R v Sivov [2000] VSCA 7

Court of Appeal (Vic)|2000-02-03|Before: WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.

The applicant, Kosta Sivov, who was represented by senior counsel at his plea but appeared unrepresented before us, applies for leave to appeal against a total sentence of four years' imprisonment with a non-parole period of three years imposed upon him by the County Court on 13 counts of obtaining financial advantage by deception and one count of furnishing false information with a view to gain. These counts, contained in two presentments, each carried a maximum sentence of 10 years' imprisonment, except count 3 on what has been referred to as the first presentment, which in fact carried a maximum sentence of 7-and-a-half years' imprisonment. This is a matter to which I will return briefly.

The applicant admitted prior convictions, one of which, in September 1994, was, I think, rightly considered by the judge as being of direct relevance as it was a conviction for attempting to obtain financial advantage by deception. He was placed on a community-based order for 12 months, which order was in force when at least four of the offences the subject of these proceedings were committed. The applicant was dealt with for breach of the community-based order in January 1996 by a conviction and fine.

The offences for which the applicant was sentenced in relation to the two presentments occurred between 21 December 1994 and September 1996.

In his reasons for sentence the learned judge referred to the circumstances in which the offences were committed on the basis of a statement of facts provided by the Crown with which the defence in substance agreed, save for minor discrepancies having regard to the whole of the amounts involved, and one particular discrepancy involving the sum of $19,575, the question being whether that was in fact repaid.

For the purpose of this application I think it is sufficient to describe the offences as applications for credit either in the form of a credit card facility or a leasing facility. Six counts related to the Australian Guarantee Corporation and seven counts to the Westpac Bank. The pattern of offending was similar in that false statements were made and false documentary evidence was provided in support. The motive was clearly to obtain credit by these false representations. The total value of credit so obtained was approximately $630,000 over the whole period. His Honour thought that the total amount was in the vicinity of $900,000 but that is incorrect. However, no point has been taken in relation to that discrepancy in the total amount of credit, and, in the circumstances of this case, having regard to the large amount, the period involved and the number of counts, understandably so, because that would hardly make any difference to the ultimate sentence here imposed. His Honour thought that the amount lost was in the order of $260,000.

The disputed question as to the $19,575 was one about which no evidence was given, and in those circumstances the judge was not prepared to conclude that the loan was repaid, in the absence of any evidence from the applicant.

The applicant had an accomplice, a Mrs Darcy, whose statement the judge relied on as demonstrating how the fraud was effected.

After examining the whole of the material and the method employed, his Honour described the offences as "sophisticated, devious and persistent". He found that the applicant recruited the accomplice and bore the greater part of the responsibility.

His Honour considered the applicant's background and personal circumstances in which these offences were committed. He referred to the fact that the applicant, now aged 36 years, left school at Form 4, completed a two-year course in electronics and then went into business. He worked hard, moved from electronics into car hire, and in 1992, with financial assistance from his family, bought into an airline charter business which collapsed taking with it the applicant's parents' entire savings and their home. This was a financial disaster which no doubt affected the parents and the applicant, and it was relied upon on the plea as precipitating the applicant's involvement in dishonest transactions. His Honour appears to have accepted from Mr Healey's report that "in the face of devastating financial loss, Kosta engaged in illegal procedures in an attempt to retrieve something for his family". His Honour appears to have accepted the applicant's history of financial problems and the collapse of the business as a clue to his offending.

His Honour also found a number of other mitigating factors which he mentioned. They included, first, the early pleas of guilty which saved two trials of considerable duration. He was, however, not persuaded that the plea of guilty, apart from providing the other benefit, indicated genuinely felt remorse. Secondly, his Honour found that there was the significant contribution by the applicant to the Macedonian community in church life and in supporting and encouraging sport by young people in that community. Next there was the fact that the applicant was a loyal and loving son, part of a close-knit family which continued to be supportive of him.

The application for leave to appeal against sentence before us was originally based on three grounds. Ground 1 complained of an error by the judge in the imposition of the non-parole period, which was said to be insufficiently low. The second ground dealt with two specific findings. They related to the level of monetary loss in some detail and also the repossession of a motor car from a Mr Robertson and, of course, the $19,000 amount had been involved in that ground as well. The third ground complained generally that the sentence overall is manifestly excessive.

No complaint was originally made about the sentences on individual counts or the extent of orders for cumulation. The original grounds attacked the sentence as a whole as well as the non-parole period. Before us, the applicant submitted a number of matters in writing in support of his application, and, apart from dealing with some of the matters which were the subject of the original grounds and developing those points, he added two matters in respect of which the Court has given leave to amend the grounds. The first of these relates to an error, which it is conceded by the Crown, and clearly correctly, the judge made in describing the maximum sentence in respect of one of the counts (count 3) on the first presentment as carrying a maximum of 10 years instead of 7-and-a-half, as I have already indicated. The second ground relates to an error which the applicant contended was made by the judge in cumulating penalties on counts on the second presentment upon counts on the first presentment. I think it is convenient to deal with those two added grounds first.

As to the error in the maximum penalty available, I think it is important to note, as was said in R. v. RJE, a 1999 case in this Court, that not every error about the available maximum penalty necessarily reflects a sentencing error. That depends, of course, on the nature of the error as to the total penalty available and the circumstances of the case. In this case the judge was sentencing on two presentments involving 14 counts. An overall sentence had to be achieved to reflect the total criminality of the applicant. Clearly a large maximum sentence was available overall. His Honour imposed a sentence of four months in respect of the count where the error was between maximum penalties of 10 and 7-and-a-half years. In those sentences, as was said in RJE, and as I think it is correct to say in this case, the error, although made, was of no material significance.

As to the other ground (ground 5 now), in my view there is no error in cumulation of counts on one presentment upon counts on the other when the judge is dealing with a number of counts, albeit preferred in two presentments. That was done as a matter of convenience because, had there been pleas of not guilty, the two presentments may well have had to be heard separately. The judge's role is to consider the criminality as a whole on the basis of the counts with which he has to deal and not by reference to presentments. I see no error in that respect.

As to the other matters, in so far as the applicant contends that there have been errors in the conclusions about the total amount actually lost, I think, again, in the context of the amounts involved, the total criminality in this case over the whole period and the total amount involved, even had the amounts been found in favour of the applicant's contentions, that, in my view, cannot be said to have made any difference to the total disposition. However, again, I see no error in the judge's consideration of these discrepancies, given the fact that no evidence was given, and the arguments that were placed before him.

The main ground, I think, and the main basis of the applicant's complaint is concerned with the sentence overall and particularly the length of the non-parole period. When one looks at the manner in which his Honour categorised the offending, which in my view was open to him, it is difficult to see how a sentence of four years is manifestly excessive. This is particularly so in the light of the period over which the fraud took place, its persistence and the fact of the previous conviction. As to the non-parole period, in addition to the matters previously raised, Mr Sivov, the applicant before us this morning, referred to some additional matters. The first was the judge's finding of a limited degree of remorse. He said to us that it was difficult to see how more remorse could have been expressed, having regard to the approach he took to the transactions and institutions, the admissions to the police and pleas of guilty. In my opinion the judge gave effect to all those matters when in his reasons for sentence he spoke of the pleas as having been made, saving the cost of two trials, and the early willingness to discuss pleading guilty prior to committal. The only reservation which his Honour had was the degree to which the plea indicated genuinely felt remorse. I do not think that, with that qualification, which the judge was entitled to make in the circumstances, it is possible to say that his Honour did not give the full benefit to the applicant of the co-operation with the police, his general attitude in relation to these matters and the early pleas of guilty, as his Honour stated.

I have already dealt with the other matters which the applicant raised again today, that is, the discrepancies in the total amount outstanding and the amount of loss, by holding that I do not think it could be argued that those discrepancies, even if they had been considered favourably to the applicant, could have made a difference in the prolonged, repeated fraud involving some $630,000.

In all, I am afraid, in my view the grounds are not made out, because it was clearly open to his Honour to make the findings he did. In a carefully considered judgment and after hearing a significant plea and evidence, his Honour made his conclusions which he stated and, I think, considered all the relevant material in favour of the applicant. Nor do I think it is possible in those circumstances, and with the prior conviction, to say that the sentence overall is manifestly excessive.

Mr Sivov, I agree with Mr Justice Hampel that there is no real basis upon which this Court can interfere with his Honour's sentencing discretion and that the application will have to be dismissed.

Our function, as I think I have explained to you already, is quite different from the function which has been exercised by the sentencing judge. The sentencing judge's function in a case such as this is not an easy one. He has to endeavour to fix penalties for the various offences to which you pleaded guilty which he in his wisdom and discretion believes are appropriate. In exercising that discretion he has to take into account a variety of factors, some of which are adverse to you, some of which are in your favour. There is nothing that I can see in the reasons which his Honour has given for doing what he did which suggests to me that he has committed a specific error in coming to the conclusions to which he came, nor in my view can it be said that the sentence which he ultimately imposed is so great as to warrant interference by this Court in the exercise of its function.

There was a good deal to be said on your behalf as to why it was that you committed these offences. Mr Justice Hampel has referred to them. There is no doubt in my mind that his Honour was motivated to impose what seem to me to be fairly lenient sentences for these types of crime by the pressure which led you to commit them. There are many people who have engaged in persistent frauds like these who have received greater sentences than the sentences imposed upon you by his Honour. I am, therefore, unable to say that what his Honour has done is beyond the range of sentences available to him.

For the reasons that Mr Justice Hampel has given, there also seems to me to be no basis for the complaint of specific errors which you have raised today. The misstatement by his Honour of the maximum period in respect of count 3 on the Westpac presentment seems to me to be immaterial, having regard both to the degree of differential between the maximum as he thought it to be and the true maximum of 7-and-a-half years, and to the very small part which the sentence imposed on that count played in the total sentence. Secondly, there is no basis for contending that his Honour made specific errors in the way in which he cumulated sentences imposed on some counts in one presentment upon sentences imposed on another count in another presentment. His Honour had to deal with all the matters which were before him at the time when you stood for sentence. His obligation was to determine whether the whole or any part of one sentence in the plethora of counts before him ought to be cumulated upon the sentence on any other count. That is an obligation which is specifically imposed upon him by the Sentencing Act.

In those circumstances I can see no basis upon which this Court can intervene in the exercise of his Honour's discretion. Do you understand that?

I agree that this application must be dismissed, for the reasons given by the other members of the Court.

I wish only to comment on ground 5 added this morning by leave. The burden of the ground as expressed relates to the cumulation of sentences on counts in the AGC presentment upon the sentence on a count in the Westpac presentment. In the written outline which the applicant provided to the Court the burden seems to me to be expressed a little differently and to relate to the cumulation of a sentence on one count upon sentences upon more than one other count. Either way, in my view, there is nothing in the ground. In particular, the directions for cumulation as recorded in the records of the County Court, that is, in the associate's endorsement of the presentment and in the quadruplicate, are expressed in quite frequently used and, as I think, unexceptionable terms.

The ultimate consequence of that, Mr Sivov, is that your application for leave to appeal against sentence is dismissed.

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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