R v Denysenko [1999] VSCA 106

Court of Appeal (Vic)|1999-07-30|Before: CHARLES and CALLAWAY, JJ.A. and HAMPEL, A.J.A.

The applicant seeks leave to appeal against those sentences on the following grounds:

"1. That the head sentence and the non-parole period infringe the principle of totality.

2. That the sentences on each count, the head sentence and the non-parole period infringe the principle of parity.

Before turning to counsel's submissions, I shall say something briefly about the five offences to which the applicant pleaded guilty and the sentences that are said to give rise to disparity.

In April 1993 Rex Philip, using the alias of John Barker of Barker & Nathan, told an employee of Courtney Patterson that he was an accountant representing C.G.M. Tiles and that his client wanted to purchase a Honda Integra and obtain finance for the purchase. The vehicle was to be purchased under the name of Ronald Joseph Greg. Courtney Patterson later received a fax purporting to confirm the terms of Greg's employment with C.G.M. Tiles. A Honda Integra was collected from their premises on 20th April 1993 and later sighted by police in the applicant's driveway. The next day the applicant contacted an associate and asked him whether he was aware of any motor car dealers who were interested in purchasing a white 1991 Honda Integra for $21,000. The associate called several dealers but the best offer he was able to obtain was $17,000. On 25th April 1993 the applicant contacted another associate, who agreed to purchase the car on behalf of his brother-in-law for $17,500. The representations about Greg's employment made in order to obtain the finance were false. They were the foundation for count 1 on presentment ZA374A. The case against the applicant was that he acted in concert with Philip.

He also acted in concert with Philip in relation to count 2. Again in April 1993, the applicant went to a motel in St Kilda and informed the receptionist, Samantha Robinson, that he was going to assist one Alistair McLaughlin to purchase a car, using the motel as McLaughlin's place of employment even though he did not work there. McLaughlin would use the name Brown for the purposes of the transaction. Philip, as John Barker of Barker & Nathan, then contacted an employee of a Holden dealership and told him that one of his clients wanted to obtain finance to purchase a vehicle. He supplied false details in relation to Brown. On 4th May 1993 the applicant informed Robinson that McLaughlin would take possession of the car that day and requested her to complete a letter on the motel's letterhead showing Brown's employment details. Robinson did so. She also assisted the applicant to forge a driver's licence. Eventually a Holden Calais was delivered at the motel on 7th May 1993. The applicant arranged for it to be sold for $23,000. The proceeds of the sale were deposited into a bank account in the name of the applicant's son.

Count 3 related to another transaction in 1993 involving Robinson. A loan facility for the purchase of a Toyota Celica was obtained by false representations that Robinson was purchasing it for her own use, that she would meet the payments due on the vehicle and that the contents of two letters on the motel's letterhead were true and correct. Philip was not involved in the transaction.

Presentment Z767 related to events earlier that year. On 22nd January the applicant, using the name John Stevens, telephoned a BMW dealership in Brisbane. He said that he wanted to buy a BMW 535. There were further telephone conversations in late January and early February. In the course of applying for finance as part of the proposed transaction the applicant falsely represented his name, date of birth, place of residence, place of employment, employer's business, assets, liabilities and salary package and that a group certificate was that of Stevens. The finance was approved on the basis of those false representations and documentary material provided in support of them. The applicant took possession of a BMW, valued at $118,556, on 5th February 1993.

Possession was granted pursuant to the terms of a BMW luxury lease, which obliged the applicant to keep possession of the car and not to sell it. On 17th March 1993 the applicant purported to sell the vehicle to one David Lawrence of Tract Interiors. An application was made on behalf of Tract Interiors to register the car in Victoria. It was found by police hidden at a store at Kinglake of which Lawrence was the proprietor. The foregoing facts were the foundation for counts 8 and 9.

David Lawrence was found guilty of handling the vehicle the subject of counts 8 and 9. On 27th June 1996 he was sentenced to six months' imprisonment. The conviction was subsequently quashed and a nolle prosequi entered. Robinson pleaded guilty in the Magistrates' Court to two charges of obtaining property by deception. McLaughlin pleaded guilty in the Magistrates' Court to one charge of obtaining a financial advantage by deception, together with unrelated charges involving credit card fraud. They were both placed on community based orders for 12 months. One Paul Lawrence, whom I have not mentioned but who was referred to by counsel on the plea, also received a community based order for 12 months. He was a co-accused with Philip, but not in relation to either of the offences where the applicant and Philip acted in concert. I shall refer to the sentences imposed on Philip later.

Mr. Grace argued ground 2 first. The principle is not in doubt. It is explained in such cases as Lowe v. R. [1984] HCA 46; (1984) 154 C.L.R. 606 and R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402. A sentence may be within the range but warrant appellate intervention because the difference between it and the sentence imposed on a co-offender is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done. The only comparison in the present case that might satisfy those criteria is the comparison between two of the sentences imposed on the applicant and two of those imposed on Philip. Counsel said little about David Lawrence on the plea and, no doubt as a consequence, the learned judge did not refer to him at all in his sentencing remarks. Handling is sometimes, not always, more serious than theft; but there is insufficient material before this Court to say that the sentence imposed on count 9 involved disparity with the sentence imposed on David Lawrence. Paul Lawrence was not a co-offender with the applicant. Robinson and McLaughlin were first offenders playing relatively minor roles in comparison with his. That is reflected in their community based dispositions. Their sentences cannot usefully be compared with the sentences imposed on the applicant.

Philip pleaded guilty to three counts of obtaining property by deception. He was sentenced to six months' imprisonment on count 1, six months' imprisonment on count 2 and three months' imprisonment on count 3. It was directed, in effect, that two months of the sentence imposed on count 2 and one month on the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 9 months' imprisonment. That sentence was directed to be served concurrently with a sentence of four years' imprisonment that he was then undergoing in South Australia, which related to 12 offences of dishonesty involving illegal dealings in property in the order of several hundred thousand dollars. The offences were committed whilst Philip was on bail for the Victorian offences. The non-parole period applicable to the South Australian sentence was 21 months.

Counts 2 and 3 in Philip's case corresponded with counts 1 and 2 on presentment ZA374A. I shall call them the first and second counts. The following comparison can then be made:

(a) The sentences imposed on the first count were the same, namely six months' imprisonment, of which two months were to be served cumulatively upon other sentences.

(b) The sentence imposed on the applicant on the second count was three times as severe as the sentence imposed on Philip: it was three times the length and three months, rather than one, were directed to be served cumulatively.

(c) The first and second counts contributed five months to the applicant's total effective sentence of 19 months, of which 10 months were directed to be served cumulatively upon the sentence he was then undergoing. The sentences imposed on Philip were directed to be served concurrently with the sentence he was already undergoing.

In my opinion the difference in (b) above does show appellable disparity. The learned judge, who had also sentenced Philip, agreed generally with a submission that the applicant's and Philip's culpability in relation to the first and second counts should be considered as about the same. In my opinion the applicant's involvement was somewhat greater (cf. the sentencing remarks in relation to Philip at p.6) but the differences between the two offenders do not explain a sentence three times more severe in the applicant's case. It is true that he had pleaded guilty at a later stage than Philip, but it was conceded that his plea, admittedly to all five offences, saved a very considerable amount of court time and expense and evinced a degree of remorse. His criminal history was more serious than Philip's but his last court appearance for offences of dishonesty was in 1987, when he was released on a bond. To find another offence of dishonesty one has to go back to 1972.

That conclusion makes it unnecessary for me to express an opinion on the difference in (c) above or the other grounds of appeal as such, for, in the circumstances of this case, the whole sentencing disposition is undone and, should the other members of the Court agree, we are obliged to re-sentence the applicant.

There is also no need to express a concluded view on the submissions that were made to us about Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295. Much attention was focused on the arithmetical comparison in the joint judgment of Dawson and Gaudron, JJ. at 303-304, but it was conceded in reply that that is simply a means of comparing the extent of the concurrency or cumulation that is directed or allowed in the case of each prisoner. It does not mean that a similar exercise has to be undertaken, or is appropriate, in every case: cf. point 8 at 339 in the judgment of Kirby, J. It is similarly inexpedient for present purposes to say much more about s.5(2AA)(a) of the Sentencing Act than was said in R. v. Paramboukis [1998] 2 V.R. 194 at 197. There is plainly nothing wrong in comparing eligibility for parole, for that involves no prediction or assumption about executive action.

The circumstances of the five offences were described earlier in this judgment. See also the comparison of the applicant and Philip in [14]. Prominent among the circumstances of mitigation are the applicant's pleas of guilty, the remorse they are conceded to evince and the learned judge's finding (which we should accept) that the applicant does have some prospect of rehabilitation. It is evidenced by, among other things, a favourable report on his conduct in prison and his work with young drug offenders in that environment. The sentences we impose will have effect from 15th December 1998: see R. v. Jennings [1998] VSCA 69. (It was not submitted that we should have regard to the fact that the sentences on presentment ZA374A were imposed four days earlier. The directions for cumulation were not given, and the non-parole period was not fixed, until the later date.) We must therefore have regard to the sentence of 33 months' imprisonment, with a non-parole period of 24 months, that the applicant was then undergoing. We must also have regard to the sentences imposed on Philip, at least in relation to the first and second counts, and to the fact that they, together with the sentence imposed on the other count to which Philip pleaded guilty, were permitted to be served concurrently with his South Australian sentence.

Taking all those matters into account, I would substitute a sentence of five months' imprisonment on count 2 of presentment ZA374A but I would confirm the sentences imposed on the other counts. I would also confirm the directions for cumulation, except that I would direct that only two months of the sentence imposed on count 2 be served cumulatively. That makes a total effective sentence of 18 months' imprisonment on counts 1, 2 and 3 of presentment ZA374A and counts 8 and 9 of presentment Z767.

The more difficult question is how much, if any, of that total effective sentence should be served cumulatively upon the existing sentence of 33 months. That sentence was, as the learned judge said, imposed for quite separate offences. In the circumstances of this case, it would be an affront to justice if there were not some cumulation, provided that the principle of totality is not thereby infringed. See R. v. Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12th September 1996) at 14-15 and R. v. Mantini [1998] 3 V.R. 340 at 348-351. The offences committed by Philip in South Australia were also quite distinct from those for which Philip was sentenced in Victoria, but it does not follow that the applicant is entitled to total concurrency too. The principle of parity does not apply to all five offences and Philip's personal circumstances, as revealed by the plea and sentencing remarks in his case, were different from those of the applicant. The sentencing objective of rehabilitation was best served by his return to South Australia. Subject to [21] below, all that parity requires is a lesser measure of cumulation than would otherwise have been appropriate.

With a view to a combined sentence that does not infringe the principle of totality and makes the allowance for parity to which I have just referred, I would propose that nine months of the total effective sentence of 18 months' imprisonment on counts 1, 2 and 3 of presentment ZA374A and counts 8 and 9 of presentment Z767 be served cumulatively upon the sentence of 33 months. The aggregate head sentence would therefore be 42 months' imprisonment.

The original non-parole period of 24 months would have expired in August this year. The effect of his Honour's orders was to delay the applicant's eligibility for parole until March 2000. See R. v. Browne-Kerr (unreported, Court of Appeal, 24th July 1997). The effect of Philip's Victorian and South Australian sentences being made wholly concurrent was that there was no delay in his eligibility for parole or house detention. That, too, is to be taken into account, conformably with the observations of Dawson and Gaudron, JJ. in Postiglione's Case at 302, and Kirby, J. at 342-343. The non-parole period this Court fixes must not be so short as to undermine the sentencing objectives sought to be achieved by the head sentence: see R. v. V.Z. [1998] VSCA 32 at [3], [15], [18] and [22]. By reason of s.14(2)(b) of the Sentencing Act, it cannot be less than eight months. By reason of parity it should be somewhat less than would otherwise have been the case. Weighing these and other conflicting considerations, I would propose a new single non-parole period of 12 months which, as previously mentioned, would have effect from 15th December 1998.

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