R v Pandevski & Pandevska [2007] VSCA 84

R v Pandevski & Pandevska [2007] VSCA 84 | Case summary | Zoe

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2 Slobodan Pandevski pleaded guilty to eight counts of obtaining financial advantage by deception, contrary to s 82(1) of the Crimes Act 1958, and to 16 counts of attempting to obtain financial advantage by deception, contrary to s 321M of the Crimes Act. The maximum penalty for a completed offence is 10 years' imprisonment and for an attempt is 5 years' imprisonment. However, the provisions of Part 2B of the Sentencing Act applied because he committed three or more continuing criminal enterprise offences and, by s 6I of the Act, the maximum term of imprisonment is thereby double. Accordingly, the maximum penalty on such offences was 10 years' for the attempts and 20 years' imprisonment for the completed offence.

3 The total effective sentence imposed on Slobodan Pandevski was five years and ten months' imprisonment and her Honour ordered that he serve two years and six months before being eligible for parole. Her Honour made a declaration that he had served 417 days in custody. Sentence was imposed on 5 March 2007 and accordingly, as at today, the applicant will be required to serve about another 13 months before being eligible for parole.

4 The applicant applies for leave to appeal against sentence, and he also makes application for bail pending his appeal.

5 Vaska Pandevska, the co-accused, does not apply for bail, but she also makes application for leave to appeal her sentence. I will deal with her separately.

6 Dealing first with the application for leave to appeal by Slobodan Pandevski, the primary complaint is that the sentences were manifestly excessive, but a discrete submission was made with respect to the hardship to the children of the applicant which has arisen by virtue of the imprisonment of both parents.

7 At the time of these offences, the two applicants were married and living together, but the relationship has now ended. There were two children, a daughter who is now almost 13 years old, and a son who is 18 years old. The son has diabetes, which requires twice daily insulin injections and frequent blood testing. Somewhat dated material was placed before the sentencing judge from an endocrinologist, stating that as at November 2003 it was "simply not possible for a young adolescent to manage their diabetes totally alone". The son has now completed his VCE but he is not yet in employment. We have before us on the bail application an affidavit from the son, but that material was not before her Honour. For the purpose of the application for leave to appeal, strictly speaking, the Court should confine itself to that which was considered by her Honour, but, as a matter of fairness and also convenience, I have considered the material in the affidavit when considering this first application.

8 Evidence was led before her Honour about the likely hardship to the children if both parents were imprisoned. Her Honour gave careful consideration to the submissions made with respect to the children and correctly applied the law as stated in the decision of the Court of Appeal in Carmody;[1] see, too, R v Holland[2] and R v Jaross.[3] Her Honour found that the circumstance with respect to the son was not exceptional, and in my view that finding is appropriate. As to the daughter, evidence was given that there would be no adult family member to care for her if both members of the family were immediately imprisoned. In her sentencing reasons, her Honour said of that evidence that "this forecast stands in stark contrast to the extended family response following your initial arrest and imprisonment". It was submitted that the evidence was uncontradicted and her Honour was bound to have accepted it. In my view the onus was on the applicant to satisfy her Honour as to the contentions concerning the welfare of the children and her Honour was not persuaded by that evidence, and it was open to her to so conclude. The mere fact that it was not contradicted did not mean that it was thereby bound to be accepted by her Honour when the evidence was that the extended family was quite large and had supported the daughter at an earlier time.

9 In any event, her Honour was right to make the point that joint offenders such as these who commit offences over an extended period cannot expect that imprisonment will be avoided by virtue of the impact of their offending on their children. Only in exceptional circumstances would that situation pertain, and this is not such a case, as her Honour found. In my view her Honour's discretion has not been shown to have been wrongly exercised with respect to the question of hardship.

10 As to the sentence generally, it was submitted that the penalty imposed gave undue weight to the financial advantage which was sought to be gained, or which was actually gained. Her Honour gave exceptionally detailed and careful reasons for sentencing, which ran to some 35 pages. Among the factors which she considered - and I can think of none which she did not consider, and carefully so - her Honour had regard to the Court of Appeal decision in Arundell[4], in recognising that the main determinant of a sentence is the offence itself, rather than the monetary value attached to the offence; but she recognised quite rightly that the monetary value represented by the offence is none the less relevant. In this case, that was certainly so. In the case of Slobodan Pandevski, the aggregate quantum of financial advantage obtained was $308,598, but her Honour accepted that the actual loss was in the region of $52,000. The property had been recovered. Her Honour noted that the aggregate quantum involved in the attempts was $950,646.

11 Her Honour found that Slobodan Pandevski's conduct spanned a four-year period. Slobodan Pandevski was convicted on count 1 of an offence for which his wife was found not guilty, namely, that on 12 January 2000 he obtained financial advantage by deception by obtaining a MasterCard with a limit of $10,000 by virtue of a false representation. Then, in 2003, there was a ten-months' spree of offending involving multiple victims and continuous acts of deception, including extensive false documentation and a significant degree of skill and sophisticated planning. Her Honour rejected the contentions that the offending was committed out of stress or depression or to support his family whilst he was unemployed. Her Honour noted that the offending involved luxury motor vehicles and high value goods.

12 The applicant had no prior convictions and pleaded guilty to the offences. Her Honour accepted that he was unlikely to re-offend and had favourable prospects of rehabilitation. It was submitted to her that in those circumstances the time already spent in custody should have been sufficient and that the balance of any further sentence should have been suspended.

13 In my view, her Honour gave careful consideration to all of the matters advanced in mitigation, including matters which were set out in the report of consultant psychologist, Carla Lechner, which was tendered on behalf of Slobodan Pandevski. Her Honour did not accept the findings that the applicant was suffering depression and anxiety and invited counsel to provide further evidence if that was to be relied on. No further evidence was called.

14 We have had regard to a table of sentences for similar offences helpfully produced by counsel for the co-accused. In that chart, eight offences of a similar kind but involving what is described as a breach of trust were listed and brief details given of them, and four offences which did not contain the element of a breach of trust. In addition to that material, I have had regard to the Sentencing Snapshot No 18 produced by the Sentencing Advisory Counsel with respect to the trends for obtaining a financial advantage by deception in higher courts between 2001-2002 to 2005-2006. In that publication it is recorded as to total effective sentences of imprisonment over that period, 80 people were given a total effective sentence of imprisonment and, as to the number of people sentenced between 2001-2006, the length of total effective sentences ranged from two months to ten years, while the median total effective length of imprisonment was three years, meaning that half of the total effective sentence lengths were below three years and half were above. The most common total effective imprisonment length was three years. As to non-parole periods, they ranged from four months to seven years and six months, with a median length of non-parole period one year and eight months. From 2001-2002 to 2005-2006 the average length of total effective sentence for all people ranged from two years and ten months in 2003-2004 to three years and six months in 2005-2006. Over the same period, the average length of non-parole periods ranged from one year five months in 2002-2003 to two years four months in 2004-2006.

15 The medians there shown are not at odds with the submissions that were made as to where this case should fall within the sentencing range. It is, however, important to bear in mind with respect to illustrations by way of reports and extracts of previous cases, and also that which is summarised in the Sentencing Snapshot, that in this case before us it must be regarded as being offending of a character which would place it in the high range as to the seriousness and the persistence of the offending which is involved. That, of course, would not be true of the great majority of the cases which are referred to in the statistics. Likewise, it must be borne in mind that, when considering such statistics, particular mitigating factors such as pleas of guilty, remorse and other such factors will arise in some of those cases and not in others. None the less, that information provides useful broad assistance in assessing the question of whether a sentence in any given case is clearly outside the range of appropriate sentences or is arguably so.

16 Having had regard to that material, I am none the less not persuaded that in this case the sentences imposed on Slobodan Pandevski were reasonably arguable as having been manifestly excessive. Having regard to the circumstances here which her Honour detailed very carefully in her considered reasons for sentence, in my view the offending was of such a character and of such persistence that, notwithstanding the mitigating factors which were called in aid, the sentence is within range in all the circumstances and, it not being reasonably arguable to the contrary, in my view leave to appeal against sentence should be refused.

17 I turn then to the application for bail pending appeal. Bail will only be granted pending appeal where there are exceptional circumstances.[5] In this case, two factors are highlighted: the impact of imprisonment on the children and the prospect that a substantial portion of the sentence will be served before the appeal against sentence could be heard. The conclusion that the grounds of appeal are not reasonably arguable is important in the consideration of the application for bail, but it is not determinative. The applicant has a right to apply to a court of three for leave to appeal against sentence and he may do so.

18 I deal first with the question of hardship to the children. An affidavit from the son of Slobodan Pandevski deposes that he is 18 years of age, having been born on 22 October 1988, and that his sister was born on 29 May 1994 and is thus aged 12 years and will turn 13 at the end of this month. He deposes that since the sentencing of his parents on 5 March he has been looking after his sister at his father's home in Lalor. The sister attends secondary school and is in year 7, and he drives her to and from school. He is in receipt of Youth Allowance and family tax benefit payments which total $350 per week, but he is due to transfer to New Start Allowance. He does not depose as to how much New Start Allowance will be, but he is paying weekly rental of $147.92 and describes the "tight financial situation that that places he and his sister in".

19 He refers to his requirement for daily injections and said that when he starts New Start he will seek work, and, if he does obtain work, then there will be no one to take his sister to and from school. He gives no indication as to whether there is any public transport to or from the school. The son deposes that he completed year 12 last year and had planned to start business this year, importing clothing or shoes, and he was also interested in a business course. His work plans and study plans were on hold because of the present situation. He said he had no social life; he looks after his sister on weekends. He deposes simply that "there is no one else who is prepared to look after us". He says that the sentencing had caused friction amongst family members and "I have had little or no support from family or friends".

20 I do not doubt that the imprisonment of both parents has caused difficulty for the children, but I am not persuaded that the circumstances described constitute exceptional circumstances so as to justify a grant of bail pending appeal. That conclusion would be so, in my opinion, even if leave to appeal had been granted in this case. It is an unfortunate fact that sentencing of offenders has a drastic impact on family members. Whilst it is relatively uncommon for both parents to be sentenced at the same time, it does occur, and that fact is not of itself exceptional. In many cases the impact of imprisonment is particularly severe on children, but as sad and unfortunate as is the plight of these children, I regret to say that this is not a case that falls into that category, in my view.

21 As to the alternative contention, the applicant was sentenced on 5 March 2007. It is submitted on his behalf that he may remain in custody for some 15 months before the appeal could be determined. That is not so, in that if the applicant exercises his right to have his application for leave to appeal dealt with by a court of three, a hearing date in July would be likely to be obtained. The fact that he would by then have served a significant portion of his non-parole period is a relevant factor to take into account, but, as is pointed out by the Court of Appeal in Zoudi[6], the substantial or complete expiry of the non-parole period is only one of the factors to be considered. One other factor that must be considered is whether the appeal has reasonable prospects of success, and, as I have said, it does not. As was made clear in Zoudi, and the courts have frequently held, convictions and sentences should not be regarded as provisional only. There is a presumption which operates in favour of the validity of those orders.

22 I am not persuaded that the circumstances here are truly exceptional and justify a grant of bail. Accordingly, in my opinion, that application should be refused.

23 I turn to the application for leave to appeal of Vaska Pandevska. Ms Pandevska was 41 years of age at the time of sentence. She had no prior convictions. In her case the offending occurred over a ten-month period only, in the period from 18 January 2003 to 9 October 2003. In her case the quantum of financial advantage obtained was $314,120 and for the attempts $725,046 was involved. She was sentenced to a total effective sentence of six years and five months' imprisonment with a non-parole period of three years.

24 The complaint that the sentence was manifestly excessive was advanced by emphasising that the offending occupied only a ten-month period, that more than half of the charges involved failed attempts, that she has good prospects for rehabilitation, and that five of the completed offences involved motor cars which were later recovered.

25 As I have said, counsel for Ms Pandevska provided a chart of recent sentences to which she referred, submitting that the sentences imposed in this case were in the high range and should be regarded as being reasonably arguably outside the range of sentences appropriate. But, as I said with respect to the use of statistics and other sentences in the case of her husband, it is important to bear in mind the individual circumstances of offences, although that material is useful in gaining some idea as to an appropriate range. It is particularly important to keep that in mind in the case of this applicant, because here, although it might be said there was not the element of trust which was involved in some other sentencing cases to which we were referred, this was a case in which there were no pleas of guilty, where her Honour found that there was no remorse, and where the offending constituted in many cases continuing criminal enterprise offences, in which the maximum penalty was doubled, thus emphasising the attitude of Parliament towards offending of this character. Furthermore, the nature of the offending in this case, as for the husband, places this within the most serious range for offending of this character of dishonesty. Taking all of those factors into account, in my view, I am not persuaded by use of that material that that, in itself, demonstrates that this sentence is outside the range.

26 The learned sentencing judge, as I have previously said, gave very great attention to all of the relevant sentencing principles in her lengthy sentencing judgment. She noted that Vaska Pandevska maintained her denial of involvement in these offences and did not thereby gain the benefit of pleas of guilty. Once again, as I have said, many of the offences fell into the category of continuing criminal enterprises, where the maximum penalty was doubled. Her Honour noted that the offences were very well planned and executed, involved false driver's licences and other false documentation and multiple false identities were employed. It was truly, as her Honour said, deception on a grand scale, in which eleven financial organisations were deceived and eighteen others were attempted to be deceived. Vaska Pandevska utilised fifteen separate identities and her husband six.

27 Whilst her Honour found that there was a very low risk of Slobodan Pandevski re-offending, she was not so sure with respect to Vaska Pandevska. She noted that there was no evidence that Vaska Pandevska had insight into her offending behaviour and there was no sign of remorse. She regarded her as being of some risk to the community by comparison with her husband, although she accepted that there were good prospects of rehabilitation. It was submitted that there was an inconsistency in finding good prospects of rehabilitation, whilst at the same time finding that there was some risk of re-offending. In my view, those findings can stand together. Her Honour was simply balancing the two questions and in neither case was it possible to make an unqualified statement. A person can have good prospects of rehabilitation but at the same time there might remain a risk that the person would re-offend, thus dashing her otherwise good prospects of rehabilitation.

28 It was contended that her Honour gave insufficient weight to the factor of delay. Upon application by the Crown, the case was taken out of the criminal trials list in January 2006 and was then listed in early 2007. During that period the applicant's husband negotiated a plea of guilty. The applicant went to trial and was acquitted on six out of the 29 counts. The twelve months' delay involved further investigation by police, in part involving the offences of the applicant Vaska Pandevska. Counsel submitted that the applicant was none the less entitled to have the delay taken into account as a factor in sentencing, or at least given more weight than it was. Counsel for Ms Pandevska submitted that her Honour failed to give that appropriate weight because she inappropriately had regard to the fact that Vaska Pandevska pleaded not guilty and denied the charges. As her Honour noted, the factor of delay is relevant in two respects. First, the person has the charge hanging over their head and, secondly, it may have a bearing on the factor of rehabilitation, in particular where the offender has been released on bail and taken steps in the meantime towards rehabilitation. Her Honour did not regard the delay as unduly excessive, in that it was necessary for police to conduct further investigations in that period and that negotiations were taking place, at least with her husband and, it had been anticipated, possibly by this applicant. Her Honour recognised that Vaska Pandevska was entitled to plead not guilty, but she merely noted that the fact that she failed to cooperate with police or make any concessions did not reduce the delay. Nor did her Honour find that the delay had damaged the prospects for rehabilitation. She did take delay into account but did not do so to the same extent as she did for Slobodan Pandevski, as she was entitled to do.

29 It was contended that in formulating individual sentences her Honour gave too much weight to the monetary value involved in each count, whereas each offence relevantly involved the same conduct. As I said when dealing with the husband's application, her Honour recognised the danger of misusing the value involved in the offences in that way, and in my opinion she was entitled to take the view, as she apparently did, that the factor of greed involved in the motor vehicle purchase offences was greater than that in the other offences and ought appropriately be so reflected.

30 In my view, it is not reasonably arguable that she made the error which has been attributed to her in determining the individual sentences, or indeed, in my view, orders as to cumulation. In my view, her Honour's sentencing remarks show that she was very careful in the process that she adopted when considering the individual sentences, the total effective sentence and the orders as to cumulation. Her approach, in my view, could not be faulted. The non-parole period in particular for both offenders was exceptionally merciful.

31 I am not persuaded that any error has occurred in the sentencing process as is suggested on the part of this applicant, nor do I consider that it is reasonably arguable that the sentences were manifestly excessive. I would refuse the application for leave.

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32 I agree. I, too, would refuse each application for leave to appeal against sentence and the application for bail. I agree with the reasons of Eames JA.

33 I want to say something directly to Mr Pandevski and to his son. It is important to explain that what the Court of Appeal does on a sentencing appeal is quite different from what the sentencing judge does. For this purpose, I shall adapt what Winneke P said in Sivov.[7]

34 The sentencing judge's function in a case such as this is not an easy one. She had to endeavour to fix penalties for the various offences which, in her wisdom and in her judgment and discretion, she believed were appropriate penalties. In exercising that discretion, the sentencing judge had to take into account a variety of factors, some of which were against you and some of which were in your favour.

35 This Court does not decide what sentence we would have imposed if we had been considering the question for the first time. Rather, we review what the sentencing judge did. We cannot overturn a sentencing decision unless it can be shown that there was a specific mistake made in the approach adopted or unless, looking at the sentence in all the circumstances, the Court is persuaded that the sentencing judge has gone seriously wrong.

36 Like Eames JA, I can see nothing in what the Judge said in arriving at her decision which suggests any specific mistake. It is obvious that on particular matters different judges might come to slightly different views. That is the nature of the sentencing process. That is why it is done by judges, not by machines. But, again, we do not interfere unless we are satisfied that a conclusion has been reached that no judge doing the job properly could have come to. There is no conclusion arrived at by her Honour which falls into that category.

37 I want to endorse what Eames JA has said about the quality of these sentencing reasons. Her Honour is to be commended, in my respectful opinion, on the conscientious approach to the sentencing task which her reasons demonstrate. Someone in your position, Mr Pandevski, has the satisfaction, such as it is, of knowing that every matter advanced on your behalf before the judge was carefully considered and weighed in the balance. That is what you were entitled to expect and the reasons should leave you in no doubt that that is exactly what occurred. Her Honour referred to and applied all the relevant sentencing principles and she dealt in turn with each of the specific matters raised on your behalf.

38 The argument that the sentence was too high - or in legal terms, "manifestly excessive" - is a very difficult argument to make out in this Court. There is a range within which judges can differ as to what, taking all the circumstances into account, is the appropriate sentence for the offences before the court. The argument that this was an excessive sentence could only have succeeded if it was possible to show that no judge, acting reasonably on the facts of your case, could have sentenced you to this term of imprisonment or, in other words, that this was not a proper exercise of the sentencing discretion.

39 For the reasons Eames JA has given, that has not been established. Like Eames JA, I consider that it is not reasonably arguable that this was outside the available sentencing range, such that we could say this was an improper exercise of the sentencing discretion. It is important, as I pointed out to counsel, that there was nothing in the circumstances which mitigated the culpability of the conduct. It is true that the offending lacked the aggravating feature of involving a position of trust, but that is really beside the point. The argument advanced on the plea, about seeking to ensure a more comfortable lifestyle for the son because of his diabetes, was in my opinion rightly described by her Honour as fanciful and was rightly rejected.

40 I also wish to acknowledge the exemplary work by counsel for Ms Pandevska in preparing a table of sentences, with accompanying details, in other dishonesty cases. Information in that form responds to concerns this Court has expressed in recent times, that arguments about sentencing range need to be accompanied by reference to cases which help to identify the relevant limits of the range. Obviously enough, a tabulation of that kind will only be one ingredient in the Court's consideration, but it is nevertheless of very considerable assistance.

41 On examination, there are quite important differences between this case and some of those in the table. In Sivov,[8] for example, the Court was dealing only with a 10-year maximum whereas, as Eames JA has pointed out, the judge here was dealing with a 20-year maximum for a number of the offences and 10 years for a number of the attempts. In Shannon,[9] there was a plea of guilty which was treated as a very significant mitigating factor. Mr Pandevski did plead guilty (unlike Ms Pandevska) but, even so, there is a significant differential between the sentences in two cases. It could not be said, looking at those two cases, that this sentence was outside the range reasonably open to the judge.

42 Lastly, I wish to reinforce what I said in argument about the position of the applicants' 18-year-old son. The difficulty for a young man on the verge of adult life - to say nothing of his sister who is on the verge of teenage years - in having both parents absent is difficult to over-estimate. On my reading of the son's affidavit, he is greatly to be commended for his competence and courage in acting as the carer for his sister. That is something of which his parents should be duly proud.

43 At the same time, as Eames JA has said, this does not begin to be "exceptional circumstances" hardship of the kind to which the cases refer. The deprivation of care and company which family members suffer is the inevitable consequence of imprisonment. Sadly for these children, it is the consequence of the very serious criminal behaviour in which their parents engaged, and did so calculatedly, though for reasons which remain something of a mystery. There must be something quite exceptional, above and beyond that inevitable consequence, before impact on family becomes a relevant consideration. Like Eames JA, I consider that her Honour was entitled to conclude that there were no exceptional circumstances of the requisite kind.

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