Regina v Davies [2011] SBCA 8; Criminal Appeal 15 of 2010 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J.)

COURT FILE NUMBER: Criminal Appeal Case No. 15 of 2010 (On Appeal from High Court Criminal Case No. 345 of 2010)

DATE OF HEARING: 3rd May 2011
DATE OF JUDGMENT: 9th May 2011

THE COURT: AULD P
McPHERSON, CBE, JA
WILLIAMS JA.

PARTIES:

REGINA
Appellant

V

ROY MR DAVIES
Respondent

ADVOCATES:
Appellant: MS ANDIE DRIU

Respondent: MR EDWARD CADE

KEY WORDS: Double punishment for offences of obtaining by false pretences and money laundering,

RESERVED:
ALLOWED ALLOWED
8 PAGES:

JUDGMENT OF THE COURT

1. This appeal involves an issue of the validity of a charge and conviction of money laundering of proceeds of an offence of obtaining by false pretences where there was a broad overlap of the facts relevant to a sentence for each offence.

2. The circumstances giving rise to the appeal are that on 20th July 2010 Principal Magistrate Garo sentenced Mr Roy Davies, on his plea of guilty, to three years’ imprisonment on one charge of obtaining money by false pretences, contrary to section 308(a) of the Penal Code. In fixing on that sentence the Magistrate had before him, and took into account, aspects of Mr Davies’ disposal of the dishonestly obtained money. These were also part of the facts relied on by the Crown in the related charge against him of money-laundering the proceeds, contrary to section 17(1)(a)(i) of the Money Laundering and Proceeds of Crimes Act 2002. The Magistrate declined to deal with the latter charge on the ground that it could not be tried summarily, and, on 9th August 2010, committed Mr Davies for trial on it to the High Court.

3. On 25th October 2010 Mr Davies was arraigned before Mwanesalua J on the money-laundering charge. Mr Edward Cade, his counsel did not challenge the arraignment on the ground of autre fois convict or by seeking a stay for abuse of process by the prosecution on the ground that it was essentially the same as the false pretences offence. Mr Davies pleaded guilty to the money-laundering charge. The Judge, by his acceptance of the plea, convicted him of it, and, after hearing submissions from both parties as to sentence, reserved judgment on that matter to 1st November 2010.

4. Counsel for the Crown, Ms Natalie Kesaka, in her summary of the prosecution facts and sentencing submissions before the Judge on 25th October 2010, had detailed the way in which he had dealt with the proceeds of the false pretences offence, characterising them as aggravating features of both offences.

5. Mr Edward Cade, on behalf of Mr Davies, urged the Judge not to impose an additional punishment to that imposed by the Principal Magistrate for the false pretences offence, arguing that, as in most such cases, all or most the money-laundering conduct was part and parcel of the false pretences.

6. On 1st November 2010, Mr Davies was brought back before Mwanesalua J for sentence. Again, there was no motion on behalf of Mr Davies in arrest of the proceedings, in particular as to sentence. The Judge “quashed” the conviction, purportedly pursuant to section 280 of the Criminal Procedure Code by “acquitting” him of it because, in his view, any sentence would amount to “double punishment” for the same offence, contrary to the proviso to section 2 of the Penal Code. In doing so, he referred to the prosecution’s summary of facts put before him on 25th October, which had, as I have said, included reference to the money-laundering of the false pretences proceeds, and observed:

“These facts merely relate to a count of false pretence on which the defendant pleaded guilty, [was] convicted and sentenced to ... imprisonment. The prosecution did not present any facts in relation to [the] count of money laundering on which the defendant entered a guilty plea and [was] convicted by the court. The prosecution has a duty to assist in the task of passing sentence by an adequate presentation of facts.

...

The elements/ingredients of the money laundering count laid against the defendant are set [out] in the particulars to the information filed against him. It is clear from [the] sentencing submissions in this case that the defendant acquired money from an account at Bank South Pacific, used the money to purchase a car, with the knowledge that the money was obtained directly, from acts of false pretence which constituted an offence in Solomon Islands.

The Court is of the view that the criminality of the offence of money laundering in this case, that is to say, the acquiring, possessing and using the stolen money is encompassed within the Penal Code offence of obtaining money by false pretence [of] which the defendant had been convicted and sentenced for 3½ years by the Central Magistrates’ Court.”

7. The Judge went on to say that to sentence Mr Davies now for this offence of money laundering would amount to “double punishment”, contrary to the proviso to section 2 of the Penal Code. His solution was, as he described it, to “quash” the money-laundering conviction pursuant to section 280 of the Criminal Procedure Code, and to order his “acquittal” of it.

8. Section 280 of the Criminal Procedure Code provides:

“(1) When any person has, in a trial before the High Court, been convicted of an offence, the Judge may reserve for further consideration any question which has arisen in the course of the trial, and the determination of which would affect the event of the trial

(2) If the Judge reserves any such question, the person convicted shall, pending the decision thereon, be remanded in prison or, if the judge thinks fit, be admitted to bail; and upon such further consideration on any question so reserved the judge may affirm or quash the conviction.”

9. It is common ground that the Judge had not, on 25th October 2010 or at any time before 1st November 2010, reserved the issue of guilt of Mr Davies on the money laundering charge, only the matter of sentence.

10. The Crown now appeals, pursuant to section 21(1)(a) of the Court of Appeal Act, the Judge’s acquittal of Mr Davies of the money laundering offence, maintaining that he went wrong on two overlapping respects: first, by convicting him on his plea of guilty to money laundering without proceeding to sentence him, and instead purporting to acquit him of the offence; and secondly, treating the money-laundering offence as the same in substance as the false pretences offence on which Mr Davies had earlier been convicted and sentenced by the Principal Magistrate.

11. On the first of those issues, Ms Andie Driu, for the Crown, submitted that the Judge, having convicted Mr Davies on the money laundering offence, had no power to acquit him, and was in breach of section 275(3) of the Criminal Procedure Code in failing “to pass sentence on him according to law”. She added that the Judge had wrongly sought to justify that course by reference to the power of a judge under 280 of the Criminal Procedure Code to reserve matters going to guilt or innocence, since he had not made any such reservation on 1st November 2010 when convicting Mr Davies of money laundering.

12. On the second issue, Ms Driu submitted that the Judge wrongly found in the circumstances that the convictions of Mr Davies for the two offences were the same offence so as to expose him to “double punishment”. She maintained that, as a matter of law, the two matters charged were different statutory offences, albeit arising out largely overlapping facts. However, she conceded in her oral submissions that the resultant sentences should reflect no more than the total criminality involved, an outcome readily achievable here by imposition of concurrent sentences.

13. Mr Cade, for Mr Davies, submitted to the contrary under both issues, but such as to lead to a similar outcome by way of punishment.

14. As to the first issue, he initially argued that the mandatory provision in section 275 of the Criminal Procedure Code that conviction in the High Court should be followed by sentence was qualified in the circumstances here. The circumstances, as he saw them, were that the Judge had exercised his power to quash the conviction and substitute an acquittal in the exercise of, or as a result of, a power of reservation of matters going to conviction or acquittal under 280 of the Criminal Procedure Code. However, in his oral submissions he acknowledged - as the Judge had also acknowledged in his sentencing remarks – that Mr Davies had been convicted of the money-laundering offence on 25th October 2010. He also acknowledged that it followed that, in the absence of such reservation, and by virtue of section 275 of the Criminal Procedure Code, the Judge, unlike a magistrate,[1] had had no option but to proceed to pass sentence on him.

15. Mr Cade’s fall-back position lay in the second issue. He submitted, that, if the Judge had had no option but to sentence Mr Davies for the money-laundering offence, he should have done so in a manner that did not amount to “double punishment”. That is, of a kind envisaged by section 2 of the Penal Code and in accordance with the high Australian authorities[2] that an offender should not be punished twice for overlap of common factual elements in two offences of which he is convicted. He maintained that the Principal Magistrate, when sentencing Mr Davies for the offence of false pretences, clearly had before her and took into account all or much of his use and incidental disposal of the monies dishonestly derived from the false pretences offence. Mr Cade referred also to the Judge’s observation [in the passage from his judgment on 1st November 2010 set out above,] and that there was a heavy overlap between the elements making up both offences, regardless of the way in which the particulars of each were put respectively to the Principal Magistrate and Mwanesalua J.

16. As to the first issue, Ms Driu rightly relied on the obligation imposed by section 275(3) of the Criminal Procedure Code on a High Court Judge in a criminal trial to pass sentence on a convicted man. Dicta to the contrary of Cameron J in Fatah Idris v Regina, Cr Case 108 of 2008, in particular at paras 24 and 25, that where a money laundering charge added nothing to other charges, the proper course was to dismiss the charge pursuant to the power in section 203 of the Code, since conviction would be punishment in itself, do not apply to proceedings on indictment in the High Court. The only basis upon which the Judge could properly have taken that course here would have been by reserving, pursuant to section 280 of the Code, such question for consideration on the sentencing hearing on 25th October 2010. He did not do that. It was not, therefore, open to him, in his judgment on 1st November 2010, to “quash” the conviction of money laundering or to “acquit” Mr Davies of it. We accordingly allow the Crown’s appeal so as to reinstate the conviction of money laundering made on his plea of guilty on 25th October 2010.

17. On the second issue, of “double punishment”, the starting point is the proviso to section 2 of the Penal Code, which states:

“... if a person does an act which is punishable under this Code and is also punishable under another Act, Statute or other law of any of the kinds mentioned in this section, he shall not be punished for that act both under the Act, Statute or law and also under this Code.”

18. So, while Ms Driu correctly argued that were here two offences, not one, she also correctly conceded that where, as here, there is a great overlap in the facts of the two cases, the fundamental principle against “double punishment” exemplified by that provision, should be honoured at the sentencing stage by imposition of a sentence, which when put alongside the sentence for the other offence, reflects the true criminality as a whole. Where there is a complete overlap of facts and criminality, this may take the form of a concurrent sentence of equal or lesser length. Where the overlap is not exact or close, the concurrent sentence can be less or more according to the difference in acts making up each offence, the test still being to settle on a penalty that reflects the true level of criminality overall. The exercise was well described by this Court in Angitalo v Regina Cr App No 4 of 2004, in the following passage at page 4, cited by Ms Driu:

“The fundamental underlying principle is that a sentence should reflect the true criminality involved in the offences, without on the one hand punishing the offender more than once for same or essentially the same criminal conduct or, on the other hand, failing to punish the offender for committing a crime. This will almost always be a matter of fact and degree, requiring the exercise of judicial discretion. See e.g.Pearce v The Queen [1998] HCA 57; 194 CLR 610, at paras 40 – 50 per McHugh, Hayne and Callinan JJ. The fundamental rule is the Court should ensure that both the end result does not exceed what is the appropriate punishment for the offender’s criminal conduct, considered as a whole, and that result adequately punishes the offender for the crimes actually committed.”

19. Given the considerable overlap between the facts constituting each of the offences here, we consider that the Judge, in fulfilling his statutory duty to sentence Mr Davies for the money laundering offence, should have reflected the total criminality involved by imposing a concurrent prison sentence. We see no basis for it being either longer or shorter than the three years fixed by the Magistrate, and accordingly allow the Crown’s appeal to quash the Judge’s “acquittal”, following his conviction on the money-laundering offence, and impose such a sentence.

20. We conclude this judgment by repeating a caution made by Judges in recent years following the increasing recourse by prosecutors to new and wider money laundering legislation. Persons who obtain money or other property dishonestly usually do so in order to make use of it or its proceeds. Such use is often unworthy, and is routinely before a sentencing court as part of the story on which it is asked to consider the nature and level of criminality involved. To garnish what has sometimes been called a “predicate” offence of dishonesty with a charge of money laundering often adds nothing to what a court needs for that task. See in particular, the strictures of the New South Wales Court of Criminal Appeal in Schembri v Regina I[2010] NSWCCA 149, at paras 11 to 16, and also the same Court’s treatment of the tendency in Dela Cruz v R [2010] NSWCCA 333, at paras 11- 19; see also Thorn v R [2009] NSWCCA 333, at paras. 30 and 31.

21. Accordingly the Crown’s appeal is allowed so as to quash the Judge’s “acquittal” of Mr Davies, following his conviction of him on his plea of guilty to the money-laundering offence, and to impose a sentence for the offence of three years, to be served concurrently with the like sentence imposed by the Principal Magistrate for the offence of obtaining by false pretences.

Sir Robin Auld
President

McPherson, CBE, JA
Member

Williams, JA
Member

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^[1]Penal Code, s. 35; and Criminal Procedure Code, s 203; see also Lauzik Muskush Chand v State CA No AAU0013 of 1985
^[2]Pearce v R [1998] HCA 57; (1998) 194 CLR 610, at paras 40 and 42, and Thorn v R [2009] NSWCCA 294, at para 27.