R v Seyfarth [1998] VSCA 27

Court of Appeal (Vic)|1998-08-31|Before: BROOKING, TADGELL and BUCHANAN, JJ.A.

CRIMINAL LAW - Conviction - Conspiracy - Counterfeiting - Application to change plea made after conviction recorded - Application refused - No miscarriage of justice. R. v. Parsons, unreported, Court of Appeal, 24 October 1997, applied. CRIMINAL LAW - Sentence - Delay between arrest and conviction - Sentence within range available - Applicant not punished for another offence - No bias.

The applicant and two other accused were presented in the County Court on two counts of conspiracy. One count alleged an agreement to make false American Express travellers cheques with the intention that they should be used to induce another to accept them as genuine. The other count alleged an agreement to use the counterfeit American Express travellers cheques with the same intention.

On 17 November 1997 the applicant and his co-accused were arraigned and pleaded not guilty. The case that was opened to the jury was that Brian Frugtniet, a younger brother of the applicant, ran a travel agency business in Sydney. In October 1991 Frugtniet enlisted a graphic artist and a printer to make plates to enable American Express travellers cheques to be printed. Frugtniet also obtained the services of a computer consultant and a computer programmer to develop a computer program to run the printer and sequentially number the cheques. The computer program was completed and printing plates were made. The plant, consisting of a printer, a computer and an encoder and the raw material, the paper, were assembled in Melbourne. Cheques were printed over the period from 30 November 1991 to 3 December 1991. The total face value of counterfeit cheques eventually recovered by the police was in excess of $US2,800,000. The applicant did not participate in the printing of the travellers cheques: his responsibility was to establish a system for converting the cheques into cash. While the cheques were being printed, the applicant recruited persons to pass the cheques. The plan was to cash the cheques overseas. For that purpose passports in false names were acquired by the applicant. Shortly prior to his arrest an associate of the applicant cashed or attempted to cash some of the counterfeit travellers cheques at two banks in Melbourne while the applicant waited outside.

On 5 December 1991 the applicant and another man were arrested in Sydney. They had in their possession counterfeit American Express travellers cheques to the face value of $US15,000 and passports in false names.

The trial proceeded until 24 November 1997 when at the request of his counsel the applicant was re-arraigned and pleaded not guilty to the count of conspiracy to make false documents and guilty to the count of conspiracy to use false documents. The Crown announced that it would lead no evidence against the applicant on the first count. The learned judge directed and invited the jury to return verdicts of not guilty and guilty respectively to match the pleas. The jury returned verdicts accordingly.

Two days later the applicant applied to the learned judge to change his plea of guilty to one of not guilty. The applicant made the application in person. There was a preliminary question as to whether the learned judge had the power to determine the application after the return of a verdict of guilty. His Honour held that he did have jurisdiction, applying the decision of Debelle, J. in R. v. Webb and Hay (1992) 64 A.Crim.R. 38, which in turn applied English authorities, the most notable being S (an Infant) v. Recorder of Manchester [1971] A.C. 481. See also De Kruiff v. Smith [1971] VicRp 94; [1971] V.R. 761, at pp.765-6.

The basis of the application was that the only counterfeit travellers cheques with which the applicant was involved were Thomas Cook travellers cheques, not American Express travellers cheques. In the course of his evidence given in support of his application, the applicant said, at p.33 of the transcript:

"I have given firm instructions to both my solicitor ... and my counsel that whilst I may have been guilty of another crime, I was not guilty of the charge relating to American Express travellers cheques."

He said that he decided to plead guilty after receiving advice from his counsel and his solicitor. He said, at p.34:

"I decided to plead guilty because I was told that it mattered not whether it was American Express or whatever it was, the fact it was travellers cheques meant I would be found guilty."

The prosecutor called the applicant's counsel as a witness. His evidence was that he advised the applicant that the case against him was very strong and there "... were significant features of his connection with American Express ..." (p.58). Further, counsel said, at p.59:

"He was given the clearest advice that a plea of guilty would be almost impossible to overturn in circumstances where he had obtained the benefit of a plea of not guilty and the Crown leading no evidence against him."

At p.61 he said, in answer to a question by the applicant:

"It was never put to you that it doesn't matter, it was put on the basis that the evidence was overwhelming that it would be American Express travellers cheques that the jury would be interested in and find you guilty of."

The learned judge refused the application. He said that he was "entirely unable" to accept the evidence of the applicant that he had been wrongly advised, and found that the advice given by counsel was that the evidence that the cheques were American Express cheques was overwhelming and the applicant understood that. Those findings were clearly open to the learned judge and in my view they led inexorably to the refusal of the application.

After hearing a plea the learned judge on 4 March 1998 sentenced the applicant to a term of four years' and six months' imprisonment and fixed a non-parole period of three years.

The applicant now seeks leave to appeal against both conviction and sentence.

It is only in exceptional circumstances that this Court can set aside a conviction following a plea of guilty. In _R. v. Parsons (_unreported, Court of Appeal, 24 October 1997) Winneke, A.C.J., with whose judgment the other members of the Court agreed, said that the views expressed by Sholl, J. in R. v. Murphy [1965] VicRp 26; [1965] V.R. 187, have generally been accepted in Victoria as expressing the circumstances in which a Court of Criminal Appeal will set aside a conviction recorded after a plea of guilty. Sholl, J. said:

"Most of the reported cases can, it is true, be fitted into the principles formulated in R. v. Forde [1923] 2 K.B. 400 ... But they should not be regarded as exhaustive of all possible cases of a miscarriage of justice. They do not cover, for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats, e.g. of a fellow accused or of a police officer to plead guilty where otherwise he would have pleaded not guilty. In such a case there would, in my opinion, be a miscarriage of justice."

The cases of miscarriage of justice referred to in R. v. Forde were that the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, and that upon the admitted facts he could not in law have been convicted of the offence charged.

There was no miscarriage of justice involved in the applicant's conviction. The applicant did appreciate the nature of the charge and from the terms of the presentment and the plethora of references in the Crown's opening address to American Express travellers cheques must have known that the case to be proved involved those cheques and no other. His plea was not induced by mistaken advice. He did intend to admit that he was guilty of the charge knowing that it was based upon an agreement to use American Express travellers cheques acting on advice that that case was overwhelming.

At the hearing of the appeal counsel for the applicant sought to rely upon documents relating to negotiations as to a possible plea of guilty between the applicant's advisers and the prosecution which took place before the applicant was sentenced. None of the documents was in evidence below. The question whether leave would be granted to use the documents was reserved. I would not grant the leave sought. The application to withdraw the plea of guilty was conducted on the basis that advice given to the applicant by his counsel was wrong. The application was determined on the basis of the advice found by the learned judge, and which he found the applicant understood. In my view it is now too late to seek to negate the plea of guilty by resort to earlier attempts to reach agreement on the facts to be put before the Court in the context of a plea of guilty.

That disposes of the application for leave to appeal against conviction, for the remaining grounds cannot succeed if the plea of guilty stands. In particular the plea met the contention advanced by the applicant that a Victorian court lacked jurisdiction to hear the charge. The presentment alleged an agreement made in New South Wales and Victoria to pursue a course of conduct which would constitute an offence against Victorian law. See Re Hamilton-Byrne [1995] VicRp 8; [1995] 1 V.R. 129. By his plea the applicant admitted the facts founding the Court's jurisdiction. .

I turn to the application for leave to appeal against sentence.

The applicant is aged 47 years. He was born in Sri Lanka. He has led a peripatetic, varied life. When he was seven years old his parents were separated and he was sent to a boarding school until the age of 14 years when he re-joined his mother and went to live in Switzerland. After staying in Switzerland for 15 months, the applicant and his mother migrated to England. The applicant was placed in a foster home and later a hostel. The applicant worked with an engineering company, as a bus conductor, a train guard, a chef and then started his own business as an insurance broker.

The applicant was married in 1971, and divorced in 1976. There are two children of that marriage. The applicant re-married in 1984 and in the same year migrated to Australia with his wife. There are three children of his second marriage, who live with their mother in Sydney. In Australia the applicant worked in the travel industry and operated a restaurant in Sydney. Prior to his arrest in 1991 he was injured in a motor vehicle accident, and since 1991 he has not been employed, but has lived on social security benefits.

The applicant has a number of prior convictions, which he incurred when he lived in England. In 1972 he was convicted of charges of burglary, forgery, and obtaining property by deception and sentenced to be imprisoned to a total term of nine months. In 1982 he was convicted of a charge of assault occasioning actual bodily harm and conditionally discharged. In 1984 he was convicted of two charges of theft and was sentenced to be imprisoned for four months.

The maximum penalty for the offence of conspiring to commit an offence against s.83A(2) of the Crimes Act 1958 was a term of 7.5 years' imprisonment. The maximum penalty was a term of 10 years' imprisonment at the time of the commission of the offence. However, by s.119 of the Sentencing Act 1991 , which came into operation on 22 April 1992, the penalty was reduced to 7.5 years' imprisonment, and s.114 of the same Act provides that if an Act reduces the maximum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement. The prosecutor mistakenly informed the learned judge that the maximum penalty was 10 years' imprisonment. The error had no effect, for in sentencing the applicant, the learned judge said:

"... (F)or most of the time when these proceedings against you have been on foot the maximum available penalty was seven-and-a-half years' imprisonment, and as you cannot be held responsible for most of the delay which has occurred, I will take into account in sentencing you the fact that seven-and-a-half years' imprisonment was the maximum penalty available during the time when, had the proceedings taken a normal course, you would have been sentenced."

The first ground of appeal is that the sentence is manifestly excessive.

The conspiracy involved a significant attack upon one of the media of exchange on which the commerce of this and other countries is based. The sum involved was at least $US2,800,000. Further, the successful uttering of the counterfeit cheques would have led to loss to American Express and possibly to persons who supplied goods or services to the amount of the cheques. The overall scheme was one of considerable dimensions and was one in which the applicant played a significant role. He was a principal, and was the person who was in charge of the critical element of realizing the face value of the cheques by means of an international operation. The applicant was to establish and maintain that operation and went some distance towards doing so.

The applicant did plead guilty, albeit only during the course of his trial. His prior convictions must be viewed as of some antiquity, and as a product of an earlier part of the applicant's life in another country. To that extent they are of limited relevance.

The applicant's personal circumstances, which I have described, hold out some prospects of the rehabilitation of the applicant. According to the report of a criminologist, which was before the learned sentencing judge, the applicant is an intelligent man with a supportive wife. The applicant has the ability to make something of his life.

The applicant was arrested in December 1991, and was committed for trial on 11 December 1992. A presentment was filed in September 1993 and in 1994 the trial was set down for 30 January 1995. The trial did not proceed on that date because Brian Frugtniet was engaged in an appeal from his conviction in New South Wales. It was not until 17 November 1997 that the trial at which the applicant was convicted commenced. The delay in commencing the trial was in no small measure due to applications by the applicant and his co-accused, mainly due to changes in their representation and skirmishing with Legal Aid, and to the continuing complication of the New South Wales proceedings against the co-accused. Other delays arose from subpoenas issued by the accused, an application to disqualify the judge on the ground of bias, and voir dire proceedings dealing with the admissibility of various pieces of evidence. The result of the delay was that the applicant was left in a state of anxiety and uncertainty for years. However, I do not consider the delay in mounting a complicated conspiracy case was unjustified. After the beginning of 1995 the delay was largely due to the complications caused by the New South Wales proceedings and the manoeuvring of the applicant and his co-accused.

After taking into account the mitigating factors I have referred to, I do not consider that the sentence imposed upon the applicant was outside the range of the sentences available to the learned judge. Whilst travellers cheques might not rank in importance with a country's currency, they do form an essential component of a great deal of commercial activity, and the integrity of that activity, on which the livelihoods of many people depend, should be protected. Counterfeiting travellers cheques requires severe punishment to deter others and to retain public confidence in an important medium of exchange. The applicant set out to utter cheques amounting to a very large sum, and in my view the crime warranted a substantial custodial sentence.

The amended Notice of Appeal contained some 19 grounds said to be specific errors in the sentencing process. However, most of the grounds were not pressed at the hearing of the appeal.

It was submitted that in sentencing the applicant the learned judge took into account circumstances of aggravation which would have warranted conviction for another offence, namely, the conspiracy the subject matter the first count on the presentment.

The learned judge described the steps taken to make the false travellers cheques, but there is no reason to suppose that the sentence imposed on the applicant reflected the applicant being a party to an agreement to make the false documents. The learned judge did take into account the applicant's knowledge of the manufacture of the travellers cheques. He said:

"You were well aware of the printing process which was being carried out in Melbourne and of the fact that very substantial sums of money would be involved."

In my view those matters were relevant and properly to be taken into account in sentencing the applicant for the count to which he pleaded guilty. It was an ingredient of the conspiracy to which the applicant pleaded guilty that he knew that the travellers cheques to be used were counterfeit, and the quantity of cheques to be manufactured was relevant to the scale of the conspiracy to use the cheques.

The applicant complained that the learned judge proceeded in sentencing him upon the basis that the circumstances in which the offences were committed were to be found in the depositions of the committal proceedings. In my view the learned judge was entitled to rely upon the depositions (R. v. King [1979] VicRp 43; [1979] V.R. 399, at p.406) at least in the absence of any objection on the part of the applicant. No objection was made to any of the material during the course of the plea. Counsel for the applicant cited a number of cases concerning the proper means of resolving disputed questions of fact upon a plea. However, there must first be a dispute, and in the present case there was none. Counsel said that the only dispute emerged, not on the plea, but in the course of the application by the applicant to change his plea, and there the dispute was limited to whether the cheques were issued by American Express, a question which was resolved by the terms of the presentment to which the applicant pleaded guilty.

Finally, it was submitted that the learned judge was biased. The bias was said to be apprehended, not actual bias in that the learned judge had been a member of the firm of solicitors which acted for parties opposed to the applicant in civil litigation, and had received a synopsis of the Crown case said by the applicant to contain inaccuracies some days before the synopsis was given to the applicant.

An application was made to disqualify the learned judge from conducting the trial on those grounds. His Honour ruled against the application on 20 October 1997 and no error has been demonstrated in his disposition of the application. No application was made to disqualify the judge from sentencing the applicant. In my opinion the point cannot invalidate the sentence imposed upon the applicant.

For the foregoing reasons I would reject all the grounds advanced on behalf of the applicant, and dismiss the applications.

At a glance

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Judgment (45 paragraphs)

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