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You are here: BAILII >> Databases >> The Law Commission >> EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING [2002] EWLC 277(3) (01 October 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/277(3).html Cite as: [2002] EWLC 277(3)

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PART III

PRESENT LAW

INTRODUCTION

3.1      In this part we summarise the present law and procedures which govern how repeated instances of offending may be prosecuted. The common law doctrine of "general deficiency" and the concept of the "single continuous offence" provide two methods, each one of limited application, for reflecting a large scale of offending within a single information or indictment. Otherwise, restrictions are imposed by the rule against duplicity and the common law principles against overloading the indictment. Without an indictment which reflects the full scale of offending with which the defendant ought to be charged, any convictions obtained may be insufficient to allow the judge to impose a sentence that is commensurate with the full scale of offending. In the final section of this part we examine the position in other common law countries, looking in particular at the sentencing principles applied and the use made of substantive offences for the effective prosecution of multiple offending.

THE INDICTMENT

Duplicity issues and overloading

3.2      Rule 4(2) of the Indictment Rules 1971 proscribes the allegation of more than one offence^[1] within one count. In addition, indictments may not be overloaded beyond practical limits.^[2] Although the rule against duplicity is applied in a practical rather than an analytical way,^[3] these constraints lead to difficulties in the effective prosecution of certain multiple offences.
3.3      Two lines of authority have developed at common law which allow, in certain cases, a single count or information to be charged in relation to the aggregate activity^[4] even though the evidence discloses that offending behaviour occurred on two or more occasions. These are, respectively, cases in which there is a "general deficiency" and cases which constitute a "continuous offence".
3.4      The concept of a "general deficiency" relates to cases in which the evidence does not disclose the precise dates and amounts of each individual transaction but where it is clear on the evidence that there has been a large amount of property taken.^[5]
3.5      The concept of a continuous offence may be applied

where the individual transactions are known but where there are many transactions of the same type, frequently individually of small value, against the same victim, and it is convenient in order to reflect the overall criminality to put them together in one information,^[6] or one count, so that if the criminality can be proved, without prejudice to the defendant and having regard to the known defence, then the court will be in a position to sentence appropriately.^[7]

3.6      The question whether certain acts constitute a single criminal enterprise is one of fact and degree. A recent example, which shows how far, in some cases, the concept of a continuous offence may reach, is Barton,^[8] in which the Divisional Court upheld the conviction by a Stipendiary Magistrate.^[9] The appellant had stolen a total of £1,338.23 on 94 occasions from the till at which she worked over the period of a year. The court recognised that each line in the schedule of offences could have been charged as a separate offence but the average value of each would have been about £15. Thus, had there been ten such informations, the value would have been under £200, which did not represent the overall criminality involving theft of a sum in excess of £1,300. Kennedy LJ said:

Specimen counts or specimen informations are no longer a possibility, in the light of relatively recent decisions of this Court and of the Court of Appeal Criminal Division. To have 94 separate informations would have rightly been regarded as oppressive.^[10] … This is not a case where she had put forward a specific answer to some of the alleged takings and not to others, and that then specific answers needed to be considered separately. … The Magistrate was able to, and did in fact, give credit for the amount that he was not satisfied had been taken. So far as I can ascertain there was no discernible prejudice or unfairness to the appellant in regarding this as a continuous offence within the principles set out in the authorities to which I have referred.^[11]

3.7      This is an important case for our deliberations. The high degree of repetition involved in the offending persuaded the court to regard it as a continuous single offence. In practical terms there was no difficulty in the sentencer sentencing the defendant for what the fact-finder had decided was the true extent of the offending. The Stipendiary Magistrate was able to combine these roles seamlessly. What we have considered is whether this approach would be appropriate in the Crown Court where the fact-finder and sentencer are not one and the same person. At the moment, the Crown Court judge would be left to second guess the extent of the offending of which the jury had been persuaded and that would not fully accord with principles enunciated in Kidd.^[12]
3.8      More recently, in Rowlands^[13] the defendant pleaded guilty to a charge of theft of a sum not exceeding £1.7 million. The theft by a bank employee had taken place over an 11 year period.^[14] Had there been a trial in that case in which the defendant contested the whole allegation on the same basis, or contested particular sums as well as taking issue generally with the allegation of theft, the judge would have faced difficulty in sentencing due to the inscrutable nature of the verdict of the jury. We will return to consider this aspect of the case at paragraph 6.8 below.
3.9      We would regard the case of Barton^[15] as stretching the concept of what constitutes a single continuous offence capable of being charged in a single count about as far as it can properly be taken. Indeed, the Divisional Court has recently certified that a point of law of general public importance arose in that case although, to date, no leave has, to our knowledge, been given for that appeal to be heard in the House of Lords.^[16]
3.10      We are not tempted to regard the approach taken in Barton^[17] as available in all circumstances in which the problems for sentencing posed by Kidd^[18] might arise. It should be recognised that the exceptions to the duplicity rule are confined to the two circumstances referred to above. The strict limits to this exception to the general rule are not imposed as mere matters of technicality. Rather they are reflective of the principles enunciated in Kidd. Unless it is impossible for the Crown to particularise each offence but they can show a general deficiency, or the conduct can properly be regarded as a single continuous offence then the defendant is entitled to have each offence proved against him or her. The defendant is entitled to an opportunity to challenge the evidence in relation to each separate instance of alleged wrongdoing. Thus both the rule, the exceptions to it and the decision in Kidd reflect the principles that defendants should only be convicted of offences in respect of which guilt has been proved and, in turn, should only be sentenced for offences that have been proved or admitted.

The Evans^[19] conundrum

3.11      The principles enunciated in Kidd^[20] are:

A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence …^[21]

when combined with the rule against duplicity and the requirement that indictments should not be overloaded, create difficulties in the prosecution of particular multiple offences, in particular fraud, theft, and counterfeiting.^[22] This is because, as already noted, the offending behaviour may relate to conduct which, on each single occasion, constitutes an identifiable offence concerning a relatively small value of property, but where its repetition on a large scale would lead to substantial loss or gain.

3.12      The case of Evans^[23] illustrates this difficulty. Mantell LJ stated that:

The prosecution had presented their case against her in 24 counts. We are told that, had every cheque which had been procured been included in this indictment as a separate offence, there would have been 200 counts or more. We cannot see any judge embarking upon a trial with a jury in those circumstances with any degree of enthusiasm and without firmly insisting that the number of counts be substantially reduced. Likewise, it might well be considered unacceptable to proceed on a number of separate indictments. Also, we regard it as unrealistic to expect any defendant who has contested a case of this nature, upon being convicted, to ask for offences to be taken into consideration which he has hitherto denied. The consequence may well be that a defendant who has pleaded guilty and confessed the full extent of his fraud may be treated more harshly than a defendant who has contested the matter but has only been convicted in respect of so-called specimen counts. We have no doubt that the anomaly will be exploited by those who otherwise have no answer to a multitude of charges … However it is not within the province of this Court and certainly not on this occasion to suggest any solution … we simply remark that the position is far from satisfactory.^[24]

3.13      The need for a solution to these problems is highlighted by consideration of two multiple offending cases which were decided before the decision in Kidd.^[25] Adewuyi^[26] concerned the dishonest obtaining of over £100,000 worth of welfare benefits during a period of nearly four years. Adewuyi was convicted after a two week trial on an indictment containing specimen counts and sentenced for the full extent of the alleged offending, to four years' imprisonment. In Stewart^[27] the court dealt with nine different appeals, all involving multiple offences of obtaining benefit by deception or similar offences. Describing the range of appropriate sentences, the court identified at the top of the range those offenders who were professional fraudsters and had selected the welfare department as an easy target. The court also stressed the importance of the proper discount for a guilty plea always being given.^[28]
3.14      Since Evans,^[29] it is clear that in multiple fraud cases of this type, the defendant who pleads guilty to all of his or her offending is liable to a heavier sentence than one who goes to trial on a limited number of counts. This is contrary to basic principles of fairness and cannot be right. It emasculates a principal feature of sentencing and court procedure, that, as a starting point, there should be one third discount of sentence for a timely guilty plea.^[30]

VERDICTS AND SENTENCE - THE ROLE OF THE JUDGE IN SENTENCING

3.15      The problem posed by the decision in Kidd^[31] highlights the fundamental division between the fact-finding role of the jury, for the purpose of determining guilt, and that of the judge for the purpose of sentencing. Where there are disputed details of fact encompassed within a finding of guilt, the judge needs to form a view of those facts to determine the seriousness of the offence for the purpose of sentencing. In such cases the view, if any, of the jury on those facts in respect of which no verdict was required for the purpose of the conviction will be invisible to the court. This was emphasised to us by Buxton LJ in his response to our informal consultation:^[32]

[T]he judge sentences on the basis of his view of the case, subject only to his not being able to act on a view that is inconsistent with the verdict of the jury. When, as in most instances, the jury's verdict is inscrutable in relation to, or irrelevant to, facts that are determinative of the level of sentence, the judge has a free hand. That can be illustrated from two types of case, (i) where the jury does not pass at all on sentence-related facts; and (ii) where the verdict, although based on sentence-related facts, is neutral between various versions of them. Examples follow:

(1) The level of sentence for burglary depends importantly not so much on the amount stolen but on the perceived gravity of the act of invasion, as demonstrated by, eg, deliberately targetting elderly people living alone; threats to cause the householder to reveal where her money is; trashing the house. The jury will or at least should be told that they are not concerned with those parts of the allegations, but only with whether the offender entered the house as a trespasser and stole therein. On a guilty verdict the judge has to decide how much of the collaterals occurred and even, in a joint charge, who did what.

The same is true of rape. Extra violence, humiliation, racist insult, will all if found add years to the sentence …

(2) D is charged with possessing heroin. The amount possessed is crucial to the level of sentence. When his house is raided there are found two amounts: [one large, one small] … . The jury will be, or should be, directed that if they find D guilty as to any part of the total charged, then he is guilty on the whole count. After a guilty verdict the judge will have to decide … . Many years difference of sentence will hang on that decision; about which the jury have nothing to say.

3.16      The freedom of the judge from obligation to adopt the version of events favourable to the defendant where there are two conflicting accounts, either of which may be supported by the "inscrutable" verdict of the jury, was further emphasised by the High Court of Australia in Cheung.^[33] The court expressly rejected the notions that the jury ought to be allowed to make decisions on every aspect of the case that may be relevant to sentence and that the judge was obliged to sentence on the basis of the version of the contested facts consistent with the verdict which is most favourable to the defendant. The court reiterated that sentencing must be "consistent with the verdict" that is to say, first, it must take into account the essential elements of the offence and accept that they have been made out; but second, consistent with Kidd,^[34] the defendant must not be sentenced for something of which he or she has not been convicted or to which there is no plea of guilty.

The limits of the judge's creative role in sentencing

3.17      We should, however, remind ourselves of the limits of that "creative" role for the sentencer. Where a dispute of fact may properly be dealt with by the addition of a count on the indictment, such a count should be added.^[35]
3.18      Whilst recognising the force of the points raised above by Buxton LJ, they must be reconciled with the underlying principle in Kidd,^[36] that a defendant may only be sentenced for an offence that is either proved or admitted in court which we have placed at the core of our recommendations. To do otherwise would, as Henry LJ said in Clark:^[37]

allow him to sentence on the basis that unproved, separate and distinct offences 'aggravate' the offence of which he is convicted.^[38]

3.19      Thus we must address the tension between the two competing fundamentals identified earlier – the principle that an offender cannot be sentenced for something unless he or she admits it or has had an opportunity to test the evidence in respect of that offending in court; and the need to sentence a defendant for the totality of offending.
3.20      If you add to this the requirement that wherever there is a dispute as to the defendant's conduct, which amounts to a dispute whether the defendant committed an offence, the issue should be determined in a manageable criminal trial, the tangled and intractable nature of the problem becomes apparent.
3.21      This is not a mere problem of procedure. There are two serious principles of justice in apparent contradiction. How can it be possible to reconcile these seemingly diametrically opposed principles?

Other common law jurisdictions

3.22      We have considered the sentencing principles that apply in other Commonwealth jurisdictions to see if the Kidd^[39] problem has been addressed in a way that would offer assistance to us. We have also looked at the use made in those countries of substantive offences, to that end. We have concluded that other Commonwealth jurisdictions do not appear to have addressed these issues in a way which would offer us a useful solution to the problems we are facing.

Sentencing principles

3.23      It is generally accepted across the common law jurisdictions that a defendant should not be sentenced for conduct that could have been charged as additional, or more serious, offences but has not been so charged. For example, in Canada, the policy is that

a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more (emphasis added).^[40]

3.24      In Australia, the leading case is De Simoni^[41] (heard in the High Court of Australia on appeal from the Supreme Court of Western Australia):

[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.^[42]

3.25      The court regarded the combined effect of two principles, namely the need to consider all the circumstances of the case and the need to ensure that the defendant is only sentenced for offences of which he or she has been convicted, as meaning that the judge cannot take into account "circumstances of aggravation which would have warranted a conviction for a more serious offence".^[43] In cases of multiple theft, multiple deception, sex offences, drug offences or possessing child pornography, a wider course of conduct will almost always be capable of being the subject of further counts, unless the offending is of a type that can, in the particular circumstances, be rolled up into a single count.
3.26      In the Queensland case of D,^[44] in which the trial judge had sentenced on the basis of sexual abuse over a long period even though the conviction had only been obtained on a single count of indecent assault, the court held:

A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.^[45]

3.27      While the Australian courts accept the principle that a person should not be sentenced for offences of which he or she has not been convicted, at the same time, they continue to make use of sample counts, both at state and federal level, which allow the judge to sentence on a wider basis than the convictions alone would allow. In sentencing, judges have traditionally been allowed to exercise a wide discretion, and the above underlying principle appears to have given way to pragmatism in the face of practical exigencies.
3.28      De Simoni^[46] has not had the same effect in Australia as Kidd ^[47] has had in this country of bringing an end to the use of sample counts as a viable means of charging multiple offences, although it has highlighted the principle that defendants should not be sentenced for an offence of which they have not been convicted. One reason for this may be the slightly different way in which sample counts are used in Australia. There the approach to sample counts appears to be less formal than that formerly adopted in England and Wales, and the Australian system is often justified on the basis of consent. It is apparently "normally associated with guilty pleas",^[48] and "the accused's express and unequivocal consent is required."^[49] It is thought that if the defendant pleads guilty to counts he or she knows are representative of wider offending, he or she is impliedly admitting guilt of other offending behaviour which, it seems, may or may not be specified. The system is used to avoid overloading the indictment. This approach relies on the consent of the defendant, thus providing no solution in cases where the defendant is not prepared to admit guilt.
3.29      There is some divergence between Australian states as to the circumstances in which sample counts should be used. The Supreme Court of South Australia in Reiner^[50] thought that cases involving multiple sex offences against the same victim were the most appropriate for the use of sample counts, distinguishing them from cases of dishonesty and cases involving multiple victims. However, the Victorian and Queensland courts have allowed cases of dishonesty and those involving multiple victims to be prosecuted using sample counts. The Queensland case of Smee^[51] involved multiple dishonesty offences and the Victorian case of Wright^[52] involved dishonesty offences against multiple victims.
3.30      In Wright, the Full Court of Victoria said, in relation to the judge sentencing on the basis of 65 charges of obtaining credit by fraud:

[I]n view of the agreement between the parties … whereby the applicant was to be presented only on ten counts as representative of all the counts upon which he was committed, no objection could properly have been taken to His Honour having regard to the amounts involved in the other charges.^[53]

3.31      The system of allowing offences to be taken into consideration remains one means of allowing multiple offending to be properly sentenced and has the advantage, for the defendant, of placing a cap on the level of sentence, since any sentence must not exceed the maximum allowed for the main counts. It continues to be used in this country and abroad but its inherent disadvantage is that it depends on the defendant being prepared to plead guilty. The shortcomings of that have been demonstrated clearly in the case of Evans.^[54]
3.32      The common law doctrine of general deficiency is restated in statutory provisions in New South Wales and South Australia.^[55]
3.33      There is nothing in the Australian Model Criminal Code which appears to be directly targeted at the problem of how to deal with repetitious offending, although provision is made for the doctrine of general deficiency to be adopted when the prosecution are unable to identify precise sums in cases of repetitious theft or deception.

Use of substantive offences as a means of prosecuting multiple offending

3.34      The Canadian Criminal Code makes use of the concept of a "false pretence" as a means of enabling some repeated fraud to be prosecuted as a single offence.^[56] This would apply to those guilty of a single false pretence which led to the repetitious receipt of benefits. It does this by focusing on the false pretence as the vehicle of the fraud. Since the offence is established once the false pretence is made out, the amount obtained as a result of the false pretence can be regarded as an aggravating or mitigating factor. However, the case of Smee^[57] involved multiple offences of false pretences, tried by way of sample count, so this provision does not provide an entire solution to the problem in these sorts of cases. Other examples of false pretences offences are found in New South Wales^[58] and in South Australia.^[59]
3.35      In Australia the Model Criminal Code Officers Committee (MCCOC)^[60] has discussed the problem of repetitious fraud.^[61] One means of dealing with an aspect of the problem was the offence of organised fraud which existed under Commonwealth law. The essence of the offence was that a person could be convicted of organised fraud if he or she engaged in three or more public frauds and derived substantial benefits:

A person shall be taken to engage in organised fraud if, and only if, he or she engages, after the commencement of this Act, in acts or omissions:

(a) that constitute three or more public fraud offences; and

(b) from which the person derives substantial benefit.^[62]

3.36      The MCCOC in considering the viability of this offence for inclusion in the model code emphasised that no attempt was made to define the expression "substantial benefit". This was, apparently, because the monetary amount of the fraud was not to be the key determinant of guilt. Rather it was one factor to be considered along with the persistence of the unlawful behaviour and the degree of planning and organisation involved.^[63] It was, in addition, pointed out that there would be problems defining the notion of "organisation" and in justifying what might be regarded as an arbitrary decision on how many offences would need to be proved in order to show organised fraud.
3.37      The MCCOC concluded that there already existed a broad discretion in sentencing and thought this to be the most appropriate way to deal with the element of substantial planning and organisation sometimes suggested as an additional element for an offence of organised fraud. Thus the main argument against the introduction of an offence of organised fraud was that there was no evidence that the existing law in Australia was unable to cope. The MCCOC also noted that section 83 of the Commonwealth Proceeds of Crime Act 1987,^[64] which created the offence of organised fraud, had not been frequently used.^[65] Taking into account the overwhelming number of submissions which it received opposing the creation of an organised fraud offence, the MCCOC concluded that the Model Criminal Code should not include an organised fraud offence.

Conclusion

3.38      We have not found any significant provision, practice, or procedure adopted in any of the other common law jurisdictions from which any solution to the problems that we seek to address in this report could be drawn.

Note 1    On the question of what amounts to “an offence” see DPP v Merriman [1973] AC 584, per Lord Morris at p 593B–D: “If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling-house of B steals ten different chattels … it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act”. The test given in Blackstone’s Criminal Practice is “Can the separate acts attributed to the accused fairly be said to form a single activity or transaction?” (para D10.16).    [Back]

Note 2    Novac [1977] 65 Cr App R 107 at pp 118–119, per Bridge LJ, Kellard [1995] 2 Cr App R 134.    [Back]

Note 3    DPP v Merriman [1973] AC 584, per Lord Diplock, at p 607B–C.    [Back]

Note 4    For example in cases of theft it is the aggregate property stolen; in cases of felling trees, the aggregate number of trees felled.    [Back]

Note 5    For a more detailed exposition see Arlidge and Parry on Fraud (2nd ed 1996) p 523, see also Barton [2001] EWHC Admin 223.    [Back]

Note 6    A common example is burglary. In a single count, the theft element of an offence, contrary to s 9(1)(b) of the Theft Act 1968, may relate to a series of items capable of being charged as separate thefts. The jury may convict of burglary even when they are not sure that every item in the list of allegedly stolen goods was stolen, it is sufficient if there is unanimity on at least one of them. The essence of the offence of burglary is the activity of trespass combined with the offence of theft, and as long as one theft has taken place the offence is complete. Further, the transaction being a single one, the count is not bad for duplicity. Regarding sentence, note Brewster [1998] 1 Cr App R (S) 181. This shows that the extent of the financial loss to the victim is not the primary consideration: “The loss of material possessions is … only part (and often a minor part) of the reason why domestic burglary is a serious offence” (at p 185).    [Back]

Note 7    Barton [2001] EWHC Admin 223, para 6.    [Back]

Note 8    Barton [2001] EWHC Admin 223.    [Back]

Note 9    Now entitled a District Judge (Magistrates’ Court).    [Back]

Note 10    See commentary questioning this expression in Criminal Law Week, 2001, issue 26, p 3: It may be asked oppressive to whom? The court clerk, possibly, if bound to read out 94 informations, but this surely could be short-circuited; but not to the defendant who is in any event facing the totality of the allegation. It would seem that too much is made of the practical difficulties created by the decision in Canavan [Kidd]. In an age of word-processors, the production of 94 almost identical charges is not difficult. The more similar they are, the easier the exercise; the more dissimilar they are, the greater the need to have distinct charges for the greater the likelihood that different issues will arise.    [Back]

Note 11    Barton [2001] EWHC Admin 223, paras 22–23, per Kennedy LJ.    [Back]

Note 12    [1998] 1 WLR 604.    [Back]

Note 13    The Daily Telegraph, 10 November 2001 (unreported).    [Back]

Note 14    On numerous occasions, the defendant stole cash from the till and made a book entry showing that sum to have been paid to a worthy customer. No computer record was made. The debits were all put on the suspense account. (Suspense accounts are used by banks to gather money for a temporary purpose, in this instance it was money deducted from interest bearing accounts for payment to the Inland Revenue, who were paid at the end of the month leaving the account balance at zero.) At the end of any month the defendant wrote a cheque, or cheques, from the bank payable to the suspense account, crediting it with the necessary sum to bring the balance to zero. No audit that would have revealed this was carried out during this period and the offending continued undetected for an eleven year period.    [Back]

Note 15    [2001] EWHC Admin 223.    [Back]

Note 16    On 1 March 2002, the Divisional Court (Kennedy LJ and Forbes J) certified the following question: Where a person faces prosecution in the Magistrates’ Court for stealing sums of money from the same victim on a large number of separate occasions in an identical manner on each occasion over a long period of time without the possibility of advancing a different defence in respect of any occasion and there is evidence which enables the prosecution to give particulars of the amount and date of each theft is it permissible to charge all the thefts in a single information alleging theft of the total amount, or does Rule 12 of the Magistrates’ Courts Rules 1981 demand that each separate theft should be the subject of a separate information? Is the position any different for a person facing prosecution in the Crown Court in similar circumstances?    [Back]

Note 17    [2001] EWHC Admin 223.    [Back]

Note 18    [1998] 1 WLR 604.    [Back]

Note 19    [2000] 1 Cr App R (S) 144.    [Back]

Note 20    [1998] 1 WLR 604.    [Back]

Note 21    [1998] 1 WLR 604 at p 607B, per Lord Bingham CJ.    [Back]

Note 22    Lord Bingham thought that the problem could be avoided in the future by including more counts in the indictment (see para 2.9, above). In making those comments though, the LCJ was not specifically considering other types of cases, such as multiple fraud, theft or counterfeiting.     [Back]

Note 23    [2000] 1 Cr App R (S) 144. The appellant, who had been convicted on sample counts alleging the obtaining of £2,807 in housing benefit fraud, was sentenced to three years’ imprisonment on the basis of an overall fraud involving £25,000 over a period of four and a half years. Following Kidd [1998] 1 WLR 604, the appeal was allowed. On appeal the court limited sentence to that appropriate for a persistent and sophisticated fraud involving fraudulent documents in some quantity and the obtaining of £2,807. A sentence of two years’ imprisonment was substituted. See also Rosenburg [1999] 1 Cr App R (S) 365 where, even though the facts of over 100 additional counts, not included in the indictment, were identical, except for the dates, and the jury would undoubtedly have convicted on the remaining charges had they been included, the appeal court held that it was wrong, in principle, to impose a sentence based on anything more than the criminality represented within the nine counts in the indictment.    [Back]

Note 24    [2000] 1 Cr App R (S) 144, per Mantell LJ at pp 147–148.    [Back]

Note 25    [1998] 1 WLR 604.    [Back]

Note 26    [1997] 1 Cr App R (S) 254.    [Back]

Note 27    (1987) 9 Cr App R (S) 135.    [Back]

Note 28    (1987) 9 Cr App R 135 at p 136.    [Back]

Note 29    [2000] 1 Cr App R (S) 144.    [Back]

Note 30    Note in Barber, The Times, 20 November 2001, the Court of Appeal held that in relation to offences that are triable either-way where a guilty plea was entered before venue was decided, a discount greater than one-third would often be appropriate.    [Back]

Note 31    [1998] 1 WLR 604.    [Back]

Note 32    His view was that much of the concern presently expressed about difficulties of sentencing, and the conferring on the judge of too much power to determine the extent and gravity of the offence, is wholly artificial. That already occurs, without any objection, in relation to a wide variety of offences, and only comes to attention when the more or less arbitrary rules of duplicity intervene.    [Back]

Note 33    185 ALR 111 (2002). The defendant in this case was convicted in the Supreme Court of New South Wales of the federal offence of being knowingly concerned in the importation of a commercial quantity of heroin. He was given a life sentence with a non-parole period of 21 years and 11 months. It was not clear from the jury’s verdict which of the two evidentiary bases advanced by the prosecution they accepted. The judge based his sentence on the version least favourable to the defendant, who consequently appealed to the High Court of Australia under two main heads. He argued that where it was unclear which version of events the jury had accepted, the judge was bound to adopt that most favourable to the defendant if the indictment could have been amended to allow the jury’s view to be identified. He further argued that determination by the judge of factual matters for the purposes of sentence infringed his constitutional right to a jury trial. The court held that the judge is entitled to sentence on any factual basis that is not inconsistent with the jury’s verdict. This does not constitute an infringement of the right to be tried by jury, but the prosecution should, however, endeavour to draft the indictment so as to “obtain the jury’s view upon all issues of significance to sentence” (at p 124).    [Back]

Note 34    [1998] 1 WLR 604.    [Back]

Note 35    This point was made recently in Eubank [2001] Crim LR 495. The defendant had pleaded guilty to a single count of robbery. A Newton hearing was conducted to determine whether or not the defendant had a gun at the time of the robbery. The judge sentenced on the basis that the defendant was carrying at least an imitation gun. The Court of Appeal held that “[i]f the Crown were going to invite the judge to come to the conclusion that the offence was committed with a firearm, then the appropriate course was to include a count in the indictment to make the position clear” (at p 496).    [Back]

Note 36    [1998] 1 WLR 604.    [Back]

Note 37    [1996] 2 Cr App R (S) 351.    [Back]

Note 38    Ibid at p 356.    [Back]

Note 39    [1998] 1 WLR 604.    [Back]

Note 40    A Manson, P Healy and G Trotter, Sentencing and Penal Policy in Canada (1st ed 2000) p 156.    [Back]

Note 41    (1981) 147 CLR 383.    [Back]

Note 42    Ibid at p 389.    [Back]

Note 43    Ibid.    [Back]

Note 44    [1996] 1 Qd R 363.    [Back]

Note 45    [1996] 1 Qd R 363 at p 404.    [Back]

Note 46    (1981) 147 CLR 383.    [Back]

Note 47    [1998] 1 WLR 604.    [Back]

Note 48    R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed 1999) p 131.    [Back]

Note 49    R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed 1999) pp 131-132.    [Back]

Note 50    (1974) 8 SASR 102 at p 116.    [Back]

Note 51    (1985) 19 A Crim R 261.    [Back]

Note 52    13/5/74, cited in R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed 1999) p 132.    [Back]

Note 53    13/5/74 at p 9, cited in R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed 1999) p 132.    [Back]

Note 54    Discussed at para 3.12, above.    [Back]

Note 55    Crimes Act 1900 (New South Wales), s 161, Criminal Law Consolidation Act 1935 (South Australia), s 179.    [Back]

Note 56    Canadian Criminal Code, s 362.    [Back]

Note 57    (1985) 19 A Crim R 261.    [Back]

Note 58    New South Wales Crimes Act 1900, s 179.    [Back]

Note 59    South Australia Criminal Law Consolidation Act 1935, s 195.    [Back]

Note 60    The Model Criminal Code Officers Committee was established by the Standing Committee of Attorneys-General (SCAG) to review all Commonwealth criminal law and develop a Model Criminal Code. It issues reports and discussion papers that may be enacted in Australia at Commonwealth and State level. Eventually it is hoped that the Model Criminal Code will be adopted in all jurisdictions, but this has not happened to date.    [Back]

Note 61    Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Final Report: Chapter 3, Theft, Fraud, Bribery and Related Offences, December 1995.    [Back]

Note 62    Proceeds of Crime Act 1987 s 83, as repealed.    [Back]

Note 63    If the jury did not find the organised fraud offence proved, it was able to return an alternative verdict in relation to the public fraud offences.    [Back]

Note 64    As repealed.    [Back]

Note 65    It also noted the argument that there does not seem to be any reason in principle why organised fraud, rather than organisation to commit other types of offences (such as theft, drugs offences, prostitution offences and corruption) warranted a special offence.    [Back]