CDirector of Public Prosecutions v Vinarsky

[2022] VCC 740

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-22-00078

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

EUGENE VINARSKY

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JUDGE:	Her Honour Judge Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2022
DATE OF SENTENCE:	24 May 2022
CASE MAY BE CITED AS:	CDPP v Vinarsky
MEDIUM NEUTRAL CITATION:	[2022] VCC 740

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Making a false Commonwealth document – plea of guilty – delay

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

Sentence:                  Convicted and sentenced to a Community Correction Order of 12 months with 200 hours of unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Peter Botros	Commonwealth Director of Public Prosecutions
For the Accused	Mr Rob Melasecca	Melasecca, Kelly & Zayler

HER HONOUR:

Introduction

1Eugene Vinarsky, you have pleaded guilty to three charges of making a false Commonwealth document contrary to s144.1(5) of the Criminal Code (Cth). The maximum penalty for each charge is a maximum penalty of 10 years' imprisonment and a fine of up to $66,000 for Charges 1 and 2 and $102,000 for Charge 3.[1]  The offences occurred between October 2011 and July 2013 when you were aged between 29 and 30 years of age.  You are now 39 years of age and come before this court with no prior convictions.

[1] The increased maximum fine in respect of charge 3 is as a result of the value of a Commonwealth penalty unit rising from $110 to $170 on 27 December 2012.

Circumstances of the Offending

2The full circumstances of your offending are set out in the Prosecution Opening for Plea which was tendered as Exhibit A on the plea.  However, in shorter compass, in October 2011 you were a graphic designer and two other men named Alexander Bezhenar and James Bezhenar operated an accounting firm named Halifax Business Consulting (HBC).  James was the director of this business, whilst Alexander was an accountant.  You knew Alexander and James, Alexander having helped you to find a job, and the two of them having helped you out over time with accounts and advice.

3From as early as August 2011, James Bezhenar was paying you to create false documents.  You were aware that the documents would be passed off by James as genuine documents.  On 26 October 2011, James Bezhenar sent
Alexander Bezhenar a series of documents to be forwarded to you to create a series of false versions of those documents.  The documents in question related to a business named ‘The Trustee for Halifax Trust’ (‘the Trust’) of which HBC was the trustee.   There were four genuine original 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.  There was also a genuine printout of the Trust's itemised account with the Australian Tax Office which showed payments made to and from the ATO and any outstanding or remaining balances and a copy of that same document with the genuine figures crossed out and new figures written next to them.

4On 27 October 2011, Alexander Bezhenar forwarded all of the documents to you and you forged the documents as directed.  You returned the five forged documents to Alexander and James on 6 November 2011 via email.  By your plea, you accept that at the time of making these five documents, you had the intention that another person would use the documents to dishonestly induce a third person to accept them as genuine, and if they were so accepted, to dishonestly obtain a gain.  This conduct constitutes the subject matter of Charge 1.  The forged documents were subsequently used by James and Alexander to obtain a business loan from Westpac Banking Corporation.

5On or around 28 July 2012, James Bezhenar again commissioned you to create false versions of documents.  On this occasion, the documents which you forged were documents purporting to be genuine ATO Notices of Assessment for a client of HBC, Rostislav Yerusalimsky.  James Bezhenar forwarded you a copy of the genuine Notice of Assessment in James' own name for 2011 with handwritten amendments to the name and figures.  On 29 July 2012, you sent an email to James and Alexander Bezhenar stating that you had produced a copy that was combined from three sources.  You 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 name and figures that matched those on the document sent to you by James Bezhenar the previous day.

6On 30 July, you sent a further email to James attaching two additional documents, one of which was the same document as you had sent 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.  By your plea, you accept that at the time of making these three documents, you had the intention that another person would use the documents to dishonestly induce a third person to accept them as genuine and, if they were so accepted, to dishonestly obtain a gain.  This conduct constitutes the subject matter of Charge 2. The 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 and his wife was approved by Advantedge.

7In around June and July of 2013, James and Alexander Bezhenar again agreed to commission you to make false documents, this time being Notices of Assessment for Alexander Marchinovskiy in his capacity as a public officer of
Almarex Financial Solutions Pty Ltd.  In 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.

8On 19 June 2013, a HBC employee sent James Bezhenar an email with 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.

9On 17 July 2013, Alexander Bezhenar sent you a document 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 day, you created two false Notices of Assessment for Mr Marchinovskiy using the handwritten details provided by Alexander Bezhenar.  The taxable income in each of the forged Notices of Assessment was substantially elevated by comparison with the genuine documents.  By your plea, you accept that at the time of making these two documents, you had the intention that another person would use the documents to dishonestly induce a third person to accept them as genuine and, if they were so accepted, to dishonestly obtain a gain.  This conduct constitutes the subject matter of Charge 3.

10Subsequently, between 19 June 2013 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, along with a letter provided by James Bezhenar to Advantedge in support of a loan application for $670,000.  On 2 August 2013, Advantedge approved the loan to
Mr Marchinovskiy.

11On 4 October 2017, the ATO executed a search warrant at the HBC office and your home, amongst other places, after HBC had come to the attention of the ATO during an audit into the validity of certain tax incentives.  You participated in a record of interview on that day in which you admitted to altering figures on documents sent to you by Alexander and James Bezhenar but denied knowing what the forged documents were to be used for.

Victim Impact

12I note that no Victim Impact Statements were tendered on the plea.  I further note that it was conceded by the prosecution that, in this particular instance, the impact of the offending was not necessarily measured by any loss to the financial institutions concerned but rather, was in the assumption of a risk by those institutions which was different in nature to that which they thought they were assuming.

Plea of Guilty, Co-operation with Authorities and Contrition

13Your plea of guilty in this case is a valuable plea.

14As I have already outlined, your offending occurred between 2011 and 2013.  You were interviewed in 2017 and made full admissions to your offending conduct at that time. You were not charged until November 2021. The matter then quickly proceeded via straight hand-up brief to the County Court and you entered your pleas of guilty in this Court on 11 May 2022 after I gave a preliminary sentence indication that you would not be facing an immediate term of imprisonment in this case.

15Section 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) and s16A(2)(h) respectively require me to take into account your degree of contrition for your offending and your level of co-operation with law enforcement agencies investigating this offence.

16I consider your plea to have been entered at the very earliest opportunity.  It has significant utilitarian value which gains even greater weight in the current climate of the pandemic which has caused unprecedented disruptions to the smooth running of the criminal justice system.  Furthermore, I am satisfied that your plea, especially considered in light of your full cooperation with the tax office, your extensive admissions in your record of interview and the conversations you have had with those around you as reflected in the character references tendered on your plea, is indicative of genuine remorse.

17In the circumstances, I have given you a substantial discount for your plea of guilty.

Gravity of Offending

18It is clear from the material before me that you acknowledge and accept that your offending was serious.  Your offending was not isolated; it took place on three separate occasions over a period of approximately one year and 9 months and on each occasion involved the creation of multiple false documents.  Whilst you did not know what a business activity was, and I am told you are still not sure what one is, you did know that you were forging financial documents, you provided those documents to accountants, and your plea confirms that you did so in circumstances where you intended that another person would use the documents to dishonestly induce a person to accept them as genuine and, if they were so accepted, to dishonestly obtain a gain.  Having said that, I acknowledge that you were not the person who used the documents, you received minimal or no compensation and your offending ceased some four years prior to it being discovered by the authorities.

19I do agree with the prosecution submission that the need for general deterrence is an important sentencing factor for offences of this kind.  As submitted by Mr Botros,  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.   However, in this case, 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.

Personal Circumstances

20Turning now to your personal circumstances.  You were born in Kharkiv, Ukraine to your mother Larisa Laishina and your father Ernest Vinarsky.  Your mother was a hydraulic engineer and your father was an industrial designer.  Your parents divorced when you were five years old and you stayed with your mother in the Ukraine.  Your family had very little money and as a child, you would travel alone to the market in Moscow to purchase items and resell them in Kharkiv.  You witnessed abuse, corruption and racketeering at the market and ultimately did not make much money out of your ventures.  You also missed out on a lot of schooling as a result of these trips.

21You came to Australia initially as a twelve year old for seven months and then returned to the Ukraine.  You then moved to Israel with your grandparents for two and a half years before moving to Australia permanently when you were 16 years of age.  By this point you were able to speak four languages; Ukrainian, Russian, Hebrew and English.  It was also at this point that you first had the opportunity to engage in consistent schooling.  You enrolled in Year 10 at Elwood College and ultimately completed VCE with the fifth highest overall score at your school and the highest score in specialist mathematics.

22After completing Year 12, you commenced a Bachelor of Multimedia and Networking at Swinburne University but were unable to finish it due to leaving your grandmother's home and needing to support yourself and your family.  You have worked consistently since that time and you have also undertaken a few short courses to supplement your knowledge.  You initially worked in sales and telemarketing for two companies; Australian Cable and Telephony and Panasales.  You ended up leaving Panasales after four years because your friend, and ultimately co-accused Alexander Bezhenar, was working at Chromagen as an accountant and recommended you for a position at Chromagen as a graphic designer.  You obtained the job at Chromagen in 2005 and have worked there ever since.

23When you commenced at Chromagen, you were working in the graphic design and marketing team.  You worked in that team until 2014 and then moved to being a trades representative for a few years.  In approximately 2016, you were promoted to the position of business development manager and remain in that role today.  It is apparent from the references tendered on your plea from Eli Cohenka the CEO of Chromagen and Alan Shuvaly the Director of All Solar Systems, as well as the other supporting documents about your work, that you are talented, hardworking and very well-respected in the industry.  They, like all of the other referees who have provided glowing references on your behalf, believe that your offending was entirely out of character and does not reflect the man you are today.

24In terms of your family, you met your now wife Ia, at Swinburne University in 2003.  You started dating in 2006 and married in 2014.  You have two sons together, one who has just turned five and the other being almost seven years of age. 
Mrs Vinarsky provided a reference to the court and gave oral evidence on your plea.  She says that you are a loving and caring husband and father who shares responsibility for family duties and has always supported her to be able to progress her career as well as your own.  It was apparent from your wife's evidence that there has been a considerable amount of anxiety within your home about what might happen with this matter over the past five years, since you were arrested and interviewed about your role in the offending.  I note that my announcement in court on the sentence indication that I would not be imposing an immediate term of imprisonment in this case, provided both you and your wife with a profound sense of relief, as a term of immediate imprisonment was something you had both been fearing.

25I have taken the consequences of the delay in this matter into account in your favour in two ways.  Firstly, I have taken into account that you have had the weight of this matter and the uncertainty as to the possible consequences hanging over your head since 2017.  Secondly, it is now some nine years since your last offence.  You have not committed any further offences and your life has changed significantly since the offending.  You are now married, have two sons, have recently purchased a home to raise your family in and, in my view, are totally rehabilitated.  I see no need in your case for me to place any weight on specific deterrence.  I have taken this progress in rehabilitation into account in sentencing you.

26Finally, turning to other members of your family, I am told that your mother and your half-sister Oleksandra Makovoz, are still living in the Ukraine and are effectively trapped due to the current war with Russia.  Your mother in particular, is living in a town which has been under continuous bombing and siege from Russian forces.  She is unable to work as she spends a significant amount of her time in bomb shelters in her apartment and is often not able to leave her home for days.   You have been the primary financial support for your mother and half-sister through this time, sending them regular amounts of money to buy supplies as there are no Red Cross donations or food supplies getting into the region at this time. 

27I was addressed by both your counsel and prosecuting counsel about the relevant test to be applied when considering hardship to family in the sentencing synthesis and also as to the weight that I should give to hardship in the current circumstances.  Ultimately, I do not intend to address those submissions as, in my view, the issue of hardship to family does not arise as a mitigating feature in this case, given that the sentence I intend to impose will not have an effect on your ability to continue sending money to your family or assisting them with any visa applications which they might make.  That, of course, does not mean that I am not sensitive to your family's very precarious situation at this time in the Ukraine; I am.  But rather, what it means is that hardship by reason of any sentence or order which I impose, does not fall to be considered by me as a mitigatory circumstance for the purpose of this plea.

Sentencing Submissions and Comparative Cases

28Turning now to the sentencing submissions made by counsel.  Mr Botros for the prosecution submitted that your offending is serious and calls for a term of imprisonment, however, he submitted that the manner in which that term of imprisonment is to be served is a matter for the court and conceded that a term of imprisonment which does not commence immediately would be within the proper exercise of the sentencing discretion.

29Your counsel Mr Melasecca, variously submitted that considering your personal circumstances and the various mitigating factors in this matter, that a bond with conviction pursuant to s20(1)(a) or a Community Correction Order would be an appropriate disposition in this case.  In the alternative, he submitted that if I was of the view that a period of imprisonment must be imposed, that you should be released immediately upon a recognisance release order.

30In 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.  The sentences in those cases 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.

31Despite 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 you in this case on the basis of applying the principles to the specific facts of you and your case.

Sentence

32Section 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. Further, under s20AB, the Act leaves open the option of certain state-based sentencing alternatives, such as a Community Correction Order, when sentencing a federal offender.

33With this in mind, I had you assessed for a Community Correction Order.  You were, unsurprisingly given your personal circumstances, assessed as suitable for such an order.  The assessor noted that, throughout the assessment, you remained respectful and answered all questions asked of you.  Given your low risk of general re-offending, it has not been recommended that you be required to engage in supervision or programs during the period of any order which I impose.  However, an unpaid community work condition was endorsed as being suitable.

34I have considered all of the matters before me in this case.  Any sentence I impose must reflect the gravity of the offending, the need to deter others and must also be an adequate punishment for the offences committed.  However, there are significant mitigating factors in this case and when all of the relevant sentencing principles and factors are considered, I am not satisfied that imprisonment is the only appropriate sentencing option open in this case.  I am of the view that a Community Correction Order with conviction which requires you to undertake unpaid community work over a period of time, can sufficiently deter, denounce and punish your offending behaviour, whilst still giving appropriate weight to the substantial mitigating features in this case.

35So, Mr Vinarsky, if you could please stand up.

36On Charges 1, 2 and 3, you are convicted and placed on Community Correction Order which will commence today and last for a period of 12 months.  In addition to the mandatory conditions, you will have the following special conditions:

(i)You must report to Moorabbin Community Correctional Services by
4 pm on Thursday 26 May 2022.  I believe that you can do that by calling them rather than going in person.  I would make that phone call in plenty of time so that if they say you have to go in person, you have got time to do that, but I understand you can do it by a phone call. 

(ii)You must complete 200 hours of unpaid community work during the period of the order.  Soo that means you have to do 200 hours of unpaid community work within the 12 months from today.  Do you understand that?   All right. 

37OFFENDER:  Yes, Your Honour

38HER HONOUR:  Do you understand the conditions of the order?

39OFFENDER:  Yes, Your Honour. 

40HER HONOUR:  All right.  I must tell you that, if you do not comply with the requirements of the order or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order and the matter will be brought back before me.  One of the potential outcomes if you breach the order is that you may fall to be re-sentenced in relation to these offences.  Do you understand that?

41OFFENDER:  Yes, Your Honour. 

42HER HONOUR:  All right.  Given what I have told you about the consequences of breaching the order, and the conditions which apply, do you consent to undertaking the community correction order?

43OFFENDER:  Yes, Your Honour. 

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