Dankovic v The Queen

[2012] VSCA 255

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0147
MARINA DANKOVIC	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NETTLE JA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 October 2012
DATE OF JUDGMENT	25 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 255	1st Revision 26 October 2012 [18]
JUDGMENT APPEALED FROM	[2012] VCC 712 (Judge Lacava)

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CRIMINAL LAW – Sentencing – Charges of obtain property by deception, make false document, use false document and obtain financial advantage by deception – Whether total effective sentence of two years and six months’ imprisonment with non-parole period of one year and eight months manifestly excessive – Whether because charges could have proceeded in Magistrates’ Court maximum penalties reduced – Need for specific deterrence – Appeal dismissed – Hansford v His Honour Judge Neesham [1995] 2 VR 233 followed – Magistrates’ Court Act 1989 s 53.

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DETERMINED ON THE PAPERS

NO ORAL HEARING REQUESTED

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Appearances:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent	No appearances

MAXWELL P:

1. I agree with Nettle JA.

NETTLE JA:

1. This is an application for leave to appeal against a total effective sentence of two years and six months’ imprisonment, with a non-parole period of one year and eight months, imposed on the applicant on pleading guilty to two charges of obtaining property by deception, one charge of obtaining financial advantage by deception, one charge of making a false document and one charge of using a false document.  The individual sentences, orders for cumulation and s 6AAA declaration were as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation[1]
B10135069 (first indictment)
1	Obtain property by deception [Crimes Act 1958 (Vic) s 81]	10 years [Crimes Act 1958 (Vic) s 81]	2 months	None
2	Obtain property by deception	10 years	6 months	6 months
B11356768 (second indictment)
1	Make false document [Crimes Act 1958 (Vic) s 83A(1)]	10 years [Crimes Act 1958 (Vic) s 83A(1)]	6 months	None
2	Use false document [Crimes Act 1958 (Vic) s 83A(2)]	10 years [Crimes Act 1958 (Vic) s 83A(2)]	6 months	None
3	Obtain financial advantage by deception [Crimes Act 1958 (Vic) s 82]	10 years [Crimes Act 1958 (Vic) s 82]	2 years	Base

[1]The judge ordered that the sentence imposed on Charge 2 on the first indictment should be served cumulatively upon the sentence imposed on Charge 3 on the second indictment.

Total Effective Sentence:	2 years and 6 months
Non-Parole Period:	1 years and 8 months
Pre-sentence Detention Declared:	390 days
6AAA Statement:	Head sentence of 3 years and 6 months’ imprisonment with a non parole period of 2 years and 4 months

The facts

1. The offending the subject of charges 1 and 2 on the first indictment occurred while the applicant was employed by a business called HPCC Finance in Footscray.  Under the name, Marina Loprese, she acted as a conveyancer for one Thi Tran on her purchase of a property.

1. On 21 December 2009, prior to settlement of the purchase, the applicant sent a fax to Ms Tran’s bank, the National Australia Bank, on the letterhead of HPCC, requesting cheques purportedly required for settlement.  The request was for two cheques, one payable to M Loprese for $495 (Charge 1) and the other for $2,500 payable to M Dankovic (Charge 2).  Neither cheque was required for settlement and each was instead paid into bank accounts controlled by the applicant.  By that means, the applicant obtained a total sum of $2,995 by deception from the National Australia Bank;  although the loss was suffered by Ms Tran whose account the bank debited. 

1. On 18 January 2011, the applicant was arrested and interviewed and charged with that offending.  At interview, she did not express remorse but claimed to have acted on authority and told police that she was entitled to the cheques.  That was a lie.

1. The offending the subject of charges 1, 2 and 3 on the second indictment occurred later in January 2011,while the applicant was released on bail.  At that stage she was carrying on a conveyancing business in Sunshine called Marina’s Conveyancing.  She acted as a conveyancer for one Gail Sutherland, an immigrant from South Africa, who had signed a contract to purchase a house.  The applicant first requested Ms Sutherland to arrange with her bank to deposit the full amount of the purchase price into a trust account controlled by the applicant.  Later, however, the applicant told Ms Sutherland that the arrangement would need to change and she asked Ms Sutherland to obtain a bank cheque for $17,452 payable to Marina’s Conveyancing and to give it to the applicant for settlement.  In her email to Ms Sutherland, the applicant detailed the breakdown of the bank cheque being:  $500 was for the costs of conveyancing, $1,082 for Titles Office Lodging Fees, and $15,870, supposedly for stamp duty payable on the transfer of land.  

1. On or before 2 March 2011, the bank cheque was provided to the applicant.  Instead of using the $15,870 to pay stamp duty on the transfer, the applicant prepared a false a statutory declaration (Charge 1) and lodged it with the State Revenue Office (Charge 2) in order to induce the State Revenue Office to accept that the transfer was exempt from duty.  The applicant then used the $15,870 for everyday living (Charge 3). 

Grounds of appeal

1. There are two proposed grounds of appeal.  The first is that the individual sentences and orders for cumulation are manifestly excessive;  and the second is that the charges could and should have proceeded in the Magistrates’ Court, rather than on indictment, with the result that the judge should have proceeded on the basis that the maximum penalty applicable to each charge was two years’ imprisonment and that the total effective sentence could not exceed five years’ imprisonment.

Ground 1 – Manifest excessiveness

1. The essence of the complaint advanced under the first ground of appeal is that the sentence of two years’ imprisonment imposed on Charge 3 on the second indictment is manifestly excessive and further or alternatively that the order that the order for total cumulation of the sentence imposed on Charge 2 on the first indictment on the sentence imposed on Charge 3 on the second indictment is manifestly excessive.

1. It was submitted in the applicant’s written case in support of that complaint that the sentence imposed in Charge 3 on the second indictment was greater in magnitude by 22 months than the sentence imposed on Charge 1 on the first indictment, and greater by 18 months than the sentence imposed on Charge 2 on the first indictment, and that such a ‘quantum increase’ could not be justified by reason of the greater dollar value of the offence comprised in Charge 3 on the second indictment or the manner of its commission.  Putting it another way, it was submitted, if the sentences imposed on Charges 1 and 2 on the first indictment were within the range, it must follow that the sentence imposed in Charge 3 on the second indictment was manifestly beyond the range.  

1. In my view the argument is misplaced.  Although the amount of money in issue is not always the sole or even a precise indicator of the nature and gravity of an offence of obtaining financial advantage by deception,[2] it is an obvious starting point in the synthesis of relevant sentencing considerations.  It goes to the essence of the offending. 

   [2]R v Samia [2009] VSCA 5, [7]–[8].

1. Here, to adopt and adapt the language of the applicant’s written case, the amount of money involved in Count 3 on the second indictment was a quantum leap above the amounts of money involved in Charges 1 and 2 on the first indictment.  Prima facie, therefore, it makes obvious sense for the judge to have imposed a sentence of only two months’ imprisonment on Charge 1 on the first presentment (because it involved a sum of only $495);  a greater sentence of six months’ imprisonment on Charge 2 on the first presentment (because it involved a substantially greater sum of $2,995);  and two years’ imprisonment on Charge 3 on the second presentment (which involved a very much larger sum of $15,870).

1. Moreover, as was submitted on behalf of the Crown, there was a range of additional considerations which operated in further support of the judge’s sentencing disposition.  They included that the offence the subject of Charge 3 on the second indictment involved considerably more planning and sophistication than Charges 1 and 2 on the first indictment; it was committed after and therefore was to be seen in the light of the offending the subject of Charges 1 and 2 on the first indictment; and it was committed while the applicant was released on bail awaiting trial on Charges 1 and 2 on the first indictment.

1. Nor is it reasonably arguable that the individual sentence of two years’ imprisonment imposed on Charge 3 on the second indictment, for an offence of obtaining some $16,000 by deception, was inherently excessive.  As a very rough but useful indication of sentencing practices, the Sentencing Snapshot No 107 published March 2011 discloses that, over the period 2005–6 to 2009–10, principal terms of imprisonment imposed for the offence of obtaining financial advantage ranged between two months and seven years, with a median length of two years, and that the most common length of sentences was between one and two years.  Given the nature and gravity of this offending, and that the applicant had numerous prior convictions from 15 court appearances dating back to August 1979 (almost all of which were for offences of dishonesty), a sentence of two years’ imprisonment was wholly unremarkable.  Unquestionably, there was a real need for specific deterrence and, with this kind of offending, the need for general deterrence is self-evident.

1. It was submitted on behalf of the applicant that, whether or not the sentence imposed on Charge 3 on the second indictment was excessive, its total cumulation on the sentence imposed on Charge 2 on the first indictment was excessive because it resulted in a total effective sentence which, she contended, offended the principle of totality.

1. In my view, that submission is equally unpersuasive. Section 16(3C) of the Sentencing Act 1991 creates a prima facie rule that, unless the court otherwise directs, a term of imprisonment imposed for an offence committed while an offender is released on bail must be served cumulatively on any uncompleted sentence imposed on that offender.  It is true that the rule is subject to the overriding consideration of totality and to the other facts and circumstances of the case.[3]  But, in view of the facts and circumstances of this case, the totality principle did not go near to displacing the presumption in favour of total cumulation.

   [3]R v Garcia [2007] VSCA 194, [18].

Ground 2 – Magistrates’ Court

1. Under cover of proposed Ground 2 of appeal, it was submitted on behalf of the applicant that, in view of observations made by the sentencing judge that the charges could have proceeded in the Magistrates’ Court, the judge should be taken to have accepted that the maximum term of imprisonment applicable to any single charge ought not to have exceeded two years’ imprisonment and that the total effective sentence ought not to have exceeded five years’ imprisonment.  Hence, it was contended, the sentences imposed were manifestly excessive.

1. That argument is also untenable. No doubt, the charges could have been prosecuted in the Magistrates’ Court, as the judge observed. If they had been so prosecuted, however, the maximum penalty for each offence would still have been as it was in the County Court. Section 28 of the Criminal Procedure Act 2009 (previously s 53 of the Magistrates’ Court Act 1989) enables indictable offences to be tried in the Magistrates’ Court in certain circumstances. If they are so tried, s 113 of the Sentencing Act 1991 provides that the Magistrate cannot impose a greater sentence on any one charge of more than two years’ imprisonment; and s 113B provides that the total effective sentence may not exceed five years’ imprisonment. But that does not mean that the maximum penalty for any offence so tried is reduced to two years’ imprisonment. As Brooking J explained in Hansford v His Honour Judge Neesham & Ors:

Where a court tries an indictable offence summarily under s 53(1) of the Magistrates' Court Act and convicts the defendant, by s 113 of the Sentencing Act, the maximum term of imprisonment to which the court may sentence the offender for that offence is two years.  But this does not mean that two years is ‘the maximum penalty prescribed for the offence’, to which the court must have regard by force of s 5(2)(a).  That phrase is confined to the maximum penalty selected by the legislature as that which should be prescribed for a

particular crime. Section 5(2)(a) is in no way concerned with the limitation imposed by s 113 upon the jurisdiction or powers of a sentencing magistrate, whereby, whatever the nature of the offence, and whatever the maximum penalty prescribed for it, the magistrate may not impose a term of imprisonment greater than two years for the offence. Section 113 operates indifferently upon all sentences to be imposed for an indictable offence tried summarily under s 53(1). It does not prescribe a maximum penalty for the offence in the sense in which those words are used in s 5(2)(a), the specification of a maximum penalty by the legislature for a particular crime. It leaves the statutory maximum penalty untouched, but imposes upon a particular sentencing court a jurisdictional limit. It imposes its own maximum, not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court … .[4]

[4][1995] 2 VR 233, 236–7; see also R v Duncan [2007] VSCA 137, [19]–[20].

1. Here, the judge expressly took into account that the charges could have been prosecuted in the Magistrates’ Court.  His Honour stated in effect that he limited the sentence imposed on Charge 3 on the second indictment to the two years’ of imprisonment to which it would have to have been limited in the Magistrates’ Court if the charges had been prosecuted in that forum.[5]  

   [5]Sentencing Remarks, [33]–[35].

1. In the result, Ground 2 is not reasonably arguable.

Conclusion

1. It follows that I would refuse the application for leave to appeal against sentence.

FERGUSON AJA:

1. For the reasons given by Nettle JA, I too would refuse the application for leave to appeal against sentence.

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