Regina v Skaf [2001] NSWCCA 199 | Case summary

1 GROVE J : On 29 September 1999 the appellant was arraigned before his Honour Judge Nield at Parramatta District Court upon an indictment containing three counts charging first, that on 13 November 1997 he uttered a false birth certificate in the name of Ahmet Oz, knowing it to be false; second that on 3 December 1997 at Parramatta he used an instrument namely a learner's drivers licence in the name of Ahmet Oz which he knew to be false with the intention of inducing someone to accept that instrument as genuine and because of that acceptance to register a BMW motor vehicle to that other or to another person's prejudice, and third, that on 22 December 1997 at Lidcombe he used the learner's drivers licence in the name of Ahmet Oz which he knew to be false with the intention of inducing someone to accept it as genuine and issue a replacement certificate of registration for the BMW motor vehicle mentioned in the previous count. 2 He asked that two further offences be taken into account pursuant to s21 of the Criminal Procedure Act 1996. These offences charged that on or about 5 January 1998 the appellant was accessory before the fact to the disposal of the BMW motor vehicle mentioned in the indictment and that on 5 June 1998 he was in possession of a false instrument (a driver's licence in the name of Mohamed Beyrouthi). 3 A record of proceedings on 29 September 1999, signed and dated by his Honour includes the following: "Indictment presented. Accused arraigned. Plea: each count - guilty. Prisoner admits additional offences on Form 1. Criminal Procedure Act document. Sentencing stood over to 9.30 am 19/11/99." 4 Further notations refer to obtaining a report from Probation and Parole Service and continuation of bail. 5 On the remand date (19 November 1999) written material comprising the Crown case was tendered and his Honour adjourned to read it and thereafter returned to hear evidence from the appellant and his wife. Counsel addressed and the final transcript note of proceedings on that day reads as follows: "HIS HONOUR: Mr Punch, I will sentence your client in two weeks' time when I return from Cowra. DISCUSSION AS TO SUITABLE DATE. STOOD OVER FOR SENTENCE ON FRIDAY 10 DECEMBER 1999 at 9.30 am. BAIL CONTINUED." 6 On 10 December 1999 his Honour ordered that on each count of the indictment and to be served concurrently, the appellant be sentenced to a minimum term of one year and three months imprisonment with an additional term of one year and three months; that the minimum terms be served by periodic detention and that the appellant pay compensation of $46,000 for Paul and Dominic Romeo (the purchasers of the "rebirthed" BMW motor car) and $39,570 for the insurer which had paid the original owner in respect of the theft of the car. 7 The learned judge epitomized the facts in his remarks on sentence and I extract the following therefrom. 8 On 25 October 1997 a BMW sedan owned by Vitascope Pty Limited was stolen. Its value was approximately $77,300. 9 On 13 November 1997 the appellant applied to the Roads and Traffic Authority for a learner's drivers licence in the name of Ahmet Oz and produced a birth certificate in the name of Ahmet Oz. This constituted the offence charged in the first count of the indictment. 10 On 3 December 1997 the appellant using the name of Ahmet Oz applied to the Roads and Traffic Authority for registration of the BMW sedan which had been stolen on 25 October 1997 into the name of Ahmet Oz. This conduct constituted the second count of the indictment. 11 On 22 December 1997 the appellant, again using the name of Ahmet Oz, applied to the Roads and Traffic Authority for a replacement registration of the BMW sedan which had been registered in the name of Ahmet Oz on 3 December 1997. This conduct constituted the third count in the indictment. 12 On 5 January 1998 Paul and Dominic Romeo purchased a BMW sedan from a man using the name of Ahmet Oz for the sum of $46,000. They received the vehicle which had been stolen in October and which belonged to Vitascope Pty Limited. The person with whom the Romeos dealt and who was using the name of Ahmet Oz was not the appellant. The first offence taken into account on the Form 1 related to the appellant having acted as an accessory before the fact to this disposal of the motor car to the Romeos. 13 As a result of damage to the one of the keys which had been provided, the Romeos sought a replacement key from a BMW dealer and a consequent check identified the vehicle as having been stolen and it was in due course seized by police. 14 Investigation including the development of a fingerprint upon a document submitted to the Roads and Transport Authority led to police arriving at the appellant's home on 5 June 1998. They were at the time in possession of a search warrant which was executed. During the search a driver's licence in the name of Mohamed Beyrouthi, but bearing the appellant's photograph was found and this founded the second charge on the Form 1 document. 15 The charges would appear to comprehend all the allegations of criminal misconduct by the appellant. As his Honour remarked in the course of proceedings, it could be inferred that there was a serious criminal enterprise under way, the BMW possibly being stolen "to order". Save stating that he was recruited by a school acquaintance to do what he did, the appellant asserted that he could give no further information to authority for fear of reprisal against himself and family and his Honour impliedly accepted that this was the case and it was left unchallenged by the Crown. 16 The relief sought by the appellant is limited to seeking the quashing or variation of the compensation orders. No challenge is offered against the orders for imprisonment. 17 His Honour did not express the source of power upon which he drew to make the compensation orders and the alleged effect of changes to the relevant legislative framework and the powers vested thereby are contended to vitiate the orders. It is however convenient to deal with the elements of compensation to the respective recipients separately. 18 I deal first with the compensation payable to the insurer. The specified sum of $39,570 represents the difference between the payout to the insured victim of the theft (Vitascope Pty Limited) and receipts from the sale of the vehicle after its recovery. As above stated the theft took place on 25 October 1997. The evidence showed that the insurer paid the claim on 6 November 1997. The first offence of any sort charged against the appellant was committed on 13 November 1997. It is perhaps important, even if self evident, to observe that no allegation was made that the appellant was involved in the theft. Irrespective of the identity of particular statutory provisions which may be applicable, no order can be made unless, at the very least, there is some causative link between the conduct charged against the offender and the loss by the intended recipient of compensation. As senior counsel for the Crown candidly observed "it is difficult to see how the insurance company suffered loss through or by reason of what (the appellant) later did". I agree with that observation. Irrespective of what approach is adopted there is no basis for ordering the appellant to compensate the insurer for paying out on the risk against which it insured and that part of the order made below must be quashed. 19 The balance of compensation order required payment of $46,000 for the benefit of the Romeos. 20 Senior counsel for the appellant submitted that, in the absence of specification by his Honour, it appeared that the purported source of power was s77B of the Victims Support and Rehabilitation Act 1996. That provision and those surrounding it (s77A and s77C) are contained in Part 4 of the Act which was proclaimed to commence on 8 December 1999, that is two days before the pronouncement of sentence and orders against the appellant. Clause 8(1) of Schedule 3 is pertinent: "8(1) Part 4 of this Act applies to persons convicted or found guilty of offences after the commencement of that Part even though the proceedings were commenced before that commencement." 21 The relevant provisions are: "77A In this Division: aggrieved person , in relation to an offence, means a person who has sustained loss through or by reason of: (a) an offence for which the offender has been convicted or (b) a further offence that a court has taken into account under Division 3 of Part 3 in imposing a penalty for an offence for which the offender has been convicted. Court means the Supreme Court, the Court of Criminal Appeal, the District Court or a Local Court. Direction for compensation means a direction for compensation under section 77B. 77B (1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a specified sum be paid out of the property of the offender: (a) to any aggrieved person, or (b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 in imposing a penalty for an offence for which the offender has been convicted. (2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person. 77C A court may not give a direction for compensation: (a) for any loss for which compensation is payable under Part 2 or under Division 1 of this Part, or (b) for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt." 22 Unless those provisions are applicable the compensation which could have been ordered was governed by a provision in the then named Victims Compensation Act 1996 limiting the amount to $50,000. The maximum of the civil jurisdiction of the District Court (which is the limit if s77C applies) is $750,000. 23 A threshold question arises therefore when was the appellant convicted? 24 As observed by Dawson and McHugh JJ in Maxwell v The Queen (1996)184 CLR 501 @ 507: "The question of what amounts to a conviction admits of no single comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked." 25 Their Honours referred to the judgment of Tindal CJ in Burgess v Boetefeur (1844) 7 Man & G 481: "The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court." 26 However as Toohey J dissenting in the result in Maxwell, but also referring to that dictum of Tindal C.J., pointed out: "…….in Cobiac v Liddy (1969) 119 CLR 257 at 271, Windeyer J said that if 'more strictly legal sense' meant use by lawyers: 'I think the opposite of what he said is more accurate.' " 27 Gaudron and Gummow JJ examined cases of what constituted conviction in the context of pleas of autrefois convict or autrefois acquit and in Maxwell applied a test that for conviction to occur there must be some act on the part of the court by which it has indicated a determination of the question of guilt. 28 Reference was also made to Hinton v The Queen [2000] FCA 1019 where it was said that: "A court will not be taken to have convicted a person unless it does some act which unequivocally indicates that this was its intention".

It is observed that this statement was made in the context of the jurisdiction of the Federal Court, noting that an appeal to a Full Court lies from a judgment which is entered upon a verdict in a criminal trial and not a verdict, because s4 of the Federal Court Act does not include the verdict of a jury in its definition of judgment. 29 Senior counsel relied upon the circumstance that on 10 December Nield DCJ formally included in his remarks on sentence the words "for each of the three offences to which you have pleaded you are guilty, you are convicted" and contended that this, added to the total compensation order exceeding the amount available if conviction occurred before 8 December demonstrated that his Honour did not intend and had not convicted the appellant until 10 December. 30 Whilst I would acknowledge that conviction did not take place upon the pleas of guilty being made at the arraignment hearing on 19 September, I am of opinion that guilt had been determined and conviction had taken place by the conclusion of the hearing on 19 November. His Honour had received the evidence in the Crown case and specifically adjourned for the purpose of reading it. That he had done so was manifest in some of the questions which he asked during the evidence on behalf of the appellant which followed. His final remark that the appellant would be sentenced upon his return from circuit plainly conveyed that his Honour had been satisfied of and had therefore determined the guilt of the appellant at that point. 31 In Maxwell , Gaudron and Gummow JJ had opined that "……. conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question" @ p 531. Their Honours went on to cite with approval R v Jerome & McMahon 1964 Qd R 595 where it was said that (conviction) may appear "……. even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained." As at 19 November 1999 the proceedings had gone far beyond that, evidence relevant to guilt and to sentence had been received and completed, addresses had concluded and there remained only imposition and accompanying remarks both of which necessarily follow subsequent to conviction. 32 Part 4 of the Victims Support and Rehabilitation Act was therefore not applicable to the proceedings and any question of compensation was governed by s71(1) of the Victims Compensation Act. 33 That provision was: "71(1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a sum not exceeding $50,000 be paid out of the property of the offender: (a) to any aggrieved person, or (b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any injury or loss sustained through, or by reason of, the offence or, if applicable, any other offence taken into account (under section 21 of the Criminal Procedure Act 1986) when sentence was passed on the offender for that offence." 34 The appellant contends that there is no causal connection between any offence committed by him and the loss by the Romeos. His Honour made no finding of what specific conduct of the appellant (comprised in which offence or offences) caused their loss. The absence of findings upon which the order was based or reasons for it, is demonstrative of error and the matter is thereby opened up for reassessment by this Court. 35 I understood senior counsel for the Crown to rely upon the offences charged in count 2 of the indictment and the first on Form 1 as providing a sufficient basis for the order. None of the other offences could conceivably be causally connected with loss by the Romeos. I agree that the words "through, or by reason of" in s71(1) should be construed in a broad and comprehensive fashion: cf Fagan v The Crimes Compensation Tribunal 1982 150 CLR 666 but construction must be applied in a commonsense way. 36 I have already extracted his Honour's epitome of the facts concerning count 2 in the indictment. The evidence (in the form of the material tendered by the Crown) shows that when the Romeos paid "Ahmet Oz" they received no registration papers and I am unable to perceive any significant nexus between what the appellant had done on 3 December previously and their loss. Given that the person presenting himself as "Ahmet Oz" was not the appellant and that the Romeos paid him their money in exchange for delivery of the vehicle without registration papers it is open to inference that the transaction would have taken place no matter what name in which the vehicle was registered provided the fraudster with whom they were obviously willing to deal, adopted that name. 37 Although it must be conceded that there was a link in the sense that the particular vehicle which was handed over was registered in the name of Ahmet Oz and the appellant had procured that registration I do not consider that that supports a finding that the registration was causative of Romeos' loss. 38 It was submitted by the Crown that, but for the appellant's action, if Mr Paul Romeo checked with REVS (the Register of Encumbered Vehicles maintained by the Department of Fair Trading) he would have learned that the vehicle had been stolen. It was accepted however that REVS is not a register of title. There is no evidence whether it was ever the subject of encumbrance. I am unpersuaded that the finding suggested should be made. 39 The acts or omissions of the appellant constituting the first offence listed in the Form 1 are difficult to identify beyond what was charged in counts 2 and 3 of the indictment. As I have indicated I am unpersuaded that the isolated act of re-registration of the car caused the loss to the Romeos. The Crown has not pointed to any other facts giving rise to potential liability. More importantly, the learned sentencing judge did not make any finding as to what constituted the appellant's offence first scheduled on the Form 1 beyond that he had procured the registration of the vehicle which the Romeos in fact purchased. The deficiency was mentioned in argument but the relief sought was limited to seeking a quashing of the compensation order. In a general sense there is almost by definition a nexus between the actions of an accessory before the fact to a crime and the victim of that crime and the seeming incongruity of finding that it is absent in this case is not overlooked. However, in the circumstances it will suffice to make the order sought by the appellant without exploring other possible forms of relief. 40 In the light of those views, even if I am wrong in concluding that conviction occurred before 8 December 1999, the orders for compensation should not be sustained. I have, however, expressed my opinion on the "conviction" point in deference to the argument presented by both parties in that regard. 41 I propose the following orders:

Regina v Skaf

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