CDirector of Public Prosecutions v Bezhenar

[2022] VCC 1569

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00427
CR-22-00428

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

YEVGENI BEZHENAR and ALEXANDER BEZHENAR

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JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2022
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	CDPP v Bezhenar & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1569

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – make false Commonwealth documents – use false Commonwealth documents – plea of guilty – significant delay - parity

Legislation Cited:      Criminal Code 1995 (Cth) s145.1(5), s144.1(5)

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Mr Peter Botros	Office of Public Prosecutions (Cth)
For the Accused Yevgeni Bezhenar	Mr Rishi Nathwani	Furstenberg Law
For the Accused  Alexander Bezhenar	Mr Avi Furstenberg	Furstenberg Law

HER HONOUR:

Introduction

1Yevgeni Bezhenar and Alexander Bezhenar, you have each pleaded guilty to one joint charge of using a false Commonwealth document contrary to section 145.1(5) of the Criminal Code (Cth) (charge 1), and two joint charges of making a false Commonwealth document contrary to section 144.1(5) of the Criminal Code (Cth) (charges 3 and 7).

2Yevgeni Bezhenar, you have additionally pleaded guilty to four charges of making a false Commonwealth document contrary to section 144.1(5) of the Criminal Code (Cth) (charges 2, 4, 8 and 9).

3Alexander Bezhenar, you have additionally pleaded guilty to one charge of using a false document contrary to section 145.1(5) of the Criminal Code (Cth) (charge 5), and one charge of making a false document contrary to section 144.1(5) of the Criminal Code (Cth) (charge 6).

4Each offence is punishable by a maximum penalty of 10 years’ imprisonment and a fine of up to $66,000 for charges 1 and 2; $102,000 for charges 3, 4 and 5; and $108,000 for charges 6, 7, 8 and 9.

Circumstances of the Offending

5The full circumstances of your offending are set out in the Prosecution Opening for Plea which was tendered on the plea as Exhibit A. However, in shorter compass, in the period of the offending (between 2011 and 2016) the two of you operated an accounting firm named Halifax Business Consulting (‘HBC’). You, Yevegeni Bezhenar, were the director of this business, whilst you, Alexander Bezhenar, were an accountant in the business.

6From approximately the middle of 2011, you, Yevgeni Bezhenar, commissioned  Eugene Vinarsky – who was a graphic designer – to create several false, non-Commonwealth documents such as payslips and loan documents with the intention that they be passed off by you as genuine documents.

Charge 1 – Yevgeni and Alexander Bezhenar

7Then, in October 2011, the two of you formed an agreement to use false Commonwealth documents, made by Mr Vinarsky, with the intention of dishonestly inducing a bank to accept them as genuine, and thereby dishonestly obtaining a gain in the form of a bank loan. The false Commonwealth documents in question were business activity statements for The Trustee for Halifax Trust (‘the Trust) of which HBC is the trustee.

8On 26 October 2011, you, Yevgeni Bezhenar, sent Alexander Bezhenar a series of documents to be forwarded to Eugene Vinarsky for him to create a series of false versions of those documents. There were four genuine Business Activity Statements for the Trust, together with four copies of those documents with handwritten markings amending the genuine figures. The amendments inflated the figures for sales, salary, and GST on sales.

9On 27 October 2011 you, Alexander Bezhenar forwarded the documents to Mr Vinarsky and he forged the documents as directed. He then returned the forged documents to both of you, by email, on 6 November 2011.

10Between 6 November 2011 and 20 February 2012, the two of you corresponded with Westpac to arrange for a business loan for HBC as the trustee of the Trust. As part of the application process, the false Commonwealth documents created by Mr Vinarsky were provided by you to Westpac. Further, you both signed the loan application and indemnity agreement to obtain the loan from Westpac.

11On 20 February 2012, you, Yevgeni Bezhenar, received a letter from Westpac in your capacity as Director of HBC advising that your request for finance had been approved. The total loan amount was $356,000. This conduct constitutes charge 1 on the indictment.

Charge 2 – Yevgeni Bezhenar

12On or around, July 2012 you, Yevgeni Bezhenar, again commissioned Mr Vinarsky to make false Commonwealth documents, this time with the intention that another person would use them to dishonestly induce a bank to accept them as genuine, and thereby dishonestly obtain a gain in the form of a bank loan.

13On 28 July 2012, you commissioned Mr Vinarsky to forge documents purporting to be genuine ATO Notices of Assessment for a client of HBC, Rotislav Yerusalimsky. You forwarded a copy of a genuine Notice of Assessment in your own name for 2011 with handwritten amendments to the name and figures.

14On 29 July 2012, Mr Vinarsky sent an email to both of you stating that he had produced a copy that was combined from three sources. He attached a document which was a Notice of Assessment for Rotislav Yerusalimsky for the 2012 tax year which had been digitally manipulated to show the names and figures that matched those on the document which he had been sent by you, Yevgeni Bezhenar, the previous day.

15On 30 July 2012, Mr Vinarsky sent a further email to you, Yevgeni Bezhenar, attaching two additional documents, one of which was the same document he had sent to you on 29 July 2012 but with the tax file number removed, and the second being a Notice of Assessment for Mr Yerusalimsky for the 2011 tax year which had been digitally manipulated to show different figures than were submitted to the ATO. Each of the documents showed inflated figures for taxable income and tax payable and showed refunds being payable by the ATO rather than amounts owing to the ATO as per the original documents. This conduct constitutes the subject matter of charge 2.

16The forged documents were subsequently used by a financial broker named Alexander Marchinovskiy in a loan application made to Advantedge Financial Services on behalf of Mr Yerusalimsky and his wife Margarita. On 10 August 2012, the loan to Mr Yerusalimsky in the amount of $770,000 was approved by Advantedge. Later that same day, Mr Yerusalimsky sent an email to both of you and Mr Marchinovskiy thanking you all for your efforts.

Charge 3 – Yevgeni and Alexander Bezhenar

17In around June and July 2013, you both again agreed to commission Mr Vinarsky to make false Commonwealth documents, being notices of assessment for Mr Marchinovskiy in his capacity as a public officer of Almarex Financial Solutions Pty Ltd, with the dishonest intention that they would be used to induce a bank to accept them as genuine, and thereby dishonestly obtain a gain in the form of a bank loan.

18In 2012, Mr Marchinovskiy used HBC to submit both his personal income tax return and the company tax returns for Almarex. In the process, HBC also obtained a copy of Mr Marchinovskiy’s 2011 income tax return and company tax return. The ATO issued a notice of assessment for each income tax return that was submitted for Mr Marchinovskiy.

19On 19 June 2013, a HBC employee sent an email to you, Yevgeni Bezhenar, which had four documents attached to it. These documents were two false income tax returns for Mr Marchinovskiy for the years 2011 and 2012 respectively, and two false company tax returns for Almarex for the years 2011 and 2012 respectively. The false 2011 company tax return showed a taxable income of $25,333 instead of $10,633 whilst the false company tax return for 2012 showed a taxable income of $30,268 instead of $12,727.

20On 17 July 2013 you, Alexander Bezhenar, then sent a document to Mr Vinarsky which contained copies of two notices of assessment in the name of Alexander Tsintsiper and Ellana Moseshvili with handwritten amendments to names and figures. The handwritten information accorded with the information contained in the false income tax returns for Mr Marchinovskiy. Later that same day, Mr Vinarsky created two false Notices of Assessment for Mr Marchinovskiy using the handwritten details provided by you. The taxable income in each of the forged Notices of Assessment was substantially elevated by comparison with the genuine documents. This conduct constitutes the subject matter of charge 3.

21Subsequently, between 19 June and 24 July 2013, each of the false Notices of Assessment and Income Tax Returns in the name of Mr Marchinovskiy and the false company tax returns for Almarex were all provided to Mr Marchinovskiy. On 24 July 2013, Mr Marchinovskiy submitted the false documents, together with a letter provided by you, Yevgeni Bezhenar, to Advantedge in support of a loan application.  On 2 August 2013, Advantedge approved the loan to Mr Marchinovskiy for $670,000.

Charge 4 – Yevgeni Bezhenar and Charge 5 – Alexander Bezhenar

22In around March 2015 you, Yevgeni Bezhenar, commissioned your cousin Vova Bezhenar to make false Commonwealth documents, being Notices of Assessment for Alexander Bezhenar, with the dishonest intention that they would be used to induce a bank to accept them as genuine and thereby dishonestly obtain a gain in the form of a bank loan. You, Alexander Bezhenar, then used one of the documents with the same intent.

23On 18 March 2015 you, Yevgeni Bezhenar sent an email to your cousin asking her to urgently ‘do this one’. On 19 March 2015, Vova replied and forwarded two attachments to you, being false Notice of Assessments in Alexander Bezhenar’s name for the 2013 and 2014 financial years. The 2013 Notice showed a significantly inflated figure for income for that year, whilst the 2014 Notice pre-dated any Notice of Assessment having been issued by the ATO. You, Yevgeni Bezhenar then forwarded those documents to you, Alexander Bezhenar. This conduct constitutes charge 4.

24Sometime between 18 March 2015 and 20 March 2015, the 2014 false Notice of Assessment was provided to Mr Marchinovskiy. He then lodged an application on behalf of you, Alexander Bezhenar, and your wife for a variation of your home loan with Advantedge, attaching that document to the application. On 12 April 2015, you and your wife signed paperwork with Advantedge confirming your income, and Advantedge approved the loan for a $144,000 increase to your existing loan. This conduct constitutes charge 5.

Charge 6 – Alexander Bezhenar

25In around August 2015 you, Alexander Bezhenar commissioned Vova to make false Commonwealth documents, being Notices of Assessment for Rotislav Yerusalimsky, with the dishonest intention that they would be used to induce a bank to accept them as genuine, and thereby dishonestly obtain a gain in the form of a bank loan.

26On 27 August 2015, you sent an email to Vova requesting that she ‘do this one’. The email had a document attached to it which contained a copy of two Notices of Assessment in the name of Vladimir Makogon with handwritten amendments to names and figures. Later that same day, Vova replied to your email attaching two false Notices of Assessment for the 2014 and 2015 financial year.  The 2014 Notice showed a significantly inflated figure for income for that year, whilst the 2015 Notice pre-dated any Notice of Assessment having been issued by the ATO.

27On 27 August 2015, you also sent an email to Mr Yerusalimsky attaching two false income tax returns containing information which correlated with the false Notices of Assessment. You then sent these documents to Mr Marchinovskiy on 31 August 2015. Shortly thereafter you sent a further email to Vova asking for some amendments to be made to the Notices of Assessment. She then sent two further false Commonwealth documents to you, being a false Notice of Assessment for the 2013 financial year, and an amended false Notice of Assessment for the 2014 financial year.  This conduct constitutes charge 6.

Charge 7 – Yevgeni and Alexander Bezhenar

28In around October 2015, the two of you agreed to commission Vova to make false Commonwealth documents, being Notices of Assessment for Jelena Vlasova, with the dishonest intention that they would be used to induce a bank to accept them as genuine and thereby dishonestly obtain a gain in the form of a bank loan.

29On 8 October 2015, Vova sent you, Alexander Bezhenar, an email with an attachment which contained a false Notice of Assessment for the 2015 financial year in the name of Jelena Vlasova showing a taxable income of $122,567 in circumstances where Ms Vlasova had not yet lodged an income tax return for that year.  It is alleged that this document was prepared at your request. Later that day, Vova sent you an amended version of the document with a changed street address.

30On 8 October 2015 you, Yevgeni Bezhenar, prepared a report on Ms Vlasova’s financial position which stated, consistently with the false Notice of Assessment that her income was $122,567. You, Alexander Bezhenar, then forwarded the false Notice of Assessment and a false income tax return, correlating with the false Notice of Assessment, to Mr Marchinovskiy. This conduct by each of you constitutes charge 7.

31On 9 October 2015, Mr Marchinovskiy submitted a loan application to ANZ on behalf of Ms Vlasova which appended the false Notice of Assessment, false Income Tax Return, and the report on Ms Vlasova’s financial position. On 23 October 2015, ANZ approved the $200,000 loan and the loan was subsequently paid to Ms Vlasova. Subsequently on 10 May 2016 you, Alexander Bezhenar, prepared a genuine income tax return for Ms Vlasova for the 2015 financial year which reported her taxable income as $19,414, rather than $122,567.

Charge 8 – Yevgeni Bezhenar

32In around January and February 2016 you, Yevgeni Bezhenar commissioned a HBC employee – Ramina Saifullina – to make false Commonwealth documents, being Notices of Assessment for Leonid and Polina Khait who were clients of HBC, with the dishonest intention that the documents would be used to induce a bank to accept them as genuine, and thereby dishonestly obtain a gain in the form of a bank loan.

33Leonid Khait is the beneficiary of two trusts – the Leopol Trust and the Russian Treasures Trust. You, Yevgeni Bezhenar, prepared and lodged Trust Tax Returns for each trust in the 2014 and 2015 financial years, as well as personal income tax returns for Leonid and Polina for those years.

34On 18 and 19 January 2016, you contacted a mortgage broker, Tony Selak, seeking assistance in obtaining a loan for the Khaits. On 20 January 2016, Mr Selak wrote to you and Alexander stating that he had met with Polina and asking that you forward the income tax returns and Notices of Assessment for Polina and Leonid as well as financial documents for their businesses. You then forwarded Mr Selak’s email to Ms Saifullina and said ‘please see me and I explain’.

35On 25 January 2016, Ms Saifullina created a series of false documents being four false Notices of Assessments, with four correlating false income tax returns for Polina and Leonid for the 2014 and 2015 financial years, and four false trust tax returns for the Leopol Trust and the Russian Treasures Trust for the 2014 and 2015 financial years. In each case the documents substantially inflated the relevant entity’s income.

36On 3 February 2016, you corresponded with Mr Selak about the details of the proposed loan. Sometime between 25 January 2016 and 9 February 2016, the false documents prepared by Ms Saifullina were provided to Mr Selak. This conduct constitutes charge 8.

37On 9 February 2016, Mr Selak submitted a loan application to ANZ on behalf of the Khaits attaching the false documents created by Ms Saifullina. You subsequently provided further financial documentation – being balance sheets for the trusts – which contained details matching the relevant details in the false Commonwealth documents created by Ms Saifullina when Mr Selak advised that the loan had been conditionally approved but further information was needed about the trusts. On 29 February 2016, ANZ approved the loan in the amount of $940,000 to the Khaits.

Charge 9 – Yevgeni Bezhenar

38In around February 2016 you, Yevgeni Bezhenar, again commissioned Ms Saifullina to make false Commonwealth documents being Notices of Assessment for David and Florianna Shirinov, who were clients of HBC, with the dishonest intention that they would be used to induce a bank to accept them as genuine, and thereby dishonestly obtain a gain in the form of a bank loan.

39On 8 February 2016, you contacted Mr Selak to arrange a loan for the Shirinovs. Two days later, you attended a meeting with Mr Selak and the Shirinovs to discuss the loan. Following the meeting on 10 February 2016 you instructed Ms Saifullina to make false documents for the Shirinovs.

40On 11 February 2016, Ms Saifullina sent an email to you which attached three false Commonwealth documents being false Notices of Assessment for David Shirinov for the 2015 financial year, and for Florianna Shirinov for the 2014 and 2015 financial year. Additionally, there were three corresponding false income tax returns attached to the email. These documents contained significantly inflated income figures for both David and Florianna Shirinov.

41On 12 February you forwarded this email and its attachments to Mr Selak and Florianna Shirinov. You also sent a further email to Ms Shirinov attaching two payslips in David’s name headed ‘Russian Treasures’ which stated that his annual salary was $84,000. This conduct constitutes charge 9.

42On 15 February 2016, the Shirinovs signed an application for a loan with ANZ and approximately one week later, Mr Selak submitted the loan application to ANZ with the false documents including the Notices of Assessment, income tax returns and payslips being appended in support of the application. ANZ subsequently approved a home loan in the amount of $630,000 on 24 February 2016 and an investment loan for $358,000 on 17 March 2016.

Investigation, Charges, and Resolution of Matter

43Your offending came to light as part of an ATO audit into the validity of certain tax incentives. On 4 October 2017 the ATO executed search warrants at the HBC office and the home of Mr Vinarsky, amongst other places, and documents were seized. Mr Vinarsky participated in a record of interview on that day.

44A brief of evidence in this matter was referred to the Commonwealth Director of Public Prosecutions on 19 October 2018. Each of you were subsequently charged on 26 October 2021, with neither of you participating in a record of interview. The matter had its first listing in court on 9 December 2021 with a Filing Hearing, and resolved very quickly thereafter with each of you indicating an intention to plead guilty to the current charges at committal mention on 22 March 2022.

Victim Impact

45I note that no Victim Impact Statements were tendered on the plea.  I further note that in respect of each of the offences to which each of you have pleaded guilty, the impact of the offending was not measured by any loss to the financial institutions concerned. Rather, the impact arose from the assumption of a risk by those institutions which was different in nature, and in most circumstances substantially different in nature, to that which they thought they were assuming.

Plea of Guilty, Co-Operation with Authorities and Contrition

46Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the court must take into account the fact of the plea, the timing of the plea and the degree to which the fact and timing of the plea resulted in any benefit to the community or any victim of or witness to the offence. Further, s16A(2)(f) requires me to take into account your degree of contrition for your offending.

47Your pleas of guilty, which were entered at the very earliest opportunity, are valuable for a number of reasons. Firstly, they have saved all of the witnesses from having to give evidence in this case. Secondly, your pleas facilitate the course of justice and have utilitarian value. That utilitarian value is further enhanced by the timing of your pleas, which have been entered during the pandemic and in circumstances where COVID-19 has had an unprecedented impact on the efficient running of the criminal justice system. Thirdly, taking into account the very prompt manner in which this matter resolved, I am of the view, in each case, that your pleas of guilty demonstrate both remorse and an acceptance of responsibility for your conduct.

48In the circumstances I have given each of you a substantial discount on sentence for your pleas of guilty.

Personal Circumstances – Yevgeni Bezhenar

49You are now 50 years of age. You were born in the Ukraine and are the elder brother of your co-accused Alexander Bezhenar. Your parents have been married for more than 50 years.

50You undertook your secondary education and your first university degree – which qualified you as a dental technician – whilst living in the Ukraine. You then immigrated to Australia with your family in the mid-1990s, after the collapse of the Soviet Union. On your arrival in Australia, you undertook an accounting degree at Monash University, which you successfully completed as a 28 year old. You then worked for a few firms for a number of years before joining HBC in 2005. You built up a portfolio of clients primarily via the Russian and Ukrainian community, and ultimately became a salaried partner at HBC.

51You married your first wife in 2003 and have a daughter (who is now 17 years old) from that marriage. However, that relationship broke down, and you and your first wife divorced in 2010. At around the same time, the owner of HBC wanted to leave the business and offered it to you – but at a price which you could not afford. I am told that in response to the stressors relating to your marriage breakdown and working life you suffered depression and began drinking heavily.  It was in this context that you committed the offending conduct subject of charge 1, which provided you with sufficient funding to purchase the business.

52I am told that you continued to drink heavily throughout the entire period of the offending the subject of this indictment, and only ceased drinking heavily when you remarried, to your current wife, in 2017. You do have a very limited, and largely irrelevant criminal history, which reflects your difficulties with alcohol abuse in the period between 2015 and 2016. 

53In the aftermath of the search warrant being conducted on HBC in 2017, you have continued working in the accounting area. However, due to you being unable to pay a tax debt in 2019, you were declared bankrupt and have only recently been discharged. As a consequence of your bankruptcy, you are not permitted to practice independently as an accountant. You now work as an employee assistant accountant.

Personal Circumstances – Alexander Bezhenar

54You are now 42 years of age. Like your brother you were born in the Ukraine, however you were only 14 years of age when you and your family immigrated to Australia. The first few years in Australia were difficult for your family as you all had very little on arrival.

55You attended Camberwell High School and managed to complete Year 11. However, you left part way through Year 12, and commenced working. You worked in a number of jobs including as a panel beater, as a storeman, and in security, before attending TAFE and studying accounting. After completing your course, you initially worked as a bookkeeper to gain experience, and then obtained a full time job as an accountant for a group of petrol stations. You worked there for a period of approximately seven years. Whilst you were working in this role you met and married your wife. You have a daughter together, who is now 8 years of age.

56In 2010, you joined your brother Yevgeni in working for HBC. At the time you joined the business, Yevgeni was still a salaried partner, and the business owner was looking to sell the business.  I am told that like Yevgeni, you decided to engage in the offending, the subject matter of charge 1, in a context where you were also drinking heavily, were medicated for depression, could not raise sufficient funds between you to purchase the business, and were facing the prospect of losing Yevgeni’s clients to an outside buyer. I am also told, that like Yevgeni, you had difficulties with excessive alcohol consumption throughout the entire period of the offending.

Gravity of Offending

57It is clear from the material before me that each of you acknowledge and accept that your offending was serious.

58Your offending, whilst intermittent, took place on a number of occasions over an extended period of time. In your case, Yevgeni Bezhenar, you offended on seven occasions over four and a half years, whilst you, Alexander Bezhenar, offended on five occasions over four years. Further, the offending conduct on each occasion involved the making, or use, of multiple false Commonwealth documents.

59Throughout the entire period of the offending, you were both accountants and operated a professional accounting firm. You had a duty, as accountants, not to be misleading, and your offending breached the trust which was placed in you by entities such as the ATO and financial institutions. Further in respect of those offences where you each used false Commonwealth documents, you did so in circumstances where you gained a personal advantage for yourselves. As a result of the offending subject of charge 1, you obtained financing to purchase HBC – which you had otherwise not been able to obtain; and as a result of the offending the subject of charge 5 you, Alexander Bezhenar, were able to refinance your home to allow you to pay off a large tax debt.

60It was put on behalf of each of you that in respect of the other offences you did not make any personal profit. Further it was submitted in respect of each offence, that although the financial institutions were taking on risks which they may not have taken on had they known the true state of affairs, there is no evidence to suggest that any of the loans were defaulted on, or that any of the financial institutions suffered a loss as a result of your actions. 

61Whilst I acknowledge that ultimately there was no loss accorded to the financial institutions by reason of your offending, I do agree with the prosecution submission that the need for general deterrence is still an important sentencing factor for offences of this kind.  As submitted by Mr Botros, and as I acknowledged in my sentencing reasons in respect of your co-accused Mr Vinarsky, Commonwealth documents, which purport to be official, are routinely relied upon in a variety of settings in society. Offences of this kind undermine public confidence in the integrity of such documents.  Further, offences of this kind are difficult to detect.  In this instance, the offending was only discovered in the course of a different investigation.  Given the difficulty in detecting such offences and the need to uphold the integrity of official documents, a sentence should be imposed that deters others from similar offending.  

62However, in this case, as with Mr Vinarsky, the gravity of the offending and the need to give substantial weight to general deterrence are only two of a number of factors which must be balanced in the sentencing synthesis.

Delay, Rehabilitation and the Weight to be given to Specific Deterrence

63As I have already outlined, there has been a significant delay in this matter between the search warrant being executed in 2017 and you being sentenced for this offending in late 2022. Much of that delay is accounted for in the period between the search warrant being executed and each of you being charged. I have taken the consequences of this delay into account in two ways in sentencing each of you.

64Firstly, I have taken into account that each of you have had the weight of this matter and the uncertainty as to the possible consequences hanging over your head since 2017.

65Secondly, in your case Yevgeni Bezhenar, it is now some six and a half years since your last offence. You have not committed any further offences in the meantime. Further you have remarried; now have the full-time care of your 17 year old daughter and 22 year old step-daughter who are living with you and your wife; have obtained new employment; have substantially reduced your alcohol consumption; and, in my view, have totally rehabilitated yourself.

66In your case, Alexander Bezhenar, it is now almost seven years since your last offence. You had no prior convictions and you have not committed any further offences in the meantime. Further you have also curbed your drinking, are no longer in a position where you require medication for your depression, have obtained new employment; and, in my view, have also totally rehabilitated yourself.

67In each of your cases I have taken this progress in rehabilitation into account in your favour in sentencing you. Further, given the passage of time, your progress in rehabilitation and the impact that having these charges hanging over your head has had on each of you, I do not see a basis for placing any weight on specific deterrence as a sentencing purpose in this case.

Parity

68In sentencing each of you, I have also had regard to the principle of parity.

69Your co-accused, Eugene Vinarsky, pleaded guilty to three charges of making a false Commonwealth document contrary to section 144.1(5) of the Criminal Code (Cth) for his role in the incidents the subject of charges 1, 2 and 3 on this indictment. On 24 May 2022, I sentenced Mr Vinarsky to a 12-month community correction order with a condition that he perform 200 hours of community work.  

70There is not a lot to distinguish each of you from each other insofar as your personal circumstances and other mitigating factors are concerned, however there are significant differences in the objective seriousness of the offending committed by Mr Vinarsky and each of you. Whilst the offending the subject of charges 1, 2 and 3 could not have been committed without Mr Vinarsky’s ability to manipulate documents, his offending was at your behest and direction; his offending did not constitute a breach of trust; he was not the one who came up with the false alternative figures which were ultimately going to be relied upon by a financial institution in assessing whether to grant finance; he was not involved in as many incidents of making and/or using false documents as each of you were; and, whilst he received a minimal amount of compensation for his work, he did not gain the significant financial advantage out of his offending that each of you did out of the offending the subject of charges 1 and 5. Accordingly, there is a basis for substantial disparity in the sentences and types of sentences which are imposed upon each of you and Mr Vinarsky.

71Insofar as parity between the two of you is concerned, I agree with Mr Botros that whilst your moral culpability for the offending is similar, there is some room for disparity between you on the basis that you Yevgeni Bezhenar fall to be sentenced in respect of a greater number of charges, and have a more central role in those offences for you fall to be jointly sentenced.

Sentencing Submissions

72Turning now to the sentencing submissions made in this case.

73Mr Botros, on behalf of the prosecution submitted that each of you have offended in a manner which is serious and which calls for a term of imprisonment. However, he submitted that it is a matter for the Court as to how that term of imprisonment ought to be served. Further, Mr Botros submitted that in this case there is room for the imposition of aggregate penalties in respect of some of the offending.

74Mr Nathwani, on your behalf Yevgeni Bezhenar, conceded that a term of imprisonment is an appropriate disposition in your case, but submitted that given the mitigating circumstances in this case, there is no need for a disposition to be imposed which requires a term of imprisonment to be served immediately.

75Mr Furstenberg, on your behalf Alexander Bezhenar, did not concede that a term of imprisonment is required in your case. He submitted that whilst there must be a level of disparity between the sentence imposed upon Mr Vinarsky and the sentence imposed upon you, a community correction order would still be an appropriate disposition in your case. However, he submitted that in the event I was not in agreement that all of the sentencing purposes could be met by the imposition of a community correction order, then a term of imprisonment with immediate release on a recognisance release order would be an appropriate disposition.

Comparative Cases

76In determining an appropriate sentence in this case, I do have a duty to regard what has been done in comparable cases throughout the Commonwealth. To this end, Mr Botros provided a short table of cases where offenders have been sentenced for offences against s144.1(5) of the Criminal Code in circumstances where pleas of guilty had been entered.  I note that I was also referred to one of the cases in that table by Mr Nathwani. The sentences in the cases to which I was referred were all terms of imprisonment with release either forthwith or after serving a period of imprisonment of eight months or less.  Mr Botros rightly conceded, however, that none of the cases referred to in that table are on all fours with the present case, either in terms of the factual scenario or the circumstances of the accused.

77Despite this, I have taken each of the cases referred to into account, as they do provide guidance as to the application of the relevant sentencing principles in this area and can also be used as yardsticks that may be able to illustrate, although not define, the possible range of sentences available.  Ultimately, however, I have sentenced each of you in this case on the basis of applying the principles to the specific facts of you and your case.

Other Sentencing Purposes and Principles

78Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all of the circumstances of the case. Section 20AB of the Act leaves open the option of imposing certain state-based sentencing alternatives, such as a Community Correction Order, when sentencing a federal offender.

79I have considered all of the matters before me in this case including the substantial mitigating factors, and the principle of totality. Despite the mitigating factors present in this case, any sentence which I impose must still reflect the gravity of the offending committed by each of you, the need to deter others in a similar position of trust from offending in the manner which each of you have, and must also be an adequate punishment for the offences committed. I have had regard to whether any other sentencing disposition, aside from imprisonment, would adequately address each of the sentencing principles and purposes which arise here. However ultimately, when all of the relevant sentencing principles and purposes are considered, I am not satisfied that any sentence other than a term of imprisonment would be an appropriate sentencing option in this case. I am however satisfied that given the substantial mitigating factors applicable to each of you, including your pleas of guilty, the substantial delay, and your complete rehabilitation, each of you should be immediately released upon a recognisance release order.

80Finally, I note that I am of the view, in sentencing each of you that it is appropriate for aggregate sentences of imprisonment to be imposed in respect of groups of offences of making false Commonwealth documents for each of you, and using false Commonwealth documents for you, Alexander Bezhenar. In respect of each set of offences for which I have imposed an aggregate term of imprisonment, I have done so on the basis that they constitute a series of offences of the same character. I have not aggregated as between making and using false document offences so that the greater level of culpability and gravity which attaches to the use of false document offences can be clearly identified.

Sentence – Yevgeni Bezhenar

81Mr Yevgeni Bezhenar, can you please stand up.

82On charge 1, using false Commonwealth documents, you are convicted and sentenced to a term of imprisonment of 4 months.

83On charges 2, 3, 4, 7, 8 and 9, all being charges of making false Commonwealth documents, you are convicted and sentenced to an aggregate term of imprisonment of 8 months.

84The aggregate sentence imposed on charges 2, 3, 4, 7, 8 and 9 is to commence 2 months after the commencement of the sentence imposed on charge 1.

85Accordingly the total effective sentence is 10 months’ imprisonment.

86I note that there is no pre-sentence detention to be declared in this case.

87Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released immediately upon you entering into a recognisance in the sum of $1000 to be of good behaviour for a period of eighteen months.

88Mr Bezhenar, the purpose and effect of the recognisance release order is to immediately grant you freedom, however that freedom is conditional on you remaining of good behaviour. If you commit a further offence during the next 18 months, then unless you can show a reasonable excuse for the further offending, you will be dealt with for that breach. Some of the potential outcomes if you do breach the order are that you may have to pay the $1000 I have indicated, and you may have to serve the 10 month term of imprisonment which I have imposed. Do you understand that?

89OFFENDER: Yes.

90HER HONOUR: I also inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Crimes Act 1914(Cth).

91Given what I have told you, are you willing to agree to be of good behaviour for that 18 month period?

92OFFENDER: Yes, Your Honour.

93HER HONOUR: You can take a seat for the moment but I will need you to sign a copy of the order in due course.

Section 6AAA Declaration

94Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 18 months imprisonment with release on an RRO after 12 months on the condition that you be of good behaviour for a period of 2 years.

Sentence – Alexander Bezhenar

95Mr Alexander Bezhenar, can you please stand up.

96On charges 1 and 5, both being charges of using false Commonwealth documents, you are convicted and sentenced to an aggregate term of imprisonment of 5 months.

97On charges 3, 6 and 7, each of which are charges of making false Commonwealth documents, you are convicted and sentenced to an aggregate term of imprisonment of 3 months.

98The aggregate sentence imposed on charges 3, 6 and 7 is to commence 3 months after the commencement of the aggregate sentence imposed on charges 1 and 5.

99Accordingly the total effective sentence is 6 months’ imprisonment.

100I note that there is no pre-sentence detention to be declared in this case.

101Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released immediately upon you entering into a recognisance in the sum of $1000 to be of good behaviour for a period of 18 months.

102Mr Bezhenar, the purpose and effect of the recognisance release order is to grant you conditional freedom. If you commit a further offence during the next 18 months, then unless you can show a reasonable excuse for the further offending, you will be dealt with for that breach. Some of the potential outcomes if you do breach the order are that you may have to pay the $1000 I have indicated, and you may have to serve the 6 month term of imprisonment which I have imposed. Do you understand that?

103OFFENDER: Yes, Your Honour.

104HER HONOUR: I also inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Crimes Act 1914(Cth).

105Given what I have told you, are you willing to agree to be of good behaviour for that 18 month period?

106OFFENDER: Yes, Your Honour.

107HER HONOUR: You can take a seat for the moment. You will also need to sign a copy of the order, which I will get you to do in due course.

Section 6AAA declaration

108Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 12 months imprisonment with release on an RRO after 8 months on the condition that you be of good behaviour for a period of 2 years.

Other matters

109Counsel are there any matters which any of you wish to raise about the sentence or reasons for sentence at this time?

110MR BOTROS: No, Your Honour.

111MR NATHWANI: No, Your Honour.

112MR FURSTENBERG: No, Your Honour.

113HER HONOUR: Mr Botros are there any ancillary orders which are sought, or which I am required to make?

114MR BOTROS: No, Your Honour.

115HER HONOUR: Are there any other matters which any of you wish to raise?

116COUNSEL: No, Your Honour.

117HER HONOUR: Mr Botros and Mr Furstenberg, could you please just check that you are satisfied that the RRO’s properly reflect the sentences as I have announced them, before the accused sign them.