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Thursday, 25 June 2009

Continuing criminal enterprise

When I was reading up on gambling addictions as a form of mitigation last month (see my post on R v Grossi), I came across a series of provisions that I hadn't noticed in the Sentencing Act 1991 before. Under s 6I, a finding of continuing criminal enterprise may double the maximum sentence available for a relevant offence.

Section 6H relevantly defines a continuing criminal enterprise offender:

continuing criminal enterprise offender means an offender who is found guilty of—
(a) a continuing criminal enterprise offence and who in another trial or hearing or more than one other trial or hearing had been found guilty of 2 or more relevant offences;
(b) 2 continuing criminal enterprise offences and who in another trial or hearing had been found guilty of a relevant offence;
(c) 3 or more continuing criminal enterprise offences;
relevant offence, in relation to a continuing criminal enterprise offence, means a continuing criminal enterprise offence of which an offender has been found guilty within the period of 10 years before the date on which the later offence was committed.

It's surprising these provisions aren't referred to more. While the dollar values involved - in the case of every relevant offence currently included at Schedule 1A, a minimum $50,000 - are high for the summary jurisdiction, they're not unheard of. The offences involved, such as theft, handling stolen goods, and deceptions, are staples of the Magistrates' Court.

Importantly, unlike Clause 16 of Schedule 4 of the Magistrates' Court Act 1989, (and cl 3.4 of Schedule 2 of the Criminal Procedure Act 2009 that replaces it in October) these provisions don't draw a distinction between motor vehicles and other thefts. It's likely that a car thief dealt with in the Magistrates' Court on a number of occasions will be considered a continuing criminal enterprise offender.

If a court is satisfied the offences meet the relevant criteria for a continuing criminal enterprise, the maximum term of imprisonment for the offence is doubled: Sentencing Act 1991 s 6I. This might influence a magistrate considering if summary jurisdiction is appropriate.

The Court of Appeal decided in R v Arundell [2003] VSCA 69 and affirmed in R v Rousetty [2008] VSCA 259 that offences occurring before these provisions commenced operation (that is, 1 July 1998) might still be considered relevant offences for the purposes of continuing criminal enterprise. "Rolled up" counts that total $50,000 or more are not properly considered continuing criminal enterprise offences: R v Ralphs [2004] VSCA 33.

1 comment:

Habeas Corpus said...

True. But also see the more recent decision of Cay v The Queen [2010] VSCA 292 for discussion of what was meant in Ralphs' case.