts to attaching new legal consequences to events occurring prior to the commencement of the part and thus rendering as qualifying offences behaviour that was neither so classified nor even the subject of a finding of guilt at the time of its inception.

18 In my view the argument is not persuasive. It confuses a statute which operates retrospectively, by altering rights or liabilities accrued as a result of events which have occurred before the coming into force of the statute, with a statute which operates prospectively, by taking account of antecedent facts and circumstances as a basis for future prescription. As the Full Court explained in Robertson v City of Nunawading:[7]

The other statement, that of Dixon, J, is as follows:--

The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.

It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that: Maxwell on Interpretation of Statutes.[8] The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way 'as to impair an existing right or obligation' or 'as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events'.[9]

19 Pearce and Geddes[10] cite several cases which demonstrate the distinction. In Re a Solicitor's Clerk,[11] a law clerk was convicted of theft in 1953 when the existence of the conviction was not a bar to being employed by a solicitor. The legislation was later amended to prohibit any clerk who had been convicted of such an offence continuing to be so employed. The court rejected an argument that the amendment was retrospective in operation. Although the amendment operated on offences committed before the coming into force of the amendment, it applied only to employment by a solicitor after the coming into force of the amendment. Similarly, in La Macchia v Minister for Primary Industry,[12] a fisherman was convicted of an offence when such a conviction had no effect upon his fisherman's licence. Subsequently, legislation was introduced which permitted the cancellation of a fisherman's licence if the holder of the licence had been convicted of such an offence. Following the reasoning in Re a Solicitor's Clerk, the Federal Court held the legislation to be prospective in operation, in that it operated only in respect of the period after the coming into force of the amendment.

20 Those cases may be contrasted with Bakker v Stewart,[13] where the court held that the repeal of the power to discharge a drink driving offender on a good behaviour bond did not apply to a drink driving offence committed before the coming into force of the amendment. The reasoning in the case is not altogether clear, but it may be rationalised on the basis that, if the amendment were not read as confined to offences committed after the enactment of the amendment, it could be seen as imposing a greater liability in respect of earlier committed offences.

21 As the court observed in Arundell, Part 2B does not alter any rights or liabilities brought into existence by reason of offences committed before the coming into force of that Part. Unlike the amendment considered in Bakker v Stewart, it does not purport to alter and it does not alter the penalty applicable to an offence committed before the coming into force of the Part. The only penalties to which it applies are those attaching to offences committed after the coming into force of the Part; albeit that, just as in Re a Solicitor and Le Macchia, it does so by reference to events which may have gone before.

22 Counsel for the appellant argued that the Arundell construction of Part 2B ill accords with the absence of any express transitional provisions to the effect that offences committed before the coming into force of the Part are to be taken into account for the purposes of the penalty to be imposed in respect of offences committed after the coming into force of the Part. In my view, however, that argument takes the matter no further. The plain and ordinary meaning of the definition of 'relevant offence' in s 6H includes offences whether committed before or after the coming into force of the section. There was no need for a transitional provision to make that intention clear.

23 Counsel for the appellant advanced a further argument that, in contradistinction to the serious offender provisions in Part 2A of the Act (which, by reference to the offences listed in Schedule 1, treat relevant offences as including some 'old' offences[14] that ceased to exist before the commencement of Part 2A), the continuing criminal enterprise provisions of Part 2B are directed to the offences listed in Schedule 1A (and they do not include any 'old' offences). In counsel's submission, that difference demonstrates that, whereas in the case of the serious offender provisions, Parliament intended to make offences committed before the commencement of Part 2A relevant offences for the purposes of that part, in the case of the Continuing Criminal Enterprise provisions of Part 2B, Parliament did not intend the notion of relevant offences to extend to offences committed before the commencement of the part.

24 I reject that argument. The court dealt with it in Arundell as follows:

[19] In making these statements, I am not unmindful of the differences in the provisions concerning serious violent offenders, serious sexual offenders, serious drug offenders serious arson offenders and continuing criminal enterprise offenders. To some extent those differences demonstrate the point. For example, in the case of serious sexual offences, many of the qualifying offences have not existed for many years and in relation to others, their elements have changed. There is no need to dwell upon these differences which can be seen to reflect the disparate forms of offending to which the provisions are applicable. What is evident is that a number of categories of repeat offenders, who in different ways have been perceived as constituting a special risk to the community, have been created. Persons who fall within these categories are regarded as potentially liable to the imposition of a significantly increased maximum term of imprisonment should they continue to offend in relevantly similar fashion.

With respect, I agree. Moreover, as was observed in the course of oral argument, the operation of Part 2B is limited by the definition of 'relevant offence' in s 6H(1) to offences committed no earlier than ten years before the coming into force of the Part. There were no changes to the offences the subject of Schedule 1A during that period.

25 Finally, as to the construction of Part 2B, counsel argued that, unlike the provisions of Part 2A, which do no more than expose offenders to a mild alteration in sentencing principles for certain offences, the Continuing Criminal Enterprise provisions expose offenders to a much more drastic regime of double the maximum penalty for certain offences. In counsel's submission, those consequences are such that the court should be very reluctant to enlarge liability for subsequent offences based on offending that occurred prior to the commencement of the relevant provisions.

26 The answer to that, however, is that 'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance ...'.[15] The ordinary rules of statutory construction are to be applied and it is only where they yield ambiguity or doubt that it is to be resolved in favour of the subject. Of course, that does not exclude the need for caution before accepting any loose albeit practical construction of a penal provision.[16] But in this case, the ordinary rules of statutory construction yield a clear statutory intention that relevant offences include offences committed before the coming into force of Part 2B.

27 The remaining point for consideration under Ground 3 is whether the majority's decision in R v Grossi[17] was correct. The Crown contends that the court should reject the majority's interpretation of s 6I(1) of the Act in favour of Redlich JA's dissenting view that the section applies to all 'qualifying offences' for which a prisoner stands to be sentenced at the one trial.

28 The majority's analysis in Grossi centred on the differences between the terms of Part 2A and Part 2B. The relevant terms of Part 2A are:

6A Application of Part

This Part applies to a court in sentencing -

(a) a serious sexual offender for a sexual offence or a violent offence;

(b) a serious violent offender for a serious violent offence;

(c) a serious drug offender for a drug offence;

(d) a serious arson offender for an arson offence.

6B Definitions for purposes of this Part

(1) In this Part -

arson offence means an offence to which clause 5 of Schedule 1 applies;

drug offence means an offence to which clause 4 of Schedule 1 applies;

serious violent offence means an offence to which clause 3 of Schedule 1 applies;

sexual offence means an offence to which clause 1 of Schedule 1 applies;

violent offence means an offence to which clause 2 of Schedule 1 applies.

(2) In this Part -

serious arson offender means an offender (other than a young offender) who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious drug offender means an offender (other than a young offender) who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious sexual offender means an offender (other than a young offender) -

(a) who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or

(b) who has been convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious violent offender means an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

(3) In this Part -

relevant offence, in relation to a serious offender, means -

(a) an arson offence in the case of a serious arson offender;

(b) a drug offence in the case of a serious drug offender;

(c) a sexual offence or a violent offence in the case of a serious sexual offender;

(d) a serious violent offence in the case of a serious violent offender;

serious offender means -

(a) serious arson offender; or

(b) serious drug offender; or

(c) serious sexual offender; or

(d) serious violent offender.

6C Factors relevant to consideration of whether offender is a serious offender

(1) In considering whether an offender being sentenced is a serious offender, a court must have regard to a conviction or convictions for a relevant offence irrespective of whether recorded -

(a) in the current trial or hearing; or

(b) in another trial or hearing; or

(c) in different trials or hearings held at different times; or

(d) in separate trials of different counts in the one presentment.

29 I earlier set out the relevant terms of Part 2B. It will be recalled that s 6H(1)(c) defines a 'continuing criminal enterprise offender' as including an offender who is found guilty of three or more continuing criminal enterprise offences and that s 6I provides that a continuing criminal enterprise offender is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment of twice the length of the maximum term prescribed for the offence or 25 years, whichever be less. As can be seen, therefore, the principal difference between the structures of Part 2A and Part 2B is that a serious offender is defined in Part 2A in terms of an offender who has been convicted and sentenced in respect of a specified number of offences and a continuing criminal enterprise offender is defined in Part 2B in terms of an offender who is found guilty of a specified number of offences. Despite that difference, the majority in Grossi held that a continuing criminal enterprise offender is liable to be sentenced as such only in respect of the third and any subsequent relevant offences of which he or she is convicted. Their reasoning was in six parts.

First, they observed that, although Part 2B defines a continuing criminal enterprise offender in terms of 'a person who has been found guilty'[18] of the specified number of offences, Part 2A of the Act defines serious offenders in terms which require the offender 'to have been convicted and sentenced'[19] for the specified number of offences.

Secondly, their Honours said that 'the presence of the requirement in Part 2A that the person be convicted and sentenced to a term of imprisonment and its absence in Part 2B does not dictate [the] conclusion'[20] ... that a person who is convicted of three or more CCE offences at the same time must be sentenced as a CCE offender on all of the offences and not just the third and subsequent offences.'[21]

Thirdly, they reasoned, that was so because, as they saw it, 'the purpose of both s 6C and s 6H was to treat a person who has been convicted of the requisite number of qualifying offences in the trial at which he or she falls to be sentenced (see s 6C(1)(a) and s 6H(1)(c)) in the same way as a person who has been convicted of some of the qualifying offences at an earlier or different trial (see s 6 C(1)(b)(c)(d) and s 6H(1)(a) and (b)).'[22]

Fourthly, they said, that view of the matter was supported by the consideration that 'it would be odd if the sentencing regime applicable to offenders who are found guilty of offences of dishonesty was harsher than that which applied to offenders convicted of serious arson, drug, sexual and violent offences.'[23]

Fifthly, as they saw it, that view of the matter was further supported by the consideration that 'If the same approach does not apply in interpreting Part 2B, a person who is convicted of three or more qualifying offences in the same trial is potentially liable to much higher penalties than a person who has been convicted of such offences in successive trials. In the latter case, the person will not be subjected to the higher penalties for the first or the first and second offence. In the former case, the offender will be subject to the higher penalties for all the offences.[24]

Finally, their Honours stated that the essential textual differences between Part 2A and Part 2B - specifically, the express requirement in Part 2A that an offender have been sentenced in respect of an offence before it may qualify as a relevant offence, and the absence of any such express requirement from Part 2B - was capable of being rationalised on the basis that:

the requirement [in Part 2A] serves as a mechanism to differentiate between an offence covered by cl 1, which, because of the characteristics of the offender or the circumstances in which it occurs, does not require a person to be sentenced to a term of imprisonment, and the same offence which, because of its seriousness, warrants a person being sentenced on the basis that their offending places other members of the community at serious risk of harm.[25]

By contrast, Sch 1A defines a CCE offence to cover various offences of dishonesty, where the value of the relevant property is $50,000 or more. Because the seriousness of the qualifying offence is defined by reference to a monetary sum it is unnecessary to require that the person has been sentenced to a term of imprisonment in order to differentiate between more and less serious CCE offences.[26]

30 In his dissenting judgment, Redlich JA took a different approach. His Honour noted that Part 2A and Part 2B were both introduced into the Sentencing Act 1991 in 1997 but that, whereas Part 2A was introduced by the Sentencing and Other Acts (Amendment) 1997 in terms requiring both conviction and sentence for qualifying offences, Part 2B was introduced by the Confiscation Act 1997 in terms calculated to impose:

a quite different sentencing regime for the purpose of the continuing criminal enterprise offender (s 6G-6J) to that used for the serious offender provisions (6A-6F), an offender becoming a CCE offender upon a finding of guilt without the requirement of being sentenced on a requisite number of CCE offences.[27]

31 Further, as his Honour observed, the rationale behind that difference could be discerned from the second reading speech to be to capture 'sustained repeat criminal behaviour' of which the discriminant was taken to be 'where a person is convicted of three [CCE] offences within ten years and the amount involved in each offence is more than $50,000'.[28]

An offender becomes a CCE offender upon being 'found guilty' of three qualifying offences. The offender need not have been sentenced for any of the three qualifying offences at the time they become a CCE offender.[29]

All three qualifying counts are CCE offences to which the increased maximum sentence applies.[30]

33 With respect, I consider that Redlich, JA's analysis is to be preferred. The differences between the essential terms of Parts 2A and 2B are too substantial to be sloughed off as the unintended inexactitudes of delinquent drafting. The precise three part classification of 'criminal enterprise offender' in s 6H(1) bespeaks an intention that the words of the section mean what they say. The absence from the section of a requirement that an offence have been the subject of sentence is not realistically to be viewed as an accident. Nor is the use of the present tense (as opposed to the present perfect tense in which s 6C is expressed) to be thought of as a mere syntactical happenstance. Rather, they should all be seen as calculated to provide for the classification of an offence as a qualifying offence immediately upon conviction.

34 At bottom, the reasoning of the majority in Grossi rests on the assumption that the purpose of s 6C and 6H is to treat cases in which a person has been convicted of the required number of qualifying offences in the trial at which he or she falls to be sentenced in the same way as a person who has been convicted of some of the qualifying offences in the trial at which he or she falls to be sentenced and some at an earlier or different trial. With respect, however, the evident purpose of s 6H is to provide differently for the sentencing of a criminal enterprise offender according to whether he or she stands trial and is convicted and sentenced in respect of at least one of the relevant offences before standing trial and being convicted and sentenced in respect of the remainder of them, or stands trial and is convicted and sentenced for the first three relevant offences at the one trial. As the majority in Grossi indeed observed, the sentence requirement in Part 2A is calculated to restrict relevant offences to those sufficiently serious to warrant a sentence of imprisonment, whereas the criterion of restriction for the purposes of Part 2B is a combined monetary limitation of at least $50,000 and a temporal limitation of ten years. So far from implying that a sentence requirement is to be taken as read in Part 2B, the distinction between the two sets of provisions implies just the opposite. A gaol sentence is undoubtedly the criterion of a serious offence, but the discriminant of a continuing criminal enterprise offence is simply the number of offences involving at least $50,000 for which the offender may be convicted within a period of ten years.

35 More generally, as Vincent, JA noted in Arundell, Parliament has through Part 2B expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour [scil. in repeated predatory behaviour within a given period of ten years], and consequently, as Redlich JA concluded in Grossi, the purpose behind Part 2B is to increase the punishment for scheduled criminal offences committed in that manner.[31]

36 Contrary, therefore, to the majority's reasoning in Grossi, there is nothing odd or surprising about the difference in operation between Part 2A and Part 2B which results from the plain and ordinary construction of s 6H(1). Part 2A is concerned with deterring the repetition over any period of time of offences so serious as to warrant gaol sentences. Part 2B is more precisely focused on the deterrence of sustained or continuing offending within a limited time span denoted by not less than three convictions within the space of ten years for offences of dishonesty involving not less than $50,000 each. Nor is there anything odd or surprising about the way in which Part 2B treats some classes of case more sternly than others. Once it is understood that the discriminant of a continuing criminal enterprise offence is convictions for three relevant offences within the space of ten years, it is not illogical that a continuing criminal offender who commits a series of relevant offences so much connected that he stands to be sentenced for all of them at the one trial should be sentenced as a continuing criminal offender in respect of all of them but that a continuing criminal offender whose relevant offences are so much disconnected that he is sentenced for one or two before being put up and tried and sentenced for the third, is sentenced as a continuing criminal offender only in respect of the third.

37 In the present case, however, the position is further complicated by the fact that all counts prior to Count 7 were committed before Part 2B came into force on 1 July 1998. Thus, although Counts 2, 3, 4 and 5 are 'continuing criminal enterprise offence[s]' as defined, and qualify as 'relevant offence[s]' in accordance with Arundell, the appellant cannot be sentenced as 'continuing enterprise offender in respect of them because of the common law presumption, referred to in Arundell, that a statutory increase in penalty does not operate retrospectively.[32]

38 In the result, in this case, the judge was not in error in sentencing the appellant in respect of Counts 7 and 8 as a continuing enterprise offender.

39 After reciting the appellant's personal history[33] the judge found that there were a number of mitigating factors in favour of the appellant, including that he:

(a) had pleaded guilty at the first available opportunity; [34]

(b) was 'profoundly remorseful for [his] actions in committing these offences';[35]

(d) had 'excellent prospects of rehabilitation';[37]

(e) had been 'a devoted father to [his] children';[38]

(g) had 'an adjustment disorder with depressed mood moderate in severity' following the collapse of his business.[40]

40 Under the heading of manifest excessiveness, counsel for the appellant argues that the total effective sentence of 11 years and two months' imprisonment and non-parole period of eight years fail to reflect the range and significance of those mitigative factors. Alternatively, it is said that, even if the judge did take those factors into account and give them due weight in the sentencing synthesis, there were a number of additional mitigative considerations that were referred to at the plea, but to which the judge did not refer in his sentencing remarks, and thus, it should be concluded, to which the judge failed to have regard. They were:

(a) the fact that the monetary loss to the victims ($3.2 million) was far smaller than the value of the financial advantage or property obtained (more than $15 million);

(b) that the appellant's offending resulted from his attempts to keep his business afloat and that he always intended to repay the funds advanced;

(d) the added burden of imprisonment on the appellant, given that his family live in Queensland; and

(e) what was described as counsel's unchallenged submission that the combination of mitigating factors ought to lead to the fixing of 'a low minimum term'.

41 Putting aside for the moment the question of whether the judge was bound to or failed to take into account the mitigative considerations to which his Honour made no explicit reference, I do not accept that the total effective sentence of 11 years and two months or the non-parole period of eight years were manifestly excessive. In my view, the judge's sentencing remarks reflect a careful consideration of each of the individual sentences and an appropriate degree of cumulation. Bearing in mind that the appellant pleaded guilty to 49 offences of dishonesty involving gross breaches of trust as a financial advisor aggregating more than $15 million and a total loss to the victims of more than $3.2 million, and that, with the exception of only 12 of those counts, each count carried a maximum sentence of 20 years' imprisonment, it appears to me that the result to which his Honour came was well within the range.

42 Counsel for the appellant referred to lesser sentences imposed in R v Fernandez[41] and R v Shannon[42] and argued that, by comparison, the sentences in this case were plainly beyond the range. I do not accept that argument. Each case depends on its own facts and circumstances and on that basis each of those cases was plainly distinguishable. In Fernandez the appellant pleaded guilty to 30 rolled up counts of deception involving the obtaining of over $10 million in stamp duty payable to the State Revenue Office over a period of just under three years. He collected $13 million in stamp duty over that period and failed to account to account to the revenue for approximately $10 million of it, which he then spent on gambling and other personal interests. Admittedly, he had a prior appearance for dishonesty, he did not plead guilty until late and he was not found to be remorseful, and he was sentenced to a total effective sentence of ten years' imprisonment with a non-parole period of seven years. But the individual sentences ranged between two years and six years' imprisonment and the judge cumulated six months' of each of a number of individual sentences of four year's imprisonment. By comparison, the largest individual sentence in this case was only four years' imprisonment, the overwhelming majority of individual sentences were substantially less than two year's imprisonment, and the extent of cumulation was in most cases confined to only a couple of months. It is true that on appeal, the 'sentence as a whole' in Fernandez was described as 'stern', although I am not sure that I would characterise it in that fashion. But be that as it may, I am not persuaded that there is anything about the individual sentences or extent of cumulation adopted in Fernandez which implies that the sentence in this case should be thought of as harsh.

43 In Shannon, the total amount misappropriated was $7 million and it was not clear how much of that sum was recovered. The sentencing judge erred in treating rolled up counts as continuing criminal enterprise offences, and on appeal the sentencing discretion was reopened and the offender was re-sentenced to individual sentences ranging between 18 months' and three years' imprisonment, according the amounts of money involved in each case, and the extent of cumulation ranged between two months and six months per count. On any analysis, however, the range and extent of offending in Shannon was less than in this case.

44 That leaves for consideration the matter of the mitigative factors to which it is said that the judge failed to have regard. Starting with matter of the actual monetary loss to the victims, it appears to me that the point is covered by the detail in which his Honour described each of the defalcations and the fact that it was specifically mentioned in the course of the plea. When that is combined with the sentence imposed, there is no reason to suppose that the judge did not take it into account.

45 The second matter is the suggestion that the offences were committed in order to keep the appellant's enterprise afloat rather than because of greed or to fund a lavish life style. The difficulty with that, however, as appears from what was said by defence counsel on the plea, is that keeping the enterprise afloat and the maintenance of a handsome life style went hand in hand.

46 The third point is the delay between discovery of the offences and the time of sentencing. As the judge noted in his sentencing remarks, the appellant was first interviewed on 7 October 2004. He was, however, not charged until 2005 and was not sentenced until 16 April 2007. But having regard to the complexity of the transactions involved and the extent of investigation which had to be undertaken, I do not regard the delay as inordinate[43] and there was no evidence of any particular hardship the result of the delay. I am not persuaded that the matter was of such importance as to warrant specific mention.

47 The fourth point is the added burden of being imprisoned in Victoria while the appellant's family are in Queensland and as a consequence of what was seen to be a troubled psychological condition. That is a relevant consideration but in my view not a matter of great weight; particularly given that it is possible if not probable that the appellant would succeed in an application to serve his sentence in Queensland.

48 Finally, however, there is the matter of the non-parole period and it appears to me that there is something in that point. Given the appellant's early plea of guilty, undoubted remorse and, as the judge found, excellent prospects of rehabilitation, I accept that there was reason to consider imposing a shorter than usual non-parole period. Yet for all that appears from the length of non-parole period in fact set and the absence from the sentencing remarks of any reference to the matter, it seems that his Honour did not give it much if any attention. The non-parole period of eight years represented approximately two thirds of the head sentence of 11 years and two months, and broadly speaking that was more or less in the middle of the range of the usual non-parole period for a head sentence of 11 years and two months' duration. Absent any explanation as to why his Honour chose the period of eight years, I infer that he did fail to consider the possibility of imposing a lesser period, and to that extent was in error.[44]

49 It follows in my view that the sentencing discretion is re-opened and thus falls to be exercised afresh.

50 For ease of reference and explication I propose to group the counts and sentences to be imposed as far as possible by reference to the victims. I also observe that, because of the large number of counts, it is necessary to moderate some of the individual sentences and to limit the extent of cumulation, in order to comply with the principle of totality and to avoid a crushing sentence.[45] On that basis I would sentence the appellant as follows:

51 I would then treat the sentence of five years' imprisonment imposed on Count 46 as the base sentence, and I would cumulate the following on each other and on the sentence imposed on Count 46:

• 6 months of the sentence imposed on Count 12; and

The total effective sentence, therefore, would be a term of imprisonment of 11 years and one month.

52 Finally, having regard to the appellant's early plea of guilty and co-operation with police, and to the judge's findings as to the appellant's profound remorse, exceptional work ethic, excellent prospects of rehabilitation and lack of prior convictions, as well as the additional hardship which the appellant may suffer in gaol as a result of his psychological condition, I would set a less than usual non-parole period of seven years.

SCHEDULE

As the appellant was sentenced below:

Count 1 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 2 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 3 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 4 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 5 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 6 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 7 - 3 years' imprisonment, 2 years to be served concurrently on count 34
Count 8 - 3 years' imprisonment, 2 years to be served concurrently on count 34
Count 9 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 10 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 11 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 12 - 18 months' imprisonment, 17 months to be served concurrently on count 34
Count 13 - 18 months' imprisonment, 17 months to be served concurrently on count 34
Count 14 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 15 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 16 - 2 years' imprisonment, 21 months to be served concurrently on count 34
Count 17 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 18 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 19 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 20 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 21 - 15 months' imprisonment, 14 months to be served concurrently on count 34
Count 22 - 15 months' imprisonment, 14 months to be served concurrently on count 34
Count 23 - 12 months' imprisonment, to be served concurrently on count 34
Count 24 - 12 months' imprisonment, to be served concurrently on count 34
Count 25 - 12 months' imprisonment, to be served concurrently on count 34
Count 26 - 12 months' imprisonment, to be served concurrently on count 34
Count 27 - 12 months' imprisonment, to be served concurrently on count 34
Count 28 - 12 months' imprisonment, to be served concurrently on count 34
Count 29 - 12 months' imprisonment, 10 months to be served concurrently on count 34
Count 30 - 18 months' imprisonment, 17 months to be served concurrently on count 34
Count 31 - 15 months' imprisonment, 14 months to be served concurrently on count 34
Count 32 - 15 months' imprisonment, 14 months to be served concurrently on count 34
Count 33 - 12 months' imprisonment, to be served concurrently on count 34
Count 34 - 4 years' imprisonment (head sentence)
Count 35 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 36 - 12 months' imprisonment, to be served concurrently on count 34
Count 37 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 38 - 3 years' imprisonment, 2 years to be served concurrently on count 34
Count 39 - 18 months' imprisonment, 17 months to be served concurrently on count 34
Count 40 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 41 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 42 - 2 years' imprisonment, 21 months to be served concurrently on count 34

Count 43 - 12 months' imprisonment, to be served concurrently on count 34
Count 44 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 45 - 18 months' imprisonment, 16 months to be served concurrently on count 34
Count 46 - 12 months' imprisonment, to be served concurrently on count 34
Count 47 - 18 months' imprisonment, 17 months to be served concurrently on count 34
Count 48 - 12 months' imprisonment, 11 months to be served concurrently on count 34
Count 49 - 15 months' imprisonment, 14 months to be served concurrently on count 34

53 I have had the advantage of reading in draft the reasons for judgment of Nettle JA. I agree with his Honour, for the reasons which he gives, that the appeal should be allowed and that the appellant should be re-sentenced as he proposes.

54 I specifically agree with his opinion in respect of this Court's earlier decisions in R v Arundell[47] and R v Grossi.[48]

55 The consequence of Arundell is that the offences committed by the appellant before 1 July 1998 constituted, in the circumstances of this case, qualifying offences for the purposes of Part 2 B of the Sentencing Act 1991 (Vic). The consequence of his Honour's reconsideration of the issue agitated in Grossi is that the increased penalty imposed in respect of continuing criminal enterprise offences by s 6I of the Sentencing Act applies to all qualifying offences for which a person stands to be sentenced in the one trial - not simply the third and any further offences. But in the particular circumstances of this case it does not follow that the applicant fell to be sentenced for all the offences which he committed by application of s 6I. Some of those offences were committed before Part 2B commenced operation, and, as was

said in Arundell 'there would seem to be no room for doubt that a person can only be sentenced as a continuing criminal enterprise offender for an offence committed on or after 1 July 1998.'[49] So, the appellant's sentence in respect of any offence which he committed before 1 July 1998 could not reflect the increase in the maximum penalty for that offence which would have applied had the offence been committed after that date.

57 First, the question of the circumstances in which a court of five might be persuaded to depart from a recent, considered decision of a court of three - a question discussed by Weinberg JA in his draft reasons, which I have also had the advantage of reading - was not the subject of argument. I provisionally consider that there should be a different and lesser level of inhibition against departing from an earlier decision in such circumstances, by comparison with the situation where a court of three considers an earlier decision of a court similarly constituted. Often enough, the very point of constituting a court of five is that a question has arisen whether the Court should follow an earlier decision of a court of three. But I think that it is unnecessary to state precisely the minimum point at which departure by a court of five is authorised. For in my respectful opinion, concerning the Grossi point, the approach of Nettle JA, and of Redlich JA in Grossi itself, is plainly correct; and that should be, consistently with the reasons of Weinberg JA, sufficient reason for departing from the decision of the majority in Grossi.

58 Second, it is true that the approach of Nettle JA yields the result that, in a case falling within s 6H(1)(c) of the Sentencing Act 1991 ('the Act'), the consequences of s 6I attach to the first and every subsequent continuing criminal enterprise offence; consequences which differ from those which flow from the relationship between the definitions of 'serious arson offender', 'serious drug offender', and 'serious sexual offender' in s 6B and the operation of s 6C of the Act. But that, I consider, is not a reason to put to one side the fact that Parts 2A and 2B are very differently expressed, and naturally lead to such different consequences. Whilst it is true that, speaking generally, Parts 2A and 2B address repeat instances of the commission of serious offences, it does not follow that the consequences must be, or would even be likely to be, the same. Parts 2A and 2B were inserted into the Act by different Acts, they address different offences, the criteria for their consequences being triggered are different, and the consequences themselves are very different. The matter last-mentioned highlights, I think, the contrast between the two regimes. Where Part 2A arises in sentencing an offender, the consequences are particularly those specified in ss 6D and 6E. They are dramatically different to the consequence imposed by s 6I where an offender falls for sentence under Part 2B. It is, I think, unsurprising that the draconian consequences which do or may ensue from the operation of ss 6D and 6E should be delayed beyond the point at which the consequence imposed by s 6I will operate.

59 Third, Redlich JA pointed out in Grossi that the triggering of s 6I, in a case failing within s 6H(1)(c) will not inevitably lead to heavier sentences being imposed upon the first and second offences than would be imposed if s 6I had not been triggered. It will depend, as his Honour pointed out, upon the circumstances of the offending. That consideration is relevant to any residual concerns that one might have about the differential operation of Parts 2A and 2B in particular circumstances.

60 Fourth, DPP v Kose,[50] referred to by Neave JA and Redlich JA in Grossi, does not stand for a different conclusion. There, the prosecutor had not drawn the judge's attention to Part 2B, and the judge had not mentioned it when sentencing the respondent. The Director, on the appeal, did not rely upon that Part to support his contention that the sentence had been manifestly inadequate. All he relevantly sought was an entry pursuant to s 6F of the Act. As I noted in my reasons,[51] counsel for the Director argued that it should have been recorded that the respondent had

been sentenced on count 3 on the three count presentment for a continuing criminal enterprise offence. Responding to the submission, I said shortly that it seemed clear that he should have been so sentenced. The learned Chief Justice, with whom Buchanan JA agreed, concluded that a 'slip' should be corrected, and that it should be recorded that in respect of all three offences the respondent had been sentenced for a continuing criminal enterprise offence.[52] Her Honour did not say why that was so. Certainly, it was not based upon the submissions of counsel for the Director. In all, it is plain that the issue now before this Court was not ventilated.

61 For the reasons given by Nettle JA I agree with the disposition of the appeal in the manner he proposes.

62 I adhere to the view I expressed in Grossi for the reasons I there gave, that the unmistakeable effect of ss 6H, 6I and 6J is to treat those qualifying offences upon which the offender has been found guilty and which lead to the offender becoming a CCE offender, as CCE offences to which the increased maximum sentence applies.[53] The language of s 6H is, in my respectful opinion, incompatible with the view adopted by the majority, that the increased maximum penalty only applies to a third and subsequent CCE offence. The construction preferred by the majority would, as I said in Grossi, render otiose, the relevant sub paragraph of s 6H(1) that was applicable to the circumstances of the case.[54] Such an interpretation offends the primary canon of construction, that provisions should not be construed so as render them ineffectual or meaningless.[55] I am fortified in my view by the additional observations made by Nettle JA concerning the reasoning of the majority.

63 Weinberg JA has raised the question of the extent to which a full bench of

five judges is free to depart from an earlier decision of a court of three. He has pointed out that it has generally been assumed that a court of five has greater freedom to depart from an earlier appellate decision than a court of three. No party advanced argument on the appeal that this was not an appropriate case in which a court comprising five judges could reconsider its earlier decision by a court of three concerning a question of statutory construction. As the matter has not been the subject of argument, this case is not the appropriate vehicle for consideration of when a court of five may depart from an earlier majority decision of a court of three.

64 Weinberg JA has also referred to potential anomalies and unfairness whatever construction is preferred. Arguments founded on such an approach or the application of the canon of construction that a penal provision should be construed strictly depend upon there being a fairly clear alternative interpretation. The chief rule of construction forbids departure from the ordinary grammatical sense of the words except in well recognised circumstances which are not here present.[56] The court is not at liberty to place an artificial construction upon the words merely to avoid a result which it regards as inconvenient or undesirable. That said, no anomaly has been identified which by its nature would justify a construction contrary to the plain and ordinary meaning of the language employed and which I have concluded unmistakeably conveys Parliament's intention.

65 Vincent JA has suggested a potential unfairness in the sentencing process if the provisions are construed as Nettle JA and I suggest. But in a part of my reasons in Grossi with which Neave JA agreed,[57] I said that the sentencing judge retains a discretion as to whether to impose a greater sentence with respect to a qualifying CCE offence. Whether some of the qualifying CCE offences are 'relevant offences'[58] or are all before the court,[59] if the sentencing judge is not satisfied that the qualifying offences were committed in furtherance of a particular criminal scheme so that it can

be said from the outset that the offender intended to commit all those qualifying offences to achieve their objective, or if those offences do not demonstrate a continuing propensity to engage in that type of behaviour, the judge may refrain from imposing any greater penalty on the qualifying CCE offences. As it could not be said in Grossi that the qualifying offences were an interlinked part of a criminal scheme or that the appellant, at the time of committing the qualifying offences intended to commit further offences, it would not have been an appropriate exercise of the discretion to impose a greater sentence on the qualifying offences.[60]

66 I have had the advantage of reading in draft the reasons for judgment prepared by Nettle JA. I agree with much of his Honour's reasoning. In particular, I agree that the decision of this Court in R v Arundell[61] was correct and should not be disturbed. I agree with his Honour that the appeal should be allowed and the appellant re-sentenced. In that regard, I agree with the orders proposed.

67 With respect, I find myself unable to agree that the decision of the majority in R v Grossi[62] should be overturned. As I am in a minority on this point, it will be sufficient if I state my reasons briefly.

68 Grossi is a recent, and carefully considered, decision of this Court. In Nguyen v Nguyen,[63] the High Court considered whether an intermediate appellate court, such

as the Full Court of a Supreme Court, should regard itself as bound by its own previous decisions. In a joint judgment, Dawson, Toohey and McHugh JJ said:

The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. An example of such a determination is the Practice Statement of the House of Lords in 1966: Practice Statement (Judicial Precedent). The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here ... It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions ... In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, 'Stare Decisis in Intermediate Appellate Courts' Australian Law Journal, vol 52 (1978) 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong ...[64]

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: ...[65]

70 In Victoria, the practice of convening a Full Bench of five (or more) judges if a decision of a court of three is to be reviewed extends back to the latter part of the 19th century.[66] The use at that time of that number of judges to constitute the Full Court was explicable because that was the entire complement of judges of the Supreme Court. In effect, the Court was sitting en banc, much as the Court of Crown Cases Reserved had sat in England before the enactment in 1907, in that country, of a statutory regime for the conduct of criminal appeals.[67]

71 In recent years, the Court of Appeal in Victoria seems to have been

71 constituted as a bench of five more frequently than had hitherto been the case.[68] The practice of convening such a bench had been followed on occasion before the creation of this Court in 1995. [69] It must be said, however, that this was a rarity.

72 In R v Tait,[70] Callaway JA had this to say about the approach to be taken by this Court to earlier decisions of the Full Court:

The Court of Appeal would usually follow a decision of the Full Court and convene a Full Bench of five of more judges if the decision were to be reconsidered ... There were, nevertheless, exceptional circumstances in which the Full Court constituted by three judges was at liberty not to follow a prior decision.[71]

73 Callaway JA proffered the opinion that, in future, the Court of Appeal would extend those exceptional circumstances to enable a greater number of Full Court, and, in due course, Court of Appeal, decisions to be reviewed by a court of three. His Honour noted that there were some old precedents, and some ex tempore judgments, which should no longer be followed. In that regard, the adoption of a more flexible approach to precedent might be more efficient than having to convene a Full Bench.

74 Shortly thereafter, in R v Ali,[72] the Court of Appeal intimated that when an important point of principle was concerned, even though a bench of three might be able to overturn a previous decision of the Full Court, or the Court of Appeal itself, a bench of five ought nevertheless to be convened.[73]

75 Despite these helpful observations, the approach to stare decisis to be taken by this Court when constituted by five judges has not, so far as I am aware, been finally determined. It has generally been assumed that a court of five has greater freedom to depart from earlier appellate decisions than a court of three. There are a number of examples of this approach having been taken.

76 In Re Shaw,[74] a court of five was convened to hear an application to summon a grand jury, a course that had been allowed to lapse in other States, and only rarely adopted in Victoria in recent years. The specially constituted court heard the application because it was considered desirable to consider the correctness of the decision of a Full Bench in Byrne v Armstrong,[75] where the Court had divided four to two on the requirements of the section permitting a grand jury to be summoned.[76] Byrne v Armstrong was overruled.

77 The position in England is always instructive in relation to matters of stare decisis. There the Court of Appeal regards itself, for practical purposes, as strictly bound by its own previous decisions.[77] There are some recognised exceptions, but they are extremely narrow and of no present relevance. It makes no difference, so far as that Court is concerned, whether it is constituted by three, five or any greater number of judges.[78]

78 The position in Victoria is that, as a matter of law, there is but one Court of Appeal. The Court is a Division of the Supreme Court.[79] It is constituted by the Chief Justice, the President of the Court of Appeal, the other Judges of Appeal, and any additional Judges of Appeal appointed or acting under s 80B of the Constitution Act 1975.

Subject to this Act and the Rules, any 3 or more Judges of Appeal constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.

80 Under both the Constitution Act, and the Supreme Court Act, it matters not in the least whether the Court of Appeal is comprised of three, five, or any greater number of judges. It is still the Court of Appeal. I can understand the value of having novel and difficult questions considered, on occasion, by more than three judges. More minds may contribute to better reasoning.[80] However, it does not follow from the fact that five judges sit on a particular case that the ordinary rules of precedent cease to operate. The assumption that this is so remains untested, and unproven.

81 In my opinion, the fact that the Court of Appeal happens to be constituted by five judges, rather than three, in no way diminishes the binding force of the High Court's statement as to precedent in Nguyen. I remain of the view that this Court, though free to depart from its own earlier decisions, should do so only cautiously, and when compelled to the conclusion that the earlier decision is wrong. Moreover, it should depart from its earlier decisions only infrequently, and exceptionally.

82 Approaching the present matter in that light, the question seems to me to be whether this Court is compelled to the conclusion that the majority decision in Grossi was wrong.

83 Another way of asking that question may be to consider whether the majority decision should be regarded as clearly, or plainly, wrong. The Full Court of the Federal Court will depart from its own earlier decisions only when that substantial threshold has been met.[81] Intermediate appellate courts, both Federal and State, have been told by the High Court to adopt a similar approach when considering whether to follow decisions of other intermediate appellate courts regarding uniform national legislation.[82] Indeed, the High Court has recently directed intermediate appellate courts to follow decisions of other such courts when applying the common law, unless convinced that those decisions are plainly wrong.[83]

84 If that approach is appropriate in such circumstances, a similar approach seems to me to be mandated when this Court considers whether to depart from one of its own earlier decisions. Indeed, the argument is even stronger when that earlier decision is one that can fairly be described as both recent, and carefully considered.

85 It goes without saying that Part 2B of the Sentencing Act 1991 could have been expressed more clearly. In my opinion, reasonable minds may differ as to whether the majority view in Grossi was correct, or whether the equally tenable view expressed by Redlich JA, in dissent, and now adopted by the majority in the present case, should be preferred.

86 In a strict sense, that debate is not the true issue in this appeal. The question is rather whether this Court should now positively reject the majority's interpretation of s 6I(1) in favour of Redlich JA's conclusion that the section applies to all qualifying offences for which a prisoner stands to be sentenced at the one trial. That question is not to be resolved by a simple finding that one view may be preferable to another. If both interpretations are reasonably open, and I think they are, I cannot see how this Court can be 'compelled to the conclusion that the earlier decision is wrong'.[84]

87 Nettle JA has pointed out the importance of the different structures adopted in Parts 2A and 2B of the Act. Plainly, the use of the expression 'is found guilty' in s 6H of Part 2B differentiates that section, and indeed Part 2B as a whole, from s 6B of Part 2A. There, the language used is 'has been convicted of 2 or more sexual offences' for each of which he or she has been 'sentenced' to a term of imprisonment. As Nettle JA notes, despite that difference, the majority in Grossi held that a 'continuing criminal enterprise offender' is liable to be sentenced as such only in respect of the third and any subsequent relevant offences of which he or she is convicted.

88 I respectfully agree with Nettle JA that some aspects of the reasoning of the majority in Grossi are not free from criticism. Nonetheless, having given this matter careful consideration, I am not persuaded that Grossi was wrongly decided. I certainly do not regard myself as being compelled to that conclusion.

89 There are two additional factors, apart from those discussed by the majority in that case, which lead me to consider that Grossi should stand.

90 In the first place, I do not accept that the ordinary and natural meaning of the term '3 or more continuing criminal enterprise offences' in s 6H(1)(c) leads inexorably to the conclusion that all qualifying offences within the one presentment are 'continuing criminal enterprise offences' to which the increased maximum in s 6I applies.

91 As a matter of ordinary language, s 6H can be read, legitimately in my view, as creating a status of 'continuing criminal enterprise offender', that being a person who is found guilty of three or more continuing criminal enterprise offences. However, that point is not reached until that person has been found guilty of the third of those continuing criminal enterprise offences. Prior to that point, the offender cannot be a 'continuing criminal enterprise offender'. As a matter of basic principle, he should not therefore be amenable to the heavier penalties that apply pursuant to s 6I.

92 If the section can be construed in that way, as I think it can, it follows that the first two counts in relation to which the offender has been found guilty cannot themselves be subject to the heavier penalties available under s 6I. To repeat what I have earlier said, that is because the relevant status has not, to that point, been attained. In other words, a condition precedent to a heavier sentencing regime has not been met.

93 I would not myself have placed anything like the weight that the majority in Grossi did upon the policies supposedly underlying both s 6C in Part 2A and s 6H in Part 2B. The provisions under these parts were introduced into the Sentencing Act by different Acts, and at different times. Part 2A was inserted by Act No 48 of 1997 while Part 2B was introduced by Act No 108 of 1997. They deal with different subject matter and the policy underlying each part cannot be said to be the same.

94 At the same time, I would not put anything like the emphasis that Nettle JA does upon the differences in wording between s 6C and s 6H. Different drafters draft in different ways. It would be wrong, in my view, to construe s 6H upon the assumption that the language chosen was intended by the drafter to differentiate the conditions under which Part 2B might operate from those under which Part 2A, dealing with serious offenders, come into play.

95 Whatever view one takes of the correct construction of s 6H, it is clear that the section as drafted has the potential to lead to anomaly and unfairness. As the majority in Grossi correctly notes, it makes little sense to distinguish between a person who is dealt with over two days on separate presentments and a person who is dealt with on the same day in relation to the same presentment. Unfortunately, the majority view in Grossi can lead to equally anomalous results.

96 This brings me to the second reason why I would not overturn Grossi. If the legislature is of the opinion that the majority view in that case was wrong, it would be a relatively simple task to amend s 6H. It is not as though the Sentencing Act is rarely the subject of amendment. No great harm will be done by allowing the majority view to stand.

97 Indeed, I would venture the opinion that the policy that underlies Part 2B reflects a misconceived notion of the basis upon which sentences for multiple offences are constructed. In that sense, the interpretation to be accorded to the provision under scrutiny is likely to be of theoretical, rather than practical, importance. I frankly doubt that, as a matter of reality, anyone sentenced under s 6I will end up receiving a total effective sentence longer than someone sentenced for individual counts of fraud. Provisions such as those contained within Part 2B are becoming altogether too common. They seem to me to serve little purpose. They only complicate, quite unnecessarily, what is becoming an increasingly difficult task for sentencing judges.

98 In deciding this appeal, the legislative intent, as expressed in Part 2B, must of course be ascertained and implemented. However, in interpreting s 6H, it is of vital importance that this Court not depart from ordinary canons of construction.

99 At one time, it was a fundamental rule of statutory interpretation that penal provisions were to be construed strictly. That canon of construction seems no longer to have quite the force that it once did. Nonetheless, this seems to me to be an entirely appropriate case for it to be invoked. Section 6H is nothing, if not penal. Certainly, it represents a radical departure from established sentencing practice. To the extent that it can, the section should be 'read down' rather than 'read up'. It should be construed strictly because it has the potential, at least in theory, to affect freedom and liberty, and to do so drastically.

100 If the legislature wishes to pass a law that exposes an offender to twice the maximum penalty stipulated for an individual offence by reason of that person's repeated offending, it can, of course, do so. However, it should be expected to make clear, either expressly or by necessary implication, the circumstances under which that may occur. The High Court has said that in cases involving significant interference with fundamental rights, it should do so unmistakably and unambiguously.[85] In my opinion, the construction for which the Crown contends falls well short of that standard. It should therefore be rejected.

[1] R v Arundell [2003] VSCA 69.

[2] R v Grossi [2008] VSCA 51.

[3] R v Arundell [2003] VSCA 69 [19].

[4] [2003] VSCA 69, [17]-[22].

[5] [2008] VSCA 51, [3]-[27].