Poursanidis v The Queen [2016] VSCA 164

1 On 9 November 2015, the appellant pleaded guilty in the County Court at Melbourne to a single charge of obtaining a financial advantage by deception. He was sentenced on 16 November 2015 to a term of seven years' imprisonment. A non-parole period of four years and six months was fixed.

2 Pursuant to leave granted by Priest JA on 16 March 2016, the appellant now appeals against that sentence. He relies upon a single ground of manifest excess.

3 The maximum sentence for obtaining a financial advantage by deception is ten years' imprisonment. A sentence of seven years on a ten year maximum, after a plea of guilty, will almost invariably invite careful scrutiny. It was for that reason that Priest JA granted leave to appeal.

4 Having read the written case filed on behalf of the appellant, and having now heard Mr Tehan's eloquent submissions in support of his client, I am firmly of the view that this sentence, though undoubtedly stern, was within range. Accordingly, I would dismiss the appeal.

5 The charge to which the appellant pleaded guilty was drafted upon a 'course of conduct' basis. This represents a new, and somewhat novel, basis upon which a sentence can be imposed.

6 The 'course of conduct' provisions were introduced by ss 11, 12, 13 and 17 of the Crimes Amendment (Sexual Offences and other matters) Act 2014. These provisions amended both the Criminal Procedure Act 2009 and the Sentencing Act 1991.

7 S 4A(1) of the Criminal Procedure Act relevantly defines 'course of conduct charge' as a 'charge for a relevant offence that involves more than one incident of the offence.' Ss 4A(2) and (3) elaborate upon the definition, and set out the conditions under which such a charge can be laid.

8 S 5(2F) of the Sentencing Act provides:

In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge (within the meaning of clause 4A of Schedule 1 to the Criminal Procedure Act 2009) a court -

(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and

(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.

If a jury finds a person guilty of a course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.

9 These provisions may well give rise to particular difficulties where an accused is charged with a 'course of conduct' offence, and pleads not guilty. There is no need, for present purposes, to enlarge upon that point.

10 The Crown submitted that as a result of the introduction of these new provisions, the maximum penalty for the offence in question should no longer be viewed merely as a 'yardstick' by which to assess the gravity of the offending.[1] In other words, it would be perfectly reasonable, in a case such as the present, to impose a higher sentence than would otherwise be appropriate because of the sheer number of individual offences falling within the ambit of the charge as laid. The fact that there might be mitigating circumstances present would not prevent the Court, in such a case, from imposing the maximum term under these new provisions.

11 In my view, and contrary to that submission, this new form of offending should be governed by orthodox sentencing principles. That means that close attention must be given to the maximum sentence available for the offence charged. The maximum remains a 'yardstick' by which the gravity of the offending is to be assessed, even though the offence itself is charged in 'course of conduct' terms.

12 Thus the fact that there may have been dozens, or as in the present case, even hundreds of individual acts of deception does not mean that the maximum sentence available for the charge of obtaining a financial advantage by deception, ten years' imprisonment, could legitimately be imposed where there were present significant mitigating circumstances.

13 The question whether a ten year maximum affords adequate scope for punishing conduct as grave as that perpetrated by the appellant in this matter is one that should be considered with great care by the Crown when determining whether to negotiate a plea on the basis of a single charge of 'course of conduct' offending.[2] Of course, one consequence of negotiating a plea on that basis is that the Crown loses the opportunity to have the offender sentenced as a 'continuing criminal enterprise' offender.[3]

14 The appellant's offending took place between 2003 to 2010. It involved 541 separate and distinct acts of dishonesty. There was but one victim, a retired builder named Paul Knight. He had the misfortune to go into business with the appellant.

15 The two men first met in 1990. Mr Knight, together with the appellant's brother, had built a factory in Granville, New South Wales. Between 1988 and 1998, the factory was leased to Fleet Repairs, a panel beating shop. The appellant worked at Fleet Repairs as an assessor. Mr Knight first became acquainted with the appellant while attending as landlord of the premises. They later became friends.

16 In early 2000, the appellant approached Mr Knight regarding a business deal involving the purchase and sale of a second-hand car. Mr Knight supplied half the cost of the purchase and repair. It appears that the transaction was successful and generated a small profit to Mr Knight. Between 2002 and 2003, six cars were similarly purchased and sold, one at a time. On each occasion, once again, Mr Knight made a small profit.

17 From 2003 onwards, Mr Knight continued providing funds towards the purchase of second-hand cars. He never, at any stage, received any money from these deals. In fact no cars were purchased or repaired. None were sold on behalf of the business.

18 At this early stage, the appellant deceived Mr Knight into making some 29 deposits into the appellant's bank account. Mr Knight would periodically ask about the whereabouts of these funds, and about his share of the profits of the sales. The appellant told him that he was using the profits to help purchase a number of cars in furtherance of a larger and more lucrative deal.

19 In 2004, the appellant told Mr Knight that he intended to purchase a number of new cars which, he proposed to sell to the Department of Justice in Victoria. He represented to Mr Knight that he had a cousin working for the Department who had a contact with the officers responsible for purchasing vehicles. Needless to say, none of this was true.

20 Mr Knight was defrauded, in total, of the sum of $4,929,800. He lost his home, as well as a holiday home, and a commercial property. Indeed, he lost his entire life savings. He was made bankrupt and left destitute. He now depends for his livelihood upon handouts from members of his family, and close friends. There is no prospect of his ever recovering any of the stolen funds. His relationship with his wife has been badly affected. His health has deteriorated.

21 The appellant was arrested in September 2013. When interviewed by police he declined to answer questions. His plea of guilty was proffered at a very late stage, about a month before the commencement of the trial.

22 The sentencing judge characterised the appellant's behaviour as egregious. She said that he had preyed upon the naivety and trust of Mr Knight, an elderly friend. She labelled the appellant a 'con man' who took advantage of Mr Knight to 'fleece him' of his hard earned assets.

23 The judge said that this was a case that called for stern punishment. She characterised the offending as very serious. She said that it was attended by a degree of cunning, though not a great deal of sophistication. She noted that appellant had a gambling habit throughout the entire period of the offending. There was no evidence that he had lived a lavish lifestyle, but the money that he had obtained had been used for his own purposes. These included investing in at least one failed restaurant business.

24 As the sentencing judge said, there was a real need in a case such as this to emphasise general deterrence, as well as denunciation. There were few mitigating factors. There was no suggestion that the appellant had ever suffered from any form of mental disorder that could mitigate the gravity of what he did. Not surprisingly, perhaps, by the time he came to be sentenced, he was suffering from an adjustment disorder, with mixed anxiety and depressed mood, no doubt brought about by the fact of his impending incarceration.

25 Dealing with matters personal, the appellant was 52 years of age when sentenced. He had no prior convictions. However, as her Honour noted, this is a common feature of white collar offending.

26 The sentencing judge observed that this matter had resolved following negotiations. She said that she had regard to utility of the plea of guilty, but observed that it had come late. She said that, having regard to that plea, she had discounted the sentence that would otherwise have been imposed.

27 Her Honour found limited remorse, and said that she took that into account. She noted the appellant's personal history and background. He is twice divorced and has three adult daughters from his first marriage. Those daughters continue to support him. The appellant himself had been supporting his elderly parents, both of whom were seriously ill, for the two years prior to sentencing.

28 Her Honour was not prepared to find that family hardship, in the sense necessary to constitute a mitigating factor, was made out. However, she took into

account the appellant's obvious anguish at being unable to continue looking after his parents.

29 Plainly, the appellant's conduct involved a massive breach of trust. It extended over a number of years. It had devastating consequences so far as the victim was concerned.

30 In my opinion, it cannot be said that a sentence of seven years' imprisonment, for offending of this gravity, fell outside the range reasonably available to the sentencing judge.[4] That is so, even granting that the maximum penalty for this offence was ten years' imprisonment. The non-parole period of four years and six months was, if anything, moderate.

[1] Markarian v R [2005] HCA 25; (2005) 228 CLR 357.

[2] The principles of sentencing for a 'course of conduct' offence may be similar, in some respects, to those involved in sentencing for what are generally termed 'rolled-up counts'. See DPP v Felton (2007) 6 VR 214_; R v Galletta_ [2007] VSCA 177. There may not be the need, however, to disaggregate individual sentences in the way required for the imposition of an aggregate sentence. With regard to the relationship between 'rolled up counts' and 'continuing criminal enterprise' offences, see: R v Shannon [2005] VSCA 143; Yusuf v R [2010] VSCA 266.

[3] Sentencing Act 1991 Part 2B.

[4] See for example Yusuf v R [2010] VSCA 266, where a sentence of twelve years' imprisonment with a non-parole period of nine years withstood challenge on appeal, in circumstances where the offender faced multiple charges rather than a single count, and there were some aggravating features not present in this case. However, the amount defrauded, about $ 7 million, was not all that far apart from the almost $5 million defrauded in the present case.