1. The plea was heard on 19 July 2019.
2. The judge described the applicant's offending as 'most serious',[6] and set out the offending circumstances in some detail.
3. The applicant fraudulently obtained approximately $240,000 from Stephen Kwok, $189,000 from Tuan Hoang and Thi Thu Ha Le, $655,000 from Stephen Davis, $450,000 from Brian Jamieson, and $132,000 from Christopher McUtchen and Simone Evans.[7]
4. In each case the sums of money were transferred on the basis that they related to investments in automotive-related ventures which would produce a significant return on the capital placed with the applicant via one of his companies.
5. In most cases the victims made a series of payments to the applicant; all were made upon representations made by him as to the viability of the particular 'investment'. The principal victim of his frauds was Mr Stephen Davis, a lawyer whom the applicant had met through a mutual acquaintance.
6. On 5 December 2016,[8] Mr Davis invested $75,000 to purchase Porsche car parts under the pretence that it would yield 30 per cent return in three months.[9]
7. In July of the following year, Mr Davis was induced to pay $350,000 to purchase Porsche car parts which were to be sold in Australia at a significant profit.[10]
8. In the same month, the applicant persuaded Mr Davis to part with $40,000 for a share in a chauffeur business which the applicant asserted would return a ten per cent profit. Shortly afterwards, Mr Davis was induced to pay $90,000 towards the purchase of a new Porsche, which did not exist.[11] Finally, in August 2017, the applicant induced Mr Davis to contribute $100,000 towards an investment in magnetic car phone charger cables - again no such arrangement existed.[12]
9. Despite requests by Mr Davis for repayment, the applicant provided a farrago of lies as to when some of the monies would be paid.
10. The judge set out the facts underpinning each charge which essentially involved a similar modus operandi to that employed by the applicant in obtaining funds from Mr Davis. It is not necessary to go into the detail of the other transactions, other than to say they all bore a similar hallmark of baseless representations of high return investments to persons that the applicant had befriended.
11. Her Honour noted that each of the victims of the applicant's multiple frauds had suffered in different ways. Each suffered financially and had undergone stress and anxiety as a result of the losses they sustained. Some suffered more than others. In particular, Mr Davis, who suffered physically and emotionally due to the financial stress that was caused by his significant losses.[13] He has had to sell investment properties and 'nearly lost [his] home'. Her Honour summarised the effects as follows:

These are the very real and devastating effects that you have had on the lives of your victims, Mr Kenyeres, with your offending. It is of great concern that I note that in a number of cases, the perception of the victims was that you knew very well as to how taking their money would affect them and their families but you callously went ahead anyway.[14]

1. The judge remarked that the applicant's methods of obtaining the funds was not overly sophisticated in itself and it was inevitable he would be found out; however, the deceptions were protracted and for very large sums of money from complainants that considered him to be a friend.[15] Her Honour described this significant breach of trust in the relationship as an aggravating feature of the applicant's offending.[16] We agree with that characterisation.
2. Her Honour found that there was no impairment of the applicant's mental capacity at the time of offending and his moral culpability was described as very high.[17]
3. A significant discount was allowed by the judge for the applicant's plea of guilty 'entered at a fairly early stage'.[18]
4. Her Honour could not discern any evidence of remorse for the circumstances of the victims as a result of his frauds.[19]
5. Overall, her Honour regarded the prospects of rehabilitation as being fairly good and placed minimal weight on specific deterrence and protection of the community.[20] However, the judge placed considerable weight on general deterrence.[21]
6. Her Honour noted that the applicant had no prior convictions, and this was his first time in custody.[22] However, in circumstances where the applicant used his good character to defraud others, her Honour expressed some caution about the prospects of rehabilitation.[23]
7. Her Honour gave some weight to the uncertainty of the applicant's extradition, and dubious prospects of return to this country.[24]
8. Importantly, in relation to the determination of these applications her Honour said that:

In sentencing I have factored in that you have been in custody for 131 days in respect of your extradition alone. While these days cannot be included as pre-sentence detention as such, I have taken them into account when applying the totality principle.

Totality is an important principle in your case and in sentencing you, I have been most mindful of it. I am also mindful of the fact that, like current sentencing practice, which I have also considered, the maximum penalty is but one matter to take into account when sentencing you, and is not a controlling factor, nor is it axiomatic that you are to be sentences [sic] to a greater penalty where you have committed a continuing criminal enterprise offence which has double the maximum penalty for an offence which is not a continuing criminal enterprise offence. Where I have sentenced you to a greater gaol term in respect of any of the continuing criminal enterprise charges, I make it clear that I have not taken this approach. Of course, the sum of money that you took in respect of any particular charge is the most relevant matter, as is the separate impact on each of the victims, and separate episodes of offending.

In sentencing you, I have taken the approach of imposing periods of imprisonment that I consider are appropriate in all the relevant circumstances in relation to each of the charges, and I have imposed levels of cumulation that I also consider are appropriate. However, I then stepped back and adjusted the levels of cumulation, to arrive at a sentence which does not offend the principle of totality in my view.[25]

1. The judge then imposed the sentences set out in the table at [2] above. Charge 6 is the base charge - the largest fraud, which was perpetrated on Mr Davis. The other charges (3, 7, 8 and 9) involving Mr Davis were to be served concurrently.

The hearing of the applications before this Court

1. At the commencement of the oral hearing, it was agreed by the parties that the question of the application for leave to appeal out of time could be determined at the same time as the application for leave to appeal.
2. The parties, during the course of the plea and the hearing of the applications in this Court, proceeded on the basis that the applicant had spent 131 days in immigration detention.[26]
3. The arguments of the applicant and the respondent can be stated succinctly. The applicant contended that, howsoever it was categorised by her Honour, the allowance for the time the applicant spent in custody as a result of immigration detention was inadequate and that the applicant was entitled to a greater discount on both the total effective sentence and the non-parole period. It was also faintly argued that the base sentence on count 6 was manifestly excessive.
4. The respondent contended that the sentence, when viewed holistically (and indeed individually), was entirely appropriate and that the allowance given for immigration detention time (referred to by her Honour) was appropriate.
5. During discussion, the bench raised with counsel for both parties the issue as to where and over what period of time the applicant has spent his immigration detention.
6. The Court asked that a post-hearing note be prepared setting out the times and places at which the applicant had been held in immigration detention.
7. It transpired that the calculation of the time spent in immigration detention by the applicant and provided to the judge and this Court was incorrect. In fact, the applicant was apprehended and placed in immigration detention on the immigration warrant on 21 March 2018 and remained in custody pursuant to that warrant to 29 October 2018 - a period of 222 days - as against the 131 days which her Honour and this Court (initially) was informed was the period of immigration detention.

1. It was accepted by both parties that the error in the calculation of the immigration detention time was of sufficient significance so as to constitute appellable error. So, this Court may, if persuaded, impose a sentence based on its own evaluation of the material considered by the trial judge - now with the correct figure as to the time spent in immigration detention.

The application for leave to appeal out of time

1. This Court has a broad discretion as to whether or not to grant an extension of time. The applicant carries the burden of persuading the Court that an extension ought to be granted.
2. In determining the application, the Court considers, amongst other factors, the actual length of the extension sought, the reasons for the delay, and the merits of the appeal.[27] The exercise of the discretion must always be informed by 'what the interests of justice require in the particular circumstances of the case'.[28]
3. The applicant was unrepresented, until shortly prior to these applications when he received pro bono assistance from the Bar's scheme. His explanations as to why he failed to lodge his application for leave to appeal turn mainly upon his inability to obtain advice whilst imprisoned, particularly during the time of the COVID-19 restrictions. There is limited force in this aspect of the application.
4. However, the error in the calculation of the time spent in immigration detention is significant. The prosecution accepts that the error reopens the sentencing discretion of this Court. The applicant should not be denied the opportunity to argue that his sentence was unjust on account of this mistake.
5. The applicant should be granted leave to appeal out of time.

Amended ground 1: the appropriate allowance for the time spent in immigration discretion

1. The respondent did not oppose the amendment to ground 1, sought in the Applicant's Note, and leave should be granted to amend in the form set out at [5] above.
2. As we have said the error in the trial judge's calculations came about solely as a result of misinformation in relation to the immigration detention time.
3. In our view (and putting aside any jurisprudential debate as to whether the immigration detention time falls within the totality principle or that espoused in R v Renzella),[29] her Honour's sentence on the material before her was unimpeachable and could not be disturbed on appeal. We would have imposed a similar if not identical period of imprisonment and non-parole period.
4. However, for practical purposes, the question is now whether any adjustment ought to be made to the sentence imposed by her Honour given that the period spent in immigration detention is some 90 days greater than that which her Honour took into account.
5. The principle of taking into account in the sentencing process a period of detention in custody for offences unrelated to the offending before the Court was stated by the Full Court in R v Renzella[30] and has come to be known colloquially as the Renzella discretion or Renzella time:

Section 18 does not exclude the discretion that this court exercised in Heaney's case. It applies only where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account.

It follows that the law expounded by Brooking JA in Heaney's case is, unsurprisingly, correct in principle and consistent with s 18. Where that section applies, presentence detention is to be reckoned as a period of imprisonment already served under the sentence, and a declaration made to that effect, unless the sentencing court or the court fixing a non‑parole period in respect of the sentence otherwise orders. Presentence detention to which s 18 does not apply is to be taken into account in the exercise of the court's discretion. It should ordinarily be taken into account at the first opportunity.[31]

1. Subsequently, the Renzella discretion has been applied on many occasions by this Court.[32]
2. In Buddle v The Queen,[33] this Court (Neave and Priest JJA) said of the principle and the exercise of the discretion:

There is no doubt that s 18 of the Sentencing Act 1991 does not apply to the present situation, so that if the applicant's detention for unrelated matters is to be taken into account in reduction of the present sentences, that must be because of the operation of common law principles. In El Waly, the Court (Neave and Weinberg JJA, and Bell AJA) observed:

• The relationship between s 18 of the Sentencing Act 1991 and the principles in Renzella can be summarised as follows:

  (a) Section 18 permits the period during which an offender is on remand for more than one set of offences at the same time to be declared as presentence detention when the offender is first sentenced. Although the period spent in remand must relate to the offences for which the offender is being sentenced, it is not necessary, as was previously the case, that the period relate only to those offences.

  (b) If an offender is detained on remand for one offence, while serving a sentence for another, s 18 does not apply to the period during which the offender was on remand.

  (c) The Renzella discretion permits a sentencing judge to take account of a period which the offender spent in custody which is unrelated to the offence for which the offender is currently being sentenced, even if that period is not covered by s 18.

  (d) The Renzella discretion was originally exercised in circumstances where, with hindsight, the offender should not have spent a period in custody for earlier alleged offences, because he or she has been acquitted of those offences, had the charges withdrawn, or the Crown has entered a nolle prosequi (a period often described as 'dead time'). As noted in Karpinski, the discretion has even been exercised in cases where the period on remand which the offender should not have served arose out of conduct unrelated to the offences for which the offender falls to be sentenced and occurred sometime in the distant past.

  (e) Where Renzella applies the court may take account of the whole period during which the offender was in custody, or some lesser period.

  • We would have thought that this case, where the appellant was on remand for the current offences, while at the same time serving a term of imprisonment for another offence which cannot be claimed as presentence detention under s 18, raises an issue of totality, rather than calling for the application of Renzella. We note however, that in Wheldon v R the Crown conceded that such a period should be treated as Renzella time. In Wheldon, the court accepted that concession.

1. Their Honours then went on to say, and relevant to this case:

To our mind, it does not much matter what label one affixes to her Honour's consideration of the detention which preceded the sentence for the current offences (whether it be the exercise of the Renzella discretion, or the application of the totality principle). The fact remains that, in a broad and practical way, the judge took the period of pre-sentence detention (so called) into account.[34]

1. Returning to this case, the following should be noted. First, the concession by the prosecution that the time in immigration detention was to be counted as falling within the Renzella discretion was properly made. Whilst the applicant may not have been 'imprisoned' he spent the time in custody in a jail with the consequent deprivation of his liberty. We agree that it falls squarely within the Renzella discretion.
2. Second, as was noted in Buddle, whether the time in detention falls within the Renzella discretion or the totality principle is simply a matter of labels. There is one underlying common feature - time spent in detention prior to sentence for unrelated offences (and therefore not within the scope of s 18 of the Sentencing Act) must be factored into the sentencing synthesis.
3. Third, there is a considerable difference (nearly double) between the time calculated by her Honour as part of her assessment of the totality allowance (or Renzella time) and that which should have been considered.
4. We do not accept the prosecution's submission that no variation from her Honour's sentence should be made.
5. There is a meaningful difference in terms of the Renzella time spent in detention, as opposed to that originally calculated by her Honour. This should be allowed for in the base sentence. The additional time spent in custody and now to be considered meant detention in a prison and separation from his wife and daughter - his daughter in particular is affected by their separation. The applicant is entitled to a further modest allowance for the additional time spent in custody and not factored into her Honour's sentence.
6. Whilst theoretically the sentencing discretion as a whole is reopened, this would be inappropriate given that the sentence imposed was otherwise impeccable and certainly not stern.
7. The proper course is to make a slight adjustment to the sentence imposed by the judge on the base charge and the non-parole period. We consider a period of two months should be allowed as a reduction on the base sentence as an additional discount under the Renzella discretion. Our intention is to reflect in a broad and practical way the additional custody referred to above.
8. The adjustment is reflected in the proposed orders below at [74].

1. In order to make out this ground, the applicant must demonstrate that the impugned sentence or sentences were wholly outside the range of sentences available to the sentencing judge in the proper exercise of his or her sentencing discretion.[35] It is insufficient to demonstrate that a sentence is heavy or stern. The sentence must bespeak some error in the exercise of the sentencing discretion.
2. Apart from the specific error in the calculation of Renzella time (dealt with under amended ground 1), this ground was faintly pressed by counsel - and rightly so. The sentence imposed by her Honour on the material before her both on charge 6 (which was the base sentence for all the frauds perpetrated upon Mr Davis) and cumulatively was well within the sentencing discretion and as we have said is not in any way heavy or stern. No error has been demonstrated.
3. This ground must be refused.

1. The following orders to the following effect should be made:
   • (1) The application for leave to appeal out of time is granted.
   • (2) The application for leave to amend ground 1 is granted.
   • (3) The application for leave to appeal against sentence on ground 1 is granted and the appeal against sentence is allowed.
   • (4) The application for leave to appeal on ground 2 is refused.
   • (5) In lieu of the sentence imposed by the County Court on Charge 6, the applicant is sentenced to 4 years and 10 months imprisonment as the base sentence.
   • (6) The total effective sentence is 7 years and 4 months imprisonment.
   • (7) In lieu of the period fixed by the County Court, a minimum term of 4 years and 10 months imprisonment must be served before the applicant is eligible for parole.
   • (8) All other orders made by the County Court are confirmed.
   • (9) It is declared that the period of 1577 days not including the date of sentence, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that declaration was made and its details.
   • (10) Pursuant to s 6AAA of the Sentencing Act 1991 it is declared that but for the applicant's plea of guilty the effective sentence would have been 9 years and 4 months with a non-parole period of 6 years and 10 months.
2. The table below shows the new sentence.

• Section 6AAA Statement:

• Total Effective Sentence of 9 years and 4 months.
• Non-Parole Period of 6 years and 10 months.

• Other Relevant Orders: 1577 days reckoned as pre-sentence detention.

1. Finally, we wish to express our thanks to Mr J Penny who appeared on behalf of the applicant via the Victorian Bar Pro Bono Assistance Scheme.

[1] Contrary to s 82 of the Crimes Act 1958.

[3] This description of the circumstances is drawn from the Summary of Prosecution Opening, which was tendered as Exhibit A on the applicant's plea.

[4] DPP v Kenyeres [2019] VCC 1316, [5] ('Reasons').

[26] Reasons [147] and see above at [40].

[27] Madafferi v The Queen [2017] VSCA 302, [11].

[29] (1997) 2 VR 88, 96 ('Renzella').

[31] Renzella (1997) 2 VR 88, [23]-[25] (emphasis added). The reference to 's 18' is to section 18 of the Sentencing Act 1991.

[32] See, eg, R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Chimirri [2003] VSCA 45; R v Wade [2005] VSCA 276; R v Evans [2005] VSCA 254; R v Giakoumogianakis [2005] VSCA 156; R v McMahon [2006] VSCA 240; R v Rosenow [2007] VSCA 265; Warwick v The Queen [2010] VSCA 166.

[33] [2014] VSCA 232, [42].

[35] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384, [89]; [2011] VSCA 157, quoted in Lim v The Queen [2019] VSCA 182, [60]; Begg v The Queen [2020] VSCA 183, [53]; R v Boaza [1999] VSCA 126, [42]; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3, [127]; [2010] VSCA 350.