R v Shannon [2005] VSCA 143

2 On 31 March 2004 the appellant was arraigned before the County Court at Melbourne on 28 counts of obtaining property by deception in the period between 10 October 1995 and 18 October 2001, to all of which he pleaded guilty. The offences were committed as part of an elaborate fraudulent scheme to obtain large amounts of money through the conduct of bogus raffles. Each raffle was rigged to ensure that no one won the major prize. The raffles purported to be for the purposes of raising funds for a charity called "Kids at Sea" to teach children to sail and provide them with sailing experience, but in truth a substantial part of the money went to maintain the appellant and his family in grand style with expensive cars, a FARR 40 yacht in which to sail to and from Sydney and the Whitsundays, school fees for the appellant's children, luxury accommodation at tourist resorts and general spending money. Over the period in question, honest members of the public were induced to purchase raffle tickets to the value of more than $7 million. As the judge below put it, the scheme gave the appellant an excuse to live like a millionaire at the expense of his victims.

3 After hearing a plea in mitigation, on 7 October 2004 the judge sentenced the appellant on count 1 to a term of imprisonment of 12 months, on each of counts 2 to 13 to imprisonment for a term of 18 months, and on each of counts 14 to 28, as a continuing criminal enterprise offender, to a term of imprisonment of 24 months. In his sentencing remarks the judge observed that he had concluded that there should be a total effective head sentence of seven-and-a-half years, but that, rather than embark upon what his Honour described as a rather artificial exercise in accumulation count by count, he would simply direct that the whole of the sentences on counts 2, 3, 4 and 5, together with six months of the sentence on count 6, be served cumulatively on the sentence on count 1 and on each other, making for a total effective sentence of seven years and six months, of which it was ordered that the appellant serve not less than five years before being eligible for parole.

4 The appellant now appeals against the sentence pursuant to leave granted by Callaway, J.A. on 15 April 2005. The principal ground of appeal is that the judge erred in treating counts 14 to 28 as continuing criminal enterprise offences within the meaning of Part 2B of the Sentencing Act 1991. The point is that although each of those counts involved a financial advantage amounting to more than $50,000 and in terms that would appear to satisfy the definition of a continuing criminal enterprise offence in s.6H of the Act, each of the counts was a "rolled up" count in effect aggregating each of the hundreds of individual offences of obtaining financial advantage by deception, or at least obtaining property by deception, that was committed upon the sale of an individual raffle ticket or the sale of raffle tickets to an individual purchaser.

5 It was held by this court in R. v. Ralphs[1] that, in circumstances where offences are charged as a "rolled up" count, the count does not qualify as a continuing criminal enterprise offence by virtue only of the rolled up value. Counsel for the Crown submitted that the counts in this case were not "rolled up" inasmuch as, although they comprised a large number of individual sales of raffle tickets and in that sense a large number of what arguably would constitute individual offences, the individual criminal acts were so closely connected in terms of purpose, modus operandi, physical and temporal proximity and scheme as to be properly regarded as one single offence. Counsel referred in support of her submission to observations of Kirby, J. in Walsh v. Tattersall[2].

6 Plainly, there are offences of a continuing nature constituted of a multiplicity of acts, each of which, or at least some of which, may by themselves constitute individual offences.[3] But I do not accept the Crown's submission. In my opinion the offences of obtaining property by deception that were charged in this case were not continuing offences of which it could be said that each individual sale of raffle tickets constituted but part. The correct analysis, I consider, is that each sale constituted an individual offence of obtaining property by deception and could be charged accordingly. The mechanism of "rolling up" a number of charges into one count was doubtless adopted for the very good reasons of a just and efficient disposition, but in my opinion it could not and did not change the essential nature of each of the offences. It follows, in my opinion, that each of the counts in this case was properly described as a "rolled up" count in the sense in which that conception was used in R. v. Ralphs and, therefore, that counts 14 to 28 cannot properly be regarded as continuing criminal enterprise offences.

7 That being so, I consider, that the appeal must be allowed and that the appellant should be re-sentenced.

8 The circumstances of the offences were described in considerable detail in the judge's sentencing remarks and it is unnecessary to repeat them. It suffices to say that the judge considered that the offences represented a massive fraud and an abuse of public trust and confidence and were likely to cause considerable damage to charitable fundraising activities. But the judge accepted as mitigatory considerations the fact that the appellant pleaded guilty and thereby saved the community the considerable expense and resources which a trial would have entailed, the appellant's lack of prior convictions up to the time of the first raffle, the degree of remorse said to be demonstrated by the fact that the appellant gave evidence on the plea and accepted in the course of that exercise the nature and gravity of his offending, and the hardship which the appellant will suffer in gaol by reason of the return of his wife and children to live in Queensland, whence they came.

9 I approach the matter on the same basis. The offences to which the appellant has pleaded guilty represent fraudulent conduct on a very large scale. They warrant condign punishment in order to express the Court's denunciation and the community's intolerance of offending of that kind and to provide general deterrence against the possibility of others being tempted to offend in similar fashion. Given the duration of the offending and its brazen quality, I think that there is also a need for a measure of specific deterrence and, inasmuch as the majority of the offences were found by the judge to have been committed for no better reason than greed, there is, I think, also a need for substantial punishment. The penalties to be imposed, however, must be mitigated substantially to take account of the appellant's plea of guilty and absence of prior convictions and in order to make due allowance for his remorse, prospects of rehabilitation and the hardship to which I have referred.

10 As a first step I have grouped the offences into categories according to the size of the financial advantage or financial worth of the property obtained in each case. Needless to say, the amount of financial advantage or worth of property obtained is certainly not the sole consideration and often it may not prove to be an especially important consideration, but in the particular circumstances of this case I regard it as being a convenient starting point. The categories are as follows:

1 Category 1, which comprises count 3, for which the financial advantage obtained was $760,376.

Category 2, which comprises count 6, for which the financial advantage obtained was $521,909.65.

Category 3, which comprises counts 2, 5, 7, 23 and 26, for which the financial advantage obtained ranged from $404,546.58 to $489,310.10.

Category 4, which comprises counts 9, 13, 14, 25 and 27, for which the financial advantage obtained ranged from $310,016.57 to $349,960.32.

Category 5, which comprises counts 11, 15, 17, 19, 21 and 24, for which the financial advantage obtained ranges from $214,560.36 to $290,300.62.

Category 6, which comprises counts 4, 8, 10, 12, 18, 20, 22 and 28, for which the financial advantage obtained ranges from $104,990.17 to $180,562.66.

Category 7, which comprises counts 1 and 16, for which the financial advantage ranges from $82,222 to $85,778.11.

As a next step I take into account what might be regarded as a measure of increasing

criminality the longer time went on and for a time the greater the amounts involved became. Finally, I bear in mind the mitigatory factors previously mentioned.

11 Balancing as best I am able the sentencing considerations to which I have referred, I would re-sentence the appellant as follows:

On count 3, to a term of imprisonment of three years;

On count 6, to a term of imprisonment of 30 months;

On each of counts 2, 5, 7, 23 and 26, to a term of imprisonment of 27 months;

On each of counts 9, 13, 14, 25 and 27, to a term of imprisonment of 24 months;

On each of counts 11, 15, 17, 21 and 24, to a term of imprisonment of 21 months.

On each of counts 1, 4, 8, 10, 12, 16, 18, 20, 22 and 28, to a term of imprisonment of 18 months.

Treating the sentence imposed on count 3 as the base sentence, I would order that six months of the sentence imposed on count 6, four months of the sentences imposed on each of counts 2, 5, 7, 23 and 26, two months of the sentences imposed on each of counts 9, 13, 14, 25 and 27 and one month of the sentence imposed on each of the other counts be served cumulatively on the sentence imposed on count 3 and on each other. In the result, I would impose a total effective sentence of seven years and four months. I would further order that the appellant serve not less than five years of that sentence before being eligible for parole.

12 I agree and I do so for the reasons advanced by Nettle, J.A.

14 The order of the Court is:

The appeal is allowed.

The sentences imposed in the court below are set aside and in lieu thereof the following are substituted:

On count 3 - imprisonment for 3 years;

On count 6 - imprisonment for 30 months;

On each of counts 2, 5, 7, 23 and 26 - imprisonment for 27 months;

On each of counts 9, 13, 14, 25 and 27 - imprisonment for 24 months;

On each of counts 11, 15, 17, 19, 21 and 124 - imprisonment for 21 months;

On each of counts 1, 4, 8, 10, 12, 16, 18, 20, 22 and 28 - imprisonment for 18 months.

It is ordered that six months of the sentence imposed on count 6, four months of each of the sentences imposed on counts 2, 5, 7, 23 and 26, two months of each of the sentences imposed on counts 9, 13, 14, 25 and 27 and one month of the sentence imposed on each of the other counts be served cumulatively upon the sentence imposed on count 3 and upon each other.

That creates a total effective sentence of 7 years and 4 months' imprisonment, in respect of which the appellant is directed to serve not less than 5 years before becoming eligible for parole.

The Court declares that the period of pre-sentence detention that the appellant has undergone to date of 239 days be reckoned as having been served under the sentence hereby imposed and that the making of this declaration and its contents be entered into the records of the Court.

The compensation orders and the forfeiture order made in the court below are affirmed.

The order that the appellant is a continuing criminal enterprise offender is vacated.

[1] [2004] VSCA 33.

[2] (1996) 188 C.L.R. 77 at 108.

[3] R. v. Giretti (1986) 24 A.Crim.R. 112 at 129 - 130.