Director of Public Prosecutions v Lapatis; Director of Public Prosecutions v Stakic
[2025] VSCA 105
•20 May 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0178 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| APOSTOLOS LAPATIS | Respondent |
| S EAPCR 2024 0190 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DAVID STAKIC | Respondent |
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| JUDGES: | McLEISH, BOYCE and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 March 2025 |
| DATE OF JUDGMENT: | 20 May 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 105 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1618 (Judge Lauritsen); [2024] VCC 1421 (Judge McInerney) |
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CRIMINAL LAW – Appeals – Sentence – Crown appeals – Obtaining property by deception – Respondents deceived married couple into contributing financially towards fictitious High Court case – $2.9 million obtained by deception – Others deceived by one respondent into contributing financially to separate fictitious schemes – Whether sentences imposed on respondents manifestly inadequate – Rolled‑up charges – Course of conduct charge – Appeals allowed – Respondents resentenced.
Crimes Act 1958, s 81; Sentencing Act 1991, s 5(2F).
Poursanidis v The Queen (2016) 50 VR 681; R v Jones [2004] VSCA 68; R v Samia [2009] VSCA 5, discussed – DPP v Karazisis (2010) 31 VR 634; DPP v Ristic [2024] VSCA 251, applied.
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| Counsel | ||
| Appellant: | Ms E Ruddle KC with Mr L McAuliffe | |
| Respondent (Lapatis): | Mr M Stanton SC with Ms D Price | |
| Respondent (Stakic) | Mr J O’Connor | |
Solicitors | ||
| Appellant: | Ms A Hogan, Solicitor for Public Prosecutions | |
| Respondent (Lapatis): | Michael J Gleeson & Associates | |
| Respondent (Stakic) | Valos Black & Associates | |
MCLEISH JA
BOYCE JA
ORR JA:
Introduction
The Director of Public Prosecutions (‘appellant’) has appealed against sentences imposed in the County Court on respondents Apostolos Lapatis (‘Lapatis’) and David Stakic (‘Stakic’).
Lapatis pleaded guilty to four ‘rolled‑up’ charges of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 (‘Crimes Act’). He was sentenced on 7 September 2023 by Judge Lauritsen. The sentences imposed upon Lapatis were as follows.
Charge
Offence
Maximum
Sentence
Cumulation
Indictment L12187821 1 Obtaining property by deception[1] 10 years 4 years Base 2 Obtaining property by deception[2] 10 years 12 months 3 months 3 Obtaining property by deception[3] 10 years 18 months 3 months 4 Obtaining property by deception[4] 10 years 12 months 3 months Total Effective Sentence: 4 years and 9 months’ imprisonment Non-Parole Period: 3 years and 2 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 48 days Section 6AAA Statement: 7 years and 6 months’ imprisonment Other Relevant Orders: N/A [1]Contrary to s 81(1) of the Crimes Act 1958.
[2]Contrary to s 81(1) of the Crimes Act 1958.
[3]Contrary to s 81(1) of the Crimes Act 1958.
[4]Contrary to s 81(1) of the Crimes Act 1958.
Stakic pleaded guilty to one charge of obtaining property by deception. This charge was a ‘course of conduct’ charge. Stakic was sentenced on 10 September 2024 by Judge McInerney. He was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
Indictment L12187923.1 1 Obtaining property by deception[5] 10 years 2 years and 6 months N/A Total Effective Sentence: 2 years and 6 months’ imprisonment Non-Parole Period: 1 years and 8 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 36 days Section 6AAA Statement: 3 years and 4 months’ imprisonment with a non‑parole period of 2 years and 3 months Other Relevant Orders: N/A [5]Contrary to s 81(1) of the Crimes Act 1958.
Stakic and Lapatis were co‑offenders in respect of the offending covered by Lapatis’ charge 1. Stakic had no involvement in Lapatis’ offending the subject of Lapatis’ charges 2 to 4.
The appellant contends that the sentences imposed upon Lapatis and Stakic are manifestly inadequate. The appellant’s ground of appeal in the instance of Lapatis is expressed in the following terms:
The individual sentences imposed, the orders for cumulation and the resulting total effective sentence and the non‑parole period are each manifestly inadequate.
In the case of Stakic, the appellant’s ground of appeal complains that:
The individual sentence imposed and the resulting total effective sentence and the non‑parole period are each manifestly inadequate.
For reasons that follow, we consider that both appeals should be allowed. Lapatis and Stakic must be resentenced.
Offending
As is apparent, each of Lapatis and Stakic were sentenced on different dates and by different judges; Lapatis first, then Stakic. Detailed prosecution openings were filed in each instance. As will become apparent, there were differences — mostly fairly minor — between the cases presented against Lapatis and Stakic when it came to their joint offending. What follows is a summary of the cases marshalled against each respondent.[6]
[6]The main area where there existed a material difference between each offender concerned the amounts that the Crown said each respondent had actually received from the offending. This difference will become evident when the plea hearings of each respondent are examined below. Each respondent essentially suggested that the lion’s share of the proceeds went to the other. As will be seen, in Lapatis’ case the Crown did not suggest that he had ultimately received any particular amount as a result of his offending. In Stakic’s case, the Crown largely accepted what Stakic said in this regard.
The offending committed jointly by Lapatis and Stakic concerned Mr Robin and Mrs Roslyn Nagorcka (‘Mr and Mrs Nagorcka’). Mr and Mrs Nagorcka owned and managed a motor inn in suburban Melbourne. Stakic and his wife were long‑term residents at the inn. Lapatis knew the Stakics and would often visit them at the inn. By 2013, Lapatis had also become acquainted with Mr and Mrs Nagorcka.
Lapatis and Stakic convinced Mr and Mrs Nagorcka that Stakic was a wealthy property developer. This was untrue. They told Mr and Mrs Nagorcka that Stakic had had his identity stolen. This was also untrue. Lapatis and Stakic told the Nagorckas that as a consequence of the identity theft Stakic was involved in a case in the High Court. Mr and Mrs Nagorcka were told that Stakic had had his assets frozen. They were given to believe that should Stakic be successful in the High Court case he would regain access to his wealth and assets. In truth, Stakic had not had his assets frozen and there was no case in the High Court. Lapatis and Stakic told the Nagorckas that the proceeding in the High Court had been ‘suppressed’ and thus could not be referred to publicly. Lapatis and Stakic told Mr and Mrs Nagorcka that they needed funds for payments associated with the High Court case, including daily court fees. Mr and Mrs Nagorcka were persuaded to make financial contributions in order that the High Court litigation could continue.
On 23 December 2013 Mr and Mrs Nagorcka commenced making financial transfers into Lapatis’ bank account. They made many such payments directly to Lapatis by means of cash or direct electronic transfer over the period from 23 December 2013 to 12 September 2016. On 19 May 2014 Mr and Mrs Nagorcka commenced transferring money to Stakic. Many payments by the Nagorckas were made over the ensuing years to accounts associated with Lapatis and Stakic, including an account that was associated with Stakic’s sister.[7] Mr and Mrs Nagorcka were told that they would be repaid; they understood that they were making a loan.
[7]It was not alleged that Stakic’s sister was in any way involved in the offending.
During 2015, Mr and Mrs Nagorcka’s financial resources started to run low. The respondents encouraged them to ask family members and friends for money. Again, the money was required to assist with the maintenance of the fictitious High Court proceeding. Mr and Mrs Nagorcka were able to secure contributions from Mr Nagorcka’s brother, Terence Nagorcka. Terence’s wife, Cheryl Nagorcka, was also persuaded to help. In all, Terence Nagorcka contributed approximately $1.5 million to the respondents’ cause, through the auspices of Mr and Mrs Nagorcka.[8] Mr and Mrs Nagorcka were also able to secure financial contributions from their sons, Bryan Nagorcka and Dale Nagorcka. Dale contributed in excess of $147,000, and Bryan contributed $39,250.[9]
[8]The Crown summary in the Stakic matter alleged that Terence Nagorcka and Cheryl Nagorcka contributed approximately $1.08 million.
[9]The Crown summary in the Stakic matter alleged that Bryan Nagorcka’s contribution was in the amount of $42,030. It made no reference to any contributions made by Dale Nagorcka.
Others acquainted with Mr and Mrs Nagorcka made contributions upon their request: Raymond Baker contributed $37,900; Gwenda Littlewood $48,022;[10] Lynette Harman $15,850; James Lenehan $25,600; Glen Baker $27,300; and Mrs Nagorcka’s sister, Narelle Cassidy, contributed $2,050.
[10]The Crown summary in the Stakic matter put the amount at $45,022.
The scheme hatched by Lapatis and Stakic was brazen and manipulative. There were times, for instance, when Terence Nagorcka expressed a degree of reluctance concerning the financial contributions that he was being asked to make. On such occasions, Terence received calls from a man who identified himself as ‘Frank Frys QC’, who informed Terence that he was a ‘judge’ at the ‘Werribee Court’. He told Terence that he was aware of Stakic’s High Court case, and encouraged Terence to continue paying the daily court fees associated with it. He told Terence that the money would be returned ‘at the push of a button’. It was later established that the calls made by ‘Frys QC’ emanated from Lapatis’ telephone. It was alleged in the case against Lapatis that he had made these calls.
Cheryl Nagorcka found herself the recipient of a similar telephone call. She received a call from a person calling himself ‘George Brandis QC’, who encouraged Cheryl to pay $15,500 so that the High Court case could come to a conclusion. This call was, again, able to be linked to Lapatis’ telephone.[11]
[11]The real George Brandis QC had held the position of the Commonwealth Attorney‑General. At the time of the offending he was Australian High Commissioner to the United Kingdom.
Terence Nagorcka was sent text messages from Lapatis’ phone. The purpose of these texts was to persuade him of Stakic’s wealth and that this wealth had grown to $1 billion.
Over the charged period,[12] Lapatis and Stakic were paid an amount of $2,949,499 by Mr and Mrs Nagorcka,[13] by means of hundreds of electronic transfers to bank accounts associated with the respondents. Cash was also paid on a number of occasions, but these payments were unable to be quantified. All financial contributions were made in good faith on the basis of the false story that had been peddled by Lapatis and Stakic. All financial contributors believed that their money would ultimately be returned.
[12]Between 1 December 2013 and 2 June 2017 in the instance of Lapatis’ charge 1; and between 1 December 2013 and 10 January 2018, in the instance of Stakic.
[13]The Crown opening in the Stakic matter made reference to $2,949,399. Senior counsel for the appellant at the oral hearing of this matter told the Court that the amount was $2,949,499.
This was the offending the subject of Lapatis’ charge 1, and Stakic’s only charge.
The offending the subject of Lapatis’ charge 2 commenced in 2014. Lapatis asked his friend, Daniel Ward, for money. Lapatis said that he required the money in order to fund a property dispute in Greece in which he was involved. Lapatis told Mr Ward that the money was needed for legal reasons, to bring about the release of certain property. Lapatis told Mr Ward that once the dispute in Greece was settled, Mr Ward’s money would be returned with interest. Lapatis convinced Mr Ward that the property involved was ‘huge’ and that Mr Ward would receive a couple of million dollars. Believing this, Mr Ward paid $21,725 to Lapatis over a six‑week period commencing on 1 October 2014. Lapatis kept requesting money from Mr Ward. Mr Ward’s savings were ultimately depleted. There was no property dispute in Greece.
The offending the subject of Lapatis’ charge 3 concerned Albert McCormack. Mr McCormack was Daniel Ward’s friend. During 2014, Mr Ward asked Mr McCormack for $5,000. This request was made on the basis that the amount would be returned once Mr Ward was no longer suffering financial hardship. Mr McCormack paid the money to Mr Ward. Mr Ward then passed the money to Lapatis in the belief that once the property dispute in Greece settled, everyone would be repaid. In March 2015, Mr McCormack paid Mr Ward another $5,000; this amount was also forwarded to Lapatis. Mr Ward told Mr McCormack that the money was going to a close friend who was involved in a dispute that was due to be settled. Mr McCormack trusted Mr Ward. Throughout 2015, Mr McCormack transferred a total of $150,000 to Mr Ward, normally in cash.
Lapatis subsequently requested money from Mr McCormack directly, and told Mr McCormack that all amounts would be refunded once there was success in court, which he said was assured. Lapatis met with Mr McCormack regularly in order to discuss the court case. He told Mr McCormack that court officials, and even judges, were part of a conspiracy which had caused the proceeding continuously to be adjourned.
In purported proof of his wealth, Lapatis provided Mr McCormack with a CBA deposit slip. This slip purported to describe a balance of $12,000,041. Again, this was false. Lapatis also showed Mr McCormack multiple vehicle fines. These apparently required payment before there could be a release of the relevant funds. Lapatis did reimburse Mr McCormack in an amount of $200,000. There were some 26 phone calls between Lapatis and Mr McCormack in January and February of 2019, during which Lapatis continuously deceived Mr McCormack. Lapatis persuaded Mr McCormack that his money would be refunded and promised that the court case was close to resolution.
Between 2 July 2015 and 22 December 2016, Mr McCormack made 33 payments directly to Lapatis. These payments were distinct from those that Mr McCormack had made indirectly through Mr Ward. The total amount obtained by Lapatis, through his commission of charge 3, was $146,050.
Lapatis’ charge 4 offending involved a taxi driver, Chandon Chopra, who became friends with Lapatis in 2014. By this stage, Mr Chopra had assumed the role of Lapatis’ regular driver. Lapatis asked Mr Chopra for money during the trips that they took, which Lapatis said he needed in order to release funds tied up in a successful court case in which he was involved. Lapatis showed Mr Chopra a bank statement which purportedly revealed a significant financial balance that was unable to be accessed.
During the early part of 2016, and as a result of Lapatis’ deception, Mr Chopra gave Lapatis a total of $16,930 in cash. Mr Chopra exhausted an amount of $3,000 that he had accumulated by way of savings, and then borrowed the balance from a friend.
Stakic was arrested on 6 February 2019. He denied to police that he had been involved in any wrongdoing. Lapatis was arrested and interviewed by police on 12 February 2019. Lapatis made admissions but also sought to blame Stakic.
The pleas
Lapatis
Lapatis’ plea was brief. Defence counsel characterised Lapatis’ prospects of rehabilitation as ‘not entirely poor’. It was submitted that Lapatis had not received a high level of enrichment, and that such money as he did receive was spent on drugs, paying off debts and other ‘poor lifestyle choices’. Counsel submitted that the money derived from the fraudulent scheme ‘mostly went to the Stakics’. He conceded that Lapatis’ moral culpability was ‘moderate to high’. It was also conceded that ‘it can’t be said that [Lapatis’] was an early plea of guilty’, the case having resolved just prior to commencement of a committal.
The prosecutor submitted that the charge 1 offending was by far the most serious. The Crown did not suggest that Lapatis had received any particular amount as a result of his offending. It was submitted that Lapatis’ offending had had a ‘significant’, ‘tragic’ and ‘humiliating’ impact upon the various victims. It was put that it was an aggravating feature of Lapatis’ offending that victims were advised not to speak out about the fictional High Court case lest they breach the suppression order and jeopardize the prospect of any return of their money. It was contended that Lapatis had not ceased his offending voluntarily. Emphasis was placed on Lapatis’ ‘significant relevant criminal history’ which spanned some 15 years and had seen Lapatis imprisoned for the commission of offences of dishonesty. The Crown relied on two cases that were said to be comparable: Director of Public Prosecutions v Waij (‘Waij’)[14] and Kenyeres v The King (‘Kenyeres’).[15] These cases will be examined in greater detail below.
[14][2021] VCC 1350 (‘Waij’).
[15][2023] VSCA 25 (‘Kenyeres’).
Stakic
Counsel for Stakic relied on what he described as a seven‑year delay since Stakic’s offending ceased. It was submitted that this delay had been caused — at least in part — by Mr and Mrs Nagorcka’s reticence in assisting investigating officials. Rather than assist police voluntarily, Mr and Mrs Nagorcka were required to undergo compulsory examination in the Magistrates’ Court.
It was submitted that Stakic had been living in virtual poverty. He had been on bail for five years. Counsel relied on Stakic’s advanced age — 74 at the time of sentence — and lack of prior convictions. It was submitted that Stakic was in poor health and had had a heart attack in 2018 which had required the insertion of two stents. Stakic took multiple forms of medication. He had an enlarged prostate; he was on a waiting list for a knee replacement; and he suffered from anaemia. It was argued that Stakic’s state of health would make prison more burdensome for him.
Counsel submitted that Stakic had only received around $203,000 of the money obtained through the defrauding of Mr and Mrs Nagorcka. Counsel contended that the rest of the money had gone to Lapatis. Counsel argued that Stakic had been ‘used’ by Lapatis and that Stakic’s role in the offending was lesser than Lapatis’. As counsel described it, Stakic had been ‘taken in’ — at the age of 63 — by a well‑practised fraudster.
The Crown conceded that Stakic had played a lesser role than Lapatis in their joint offending. But, as the prosecutor put it, Lapatis was only a ‘bit more involved’. The Crown submitted that Stakic’s role was still ‘significant’. Importantly, the Crown accepted that Stakic had only received a little over $203,718 for his part in the scheme to defraud Mr and Mrs Nagorcka. It was conceded by the Crown, in Stakic’s case, that this was significantly less than had been received by Lapatis. The Crown alleged that Stakic received approximately $1.3 million in deposits into his accounts, with around $1.2 million coming from Mr and Mrs Nagorcka and their family. Some $709,844 was received from Mr and Mrs Nagorcka and their family and then deposited into Stakic’s sister’s account. This amount was withdrawn in cash and could not be traced. It was accepted, in Stakic’s case, that Lapatis had received $958,680 from Mr and Mrs Nagorcka and their family. The Crown alleged that a total of $1,069,390 was then transferred from Stakic’s account to Lapatis’ account. Stakic withdrew the $203,718.10 referred to above in cash for his own purposes.
It was submitted by the Crown that Stakic had facilitated the obtaining of the entire $2.9 million. It was put that he had introduced Mr and Mrs Nagorcka to Lapatis and that he had maintained the necessary ruse for the entire period of the joint offending. The Crown accepted that Stakic’s state of health would make service of a prison sentence more burdensome.
Reasons for sentence
Lapatis
Judge Lauritsen outlined Lapatis’ criminal history in the following terms:
Between 9 August 1994 and 13 April 2015, you have appeared in a criminal court on six occasions and have been found guilty or convicted of 76 charges. You have been sentenced to imprisonment on three occasions which included a sentence of imprisonment to be served by way of an intensive correction order. Later, you were ordered to serve the unexpired portion of that sentence. Your longest sentence of imprisonment was 14 months.[16]
[16]DPP v Lapatis [2023] VCC 1618, [14] (‘Lapatis reasons’).
The judge noted that ‘[t]he overwhelming majority of [Lapatis’] charges have been for dishonesty offences, in particular, the offence of obtaining property by deception.[17]
[17]Lapatis reasons, [15].
The judge described the effect that Lapatis’ offending had had on his victims. Terence Nagorcka considered that the offending had destroyed his relationship with Mr Robin Nagorcka. Terence Nagorcka had had to work very hard to make up for the losses that he had sustained and had retreated from the life of his community. Cheryl Nagorcka’s relationship with Terence Nagorcka had suffered also. At one stage Cheryl Nagorcka had been forced to accept charity. This had been a humiliating experience. Lapatis’ offending had caused all the victims a substantial level of stress.[18]
[18]Lapatis reasons, [17]–[22].
Lapatis was 53 at the time of sentence. He had had an excellent upbringing, but — unlike his siblings — he had not managed to excel. He left school in Year 11 with the ambition of playing AFL football; but injury had prevented this possibility.[19] Lapatis had worked in the construction industry. He had developed a level of expertise as a ‘confined space specialist’ working in the gas industry. He had, however, not worked for 20 years on account of drug addiction. He had struggled in the past with heroin.[20]
[19]Lapatis reasons, [23]–[25].
[20]Lapatis reasons, [26]–[29].
Lapatis was diagnosed by Dr Hannah Dawson, a forensic psychologist, as suffering from major depressive and generalised anxiety disorders. Dr Dawson assessed Lapatis’ general risk of re‑offending as moderate, and capable of reduction through treatment.[21]
[21]Lapatis reasons, [32]–[35].
Judge Lauritsen emphasised the need for specific deterrence, in view of Lapatis’ criminal history, and in particular, his previous convictions for the offence of obtaining property by deception.[22] The judge characterised Lapatis’ criminal history as ‘extensive and relevant’.[23] The judge considered that Lapatis’ pleas of guilty were evidence of his remorse.[24] The judge concluded that any desire on Lapatis’ part not to offend in the future ‘does not appear to be due to the realisation of the damage that [he had] done to the victims’.[25] Nevertheless, the judge considered that, ‘overall’, Lapatis’ prospects of rehabilitation were ‘positive’.[26]
[22]Lapatis reasons, [38].
[23]Lapatis reasons, [39].
[24]Lapatis reasons, [40].
[25]Lapatis reasons, [40].
[26]Lapatis reasons, [41].
The judge noted that all of the charges, to which Lapatis had pleaded guilty, were ‘rolled‑up’ charges, and that these charges — in total — spanned a period of five years.[27] Lapatis’ motive was ‘greed’. The requests that he made for money extended well beyond the particularised charge dates. As the judge put it: ‘This is far from a voluntary cessation of your deceitful conduct’.[28] The judge emphasised that Lapatis’ offending had exhausted the savings of certain of his victims, and that — in the case of Mr Chopra for example — this must have been obvious to Lapatis.[29]
[27]Lapatis reasons, [42].
[28]Lapatis reasons, [43].
[29]Lapatis reasons, [46].
As to the timing of Lapatis’ plea, the judge noted that it had occurred ‘mid‑way’ through the criminal process. By pleading guilty the judge accepted that Lapatis had taken responsibility for his offending and had practically assisted the criminal justice system. The judge considered that Lapatis was entitled to a greater discount due to the backlog of cases that had built up during the COVID‑19 pandemic.[30]
[30]Lapatis reasons, [48]–[51].
The judge considered that Lapatis’ moral culpability was ‘high’.[31]
[31]Lapatis reasons, [53].
Stakic
In sentencing Stakic, Judge McInerney noted that Stakic was aged 74 at the time of sentence. He was aged between 63 and 67 when he offended. Stakic was now an old‑aged pensioner.[32] The judge took into account that the charge Stakic faced was a ‘course of conduct’ charge.[33]
[32]DPP v Stakic [2024] VCC 1421, [3] (‘Stakic reasons’).
[33]Stakic reasons, [4]. See also cl 4A of sch 1 of the Criminal Procedure Act 2009.
The judge observed that Stakic had no prior convictions. He considered that Stakic had ‘worked hard and consistently’ from an early age.[34]
[34]Stakic reasons, [21], [23].
The judge took into account the fact that Stakic had personally received $203,718 as a result of his offending, which had apparently been spent on living expenses. A sum of $1,069,390, that was deposited in Stakic’s account, had ultimately been transferred to Lapatis. A further amount of $709,844 deposited in Stakic’s sister’s account was withdrawn in cash and could not be traced.[35]
[35]Stakic reasons, [10]–[11].
The judge observed that the Crown had accepted that Stakic’s was the ‘lesser role’ in the offending committed upon Mr and Mrs Nagorcka. Nevertheless, he recognised that it was Stakic who had introduced Lapatis to Mr and Mrs Nagorcka. Most of the money taken had not been returned.[36]
[36]Stakic reasons, [14].
Judge McInerney considered that Stakic’s culpability was to be classified at a ‘high level’. Stakic had offered ‘no explanation’ for his crime. The judge accepted that Lapatis was, however, the ‘prime mover’.[37]
[37]Stakic reasons, [16], [17], [19].
In mitigation, the judge accepted that Stakic’s plea of guilty was ‘made at the earliest time’ and was of utilitarian value. Stakic had also been ‘subject to delay’. The judge characterised the delay as being between four and five years — a delay that the judge considered ‘excessive’ and had been partly caused by Mr and Mrs Nagorcka’s failure to co‑operate with authorities.[38]
[38]Stakic reasons, [20], [22].
The judge considered that all of Stakic’s medical issues seemed readily treatable, but that a period of imprisonment would weigh more heavily on him than a person in good health.[39] The judge said that he intended to impose ‘a merciful sentence’. He took into account ‘parity’ and the fact that Lapatis had played the ‘larger role’ in the offending.[40]
Submissions
[39]Stakic reasons, [24].
[40]Stakic reasons, [25]–[26].
Appellant — Lapatis
The appellant characterised Lapatis’ offending as ‘protracted, persistent, and callous’ given that it had spanned in excess of five years and had directly impacted upon separate victims who had lost a combined total of almost $3 million. It was ‘serious criminal conduct of a high order’ committed by a ‘persistent recidivist with a substantial and relevant dishonest criminal history’. The offending had only ceased when people ran out of money, or when police became involved. Whilst the value obtained by Lapatis could not be determined, much of the money obtained had passed through either a bank account that could be associated with him or one that was associated with Stakic’s sister.
It was submitted that the sentences imposed upon Lapatis did not reflect the ‘objective gravity’ of the offending and the fact that — in each instance — the charge on the indictment was a ‘rolled‑up’ charge encapsulating many instances of criminality. In oral submissions the appellant characterised the sentence imposed on Lapatis as ‘startlingly low’. This was despite the single 10‑year maximum penalty which applied to all of the offending associated with charge 1. It was conceded that this single maximum penalty would legitimately have had a ‘compressing effect’ upon the sentence that was ultimately imposed in respect of charge 1.
It was submitted that the sentences imposed failed to reflect Judge Lauritsen’s conclusion that Lapatis’ moral culpability was ‘high’. Lapatis’ motivation was one of ‘greed’. The sentences failed to give effect to specific and general deterrence, community protection, denunciation and just punishment.
The appellant emphasised Lapatis’ ‘significant criminal history’ which spanned from 2001 to 2015. It was emphasised that during this period Lapatis had been convicted of ‘no less than 63 charges of obtaining property by deception’ and that Lapatis had previously been imprisoned for offending of this nature. The present offending was, so the appellant submitted, a ‘substantial escalation in offending’ on Lapatis’ part.
In oral submissions the appellant noted that some of Lapatis’ present offending had been committed in breach of a community correction order that had earlier been imposed. It was acknowledged, however, that in the sentencing court the prosecution had not relied on this breach as a matter that aggravated Lapatis’ present offending.
When it came to Lapatis’ prospects of rehabilitation, the appellant noted that Dr Dawson had opined that Lapatis presented as a moderate risk of reoffending. His own counsel had only characterised his prospects of rehabilitation as ‘not entirely poor’. Nevertheless, the sentencing judge was prepared to conclude that Lapatis’ prospects of rehabilitation were ‘positive’. The appellant submitted that this finding by the sentencing judge was ‘not supported by the evidence’ and thus was ‘not properly available’. It was submitted that this erroneous finding had likely contributed to the sentencing discretion miscarrying in the present case.
Similarly, it was contended that it was ‘hard to reconcile’ the sentencing judge’s statement that ‘[u]sually a plea of guilty is taken as evidence of remorse and I accept it is so in [Lapatis’] case’, with the judge’s observation — found in the same paragraph of the sentencing reasons — that Lapatis’ purported desire not to re‑offend ‘does not appear to be due to the realisation of the damage [he had] done to the victims’.[41] The appellant submitted that while Lapatis’ pleas of guilty possessed a utilitarian value, a ‘bare plea of guilty will, without more, rarely evidence true remorse’. It was submitted that Lapatis’ failure to demonstrate insight into the plight of his victims indicated that the sentencing judge had given undue weight to the plea of guilty as evidence of remorse.
[41]Lapatis reasons, [40].
It was submitted that Lapatis had ‘very little’ to rely on in mitigation beyond the utilitarian value of his pleas, which was enhanced due to the delays caused by the COVID‑19 pandemic.
As to current sentencing practices, the appellant submitted that the total effective sentences of 7 years and 4 months’ imprisonment imposed in Kenyeres, and the 8 years and 4 months’ imprisonment imposed in Waij, assisted in demonstrating how ‘out of kilter’ the sentences imposed on Lapatis were with such practices.
Appellant — Stakic
The appellant submitted that the sentence imposed upon Stakic failed to give effect to the relevant sentencing purposes of general deterrence, community protection, denunciation and just punishment.
It was conceded that Stakic was not in a relationship of trust with his victims, but in a case like the present, general deterrence was nonetheless said to take priority and factors such as prior good character, excellent prospects of rehabilitation and advanced age needed to be afforded less weight in the sentencing calculus.
The appellant characterised Stakic’s offending as ‘objectively serious’ for the reasons already emphasised in submissions concerning Lapatis. As with Lapatis, Stakic’s offending was characterised as ‘protracted, persistent and callous’. Although Lapatis was ‘the prime mover’, with Stakic playing a ‘lesser role’, Stakic remained ‘deeply involved’. It was accepted that Stakic had only received some $203,718 for his part of the enterprise concerning Mr and Mrs Nagorcka.
The appellant acknowledged that the entry of Stakic’s plea had occurred, according to Judge McInerney, at the earliest opportunity. It was also acknowledged that, at 74, Stakic had no criminal history and that there had been considerable delay. Although Stakic’s state of health would make service of his sentence more burdensome, it was submitted that Stakic’s condition was ‘stable’ and that all his health problems were ‘readily treatable’. It was put that the factors relied on in mitigation by Stakic could only go ‘so far’ and that a ‘proper synthesis of these matters [did] not compel a conclusion that some extra form of mercy or an unduly lenient sentence was warranted’.
It was argued that application of the parity principle could not justify a manifestly inadequate sentence such as had been imposed upon Stakic in the present case. Nevertheless, it was conceded that if this Court did not increase Lapatis’ charge 1 sentence, there would be no basis to increase the sentence imposed upon Stakic.
It was submitted that, properly taking into account all relevant circumstances, it was not open in the sound exercise of the sentencing discretion to impose the sentence that Stakic had received. This sentence, it was submitted, was wholly outside the range of sentences available in the reasonable exercise of the sentencing discretion.
Lapatis
On behalf of Lapatis it was argued that Judge Lauritsen had properly measured the objective gravity of the offences as well as Lapatis’ moral culpability. The judge had found that Lapatis’ moral culpability was ‘high’. But he had not found Lapatis’ moral culpability to be any greater than Stakic’s, and no submission had been made to this effect by the prosecutor on the plea.
It was put that the sentencing judge had placed appropriate weight on the value of Lapatis’ pleas and, in particular, the significance of the pleas when it came to remorse.[42] It was submitted that it was apparent from as early as 12 February 2019, when police interviewed Lapatis, that his case would resolve. Lapatis had made significant admissions and his matter had in fact resolved on the first day of a committal held in the Magistrates’ Court without the need for any witness to give evidence. Lapatis had pleaded guilty to significantly fewer charges than had originally been alleged against him. The sentencing judge found that the pleas had occurred at a ‘mid‑way’ stage in the criminal proceeding.
[42]Lapatis relied in this respect on the observations of Eames JA (with whom Winneke P and Charles JA agreed) in R v Tasker (2003) 7 VR 128, 133 [24]; [2003] VSCA 190.
By contrast — it was submitted — Stakic had conducted a contested committal, and his case had been listed for trial on several occasions. Lapatis’ plea pre‑dated Stakic’s by a little over a year. It was emphasised that Judge Lauritsen had afforded Lapatis a significant utilitarian benefit for his pleas of guilty given that they had occurred at a stage when the criminal lists were still burdened with the backlog of cases caused by the COVID‑19 pandemic.
Moreover, it was submitted that Lapatis’ pleas were ‘highly significant’ in view of Mr and Mrs Nagorcka’s unwillingness to assist investigative officials. The pleas thus indicated that Lapatis had taken responsibility for his offending. In all the circumstances, it was therefore well open to the judge to find that Lapatis’ pleas were indicative of remorse. In any event, it was submitted that the appellant had not attacked that finding by means of a ground alleging specific error. Dr Dawson had, in her report, observed that Lapatis felt shame, embarrassment and disgust as a result of his offending; he felt a need to ‘pay the consequences’. Lapatis had told Dr Dawson that he wished he could pay the money back; he experienced a sense of relief that the victims would see him get what he deserved.
It was submitted that it was open to Judge Lauritsen to conclude — ‘overall’ — that Lapatis’ prospects of rehabilitation were positive. Like the judge’s finding of remorse, this finding could not be challenged in the absence of a ground alleging specific error. But the finding was open in any event, it was submitted. After all, Dr Dawson had assessed Lapatis’ risk of reoffending as moderate and had concluded that he was amenable to treatment. Lapatis had cared for his father during the last years of his life and had ceased using drugs over that period. No submission had been made in the sentencing court that Lapatis’ offending was aggravated by the fact that he had offended in breach of a community correction order.
Counsel emphasised that, in the case against Lapatis, the prosecution had not sought to differentiate between Lapatis and Stakic in terms of role. More particularly, it was not submitted, in the case alleged against Lapatis, that Lapatis was the ‘driver or controlling force’ of the scheme to defraud Mr and Mrs Nagorcka.
Lapatis sought to distinguish the various cases relied on by the prosecution. It was put that these cases were not comparable at all. Whilst the overall quantum obtained in Waij was similar to the amount involved in the present case, there were also a number of important differences. For instance, the offender in Waij had pleaded guilty to 18 separate offences, each relating to a separate victim. Unlike the present case, 11 of those charges were ‘continuing criminal enterprise’ offences; this meant that the applicable maximum penalty was 20 years’ imprisonment. Further, the offender in Waij was neither contrite nor remorseful; that offender’s prospects of rehabilitation were highly problematic, unlike Lapatis’. Kenyeres was also a case involving ‘continuing criminal enterprise’ offences attracting an increased maximum of 20 years’ imprisonment. As in Waij, the offender in Kenyeres was found not to be remorseful. In any event, it was submitted that ‘two cases alone’ do not provide much assistance in determining where a case may fall within the spectrum of seriousness.
Lapatis made reference to other cases which he submitted established that the sentences that had been imposed upon him were not out of kilter with current sentencing practices. He made reference to Director of Public Prosecutions v Lang,[43] a case that concerned an offender who had obtained almost $6.5 million by means of an investment scam. The total effective sentence imposed in that case was 5 years and 3 months’ imprisonment, with a short non‑parole period of 21 months. The offender was of advanced age and there were other features of the case that warranted mitigation.
[43][2020] VCC 759.
In Director of Public Prosecutions v Eliezer,[44] the offender had used her good standing in the community to operate an investment scam which resulted in the loss of large sums of money by numerous victims (who were all friends of the offender). One charge alleged a loss caused to one victim of almost $5 million. The offender was sentenced to a total effective sentence of 5 years and 8 months’ imprisonment, with a non‑parole period of 3 years and 8 months.
[44][2020] VCC 252.
It was submitted that these cases fortified the conclusion that Lapatis’ sentences were not ‘wholly outside the range’ of sentencing options available to the sentencing judge, and supported a submission that nothing had gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion in this instance.
It was submitted that the sentences imposed on Lapatis in respect of charges 2, 3 and 4 were ‘squarely within range on any view’, particularly having regard to the fact that the offending in respect of charges 2 and 3 was ‘interconnected’. Nevertheless, it was accepted that the charge 1 sentence ‘was towards the lower end of the range’, and was ‘indicative of a merciful approach’.
For these reasons, Lapatis submitted that the sentences imposed upon him were not manifestly inadequate. It was submitted that if the Court determined that the sentences imposed on Lapatis were manifestly inadequate, then the residual discretion ought be applied against the appellant.
Stakic
Stakic submitted that, in all the circumstances, the sentence imposed upon him was ‘well within range’.
It was submitted that the proper application of parity considerations left it open to Judge McInerney to impose the sentence that he did. Unlike Stakic, Lapatis had relevant prior convictions involving dishonesty for which he had been imprisoned. Lapatis was the ‘prime mover’ in the offending. Stakic’s financial benefit was ‘relatively modest’. Stakic was considerably older than Lapatis and was in poor physical health.
It was submitted that Stakic had entered his plea on the basis that he had transferred approximately $1.07 million from his account to Lapatis’ account. Stakic had withdrawn only $203,718 for his own purposes. Stakic’s role was the lesser one albeit that his role could still be described as significant.
It was submitted that even if Lapatis’ sentence had to be increased, it would not follow that there would be ‘manifest disparity’ if Stakic’s sentence was to remain the same.
Stakic emphasised that he was not in a ‘position of trust’ when it came to his relationship with any of his victims. He argued that his overall financial benefit from the offending was modest and not indicative of ‘greed’ per se. It was argued that Stakic’s offending was ‘simple and crude’ and betrayed a low level of sophistication.
There were also other ‘powerful mitigating factors’. Judge McInerney had found that Stakic had pleaded guilty at the ‘earliest opportunity’. Stakic was of advanced age, in poor health, lacked prior convictions and had a good work history. Around seven years had elapsed from when he had ceased offending to the point at which sentence was imposed. In all the circumstances, it was open to Judge McInerney to impose a merciful sentence, as he said he would.
Whilst neither party to the appeal which concerns Stakic sought to rely upon comparable cases, during oral argument the Court raised with Stakic’s counsel this Court’s decision in Poursanidis v The Queen (‘Poursanidis’).[45] We will return to Poursanidis later in these reasons. Counsel for Stakic sought to distinguish Poursanidis from the circumstances of the present case.
[45](2016) 50 VR 681; [2016] VSCA 164 (‘Poursanidis’).
Stakic submitted that if the appellant did succeed in establishing manifest inadequacy then the residual discretion ought be applied against the appellant.
Principle
The principles that apply to a Crown appeal against sentence when the error pleaded is manifest inadequacy find expression in Director of Public Prosecutions v Karazisis:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[46]
[46](2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at 637 [1]) (citations omitted); [2010] VSCA 350.
In light of the appellant’s concession that an increase in Stakic’s sentence was contingent upon there being an increase in the instance of Lapatis, it is convenient to commence with consideration of the appeal in the Lapatis matter.
Analysis — Lapatis
What is striking about Lapatis’ offending is the apparent ease with which he was able to convince unsuspecting persons to part with significant sums of money; all in aid of various non‑existent causes. In many instances, people were persuaded to make large financial contributions without, it seems, any promise of a return on their investment. So persuasive was Lapatis that in some cases his victims — having had their savings depleted — felt motivated to call upon family and friends also to assist. Even Lapatis’ taxi‑driver, having been persuaded by Lapatis to hand over his savings, managed to persuade a friend also to contribute a significant sum of money. It may not be an overstatement to suggest that in becoming Lapatis’ trusted acquaintance, a person placed themselves at risk of financial imperilment.
The blandishments of ‘Frank Frys QC’ (judge at the Werribee Court) and ‘George Brandis QC’ invested the scheme to defraud Mr and Mrs Nagorcka with a certain brazen manipulative character. It must be recalled that when Terence Nagorcka and his wife wavered in their resolve, and received persuasive communications from these supposed dignitaries, they did so in the knowledge that they were unable to speak out publicly about their predicament for fear of being in breach of suppression orders associated with the fictitious High Court proceeding.
Lapatis’ offending was repeated and sustained. It extended over years and involved numerous victims. As revealed by the offending the subject of charge 1, it was also offending that netted Lapatis a vast sum of money by way of financial advantage. There was no evidence concerning the precise amount that Lapatis derived from the scheme to defraud Mr and Mrs Nagorcka, but — by any estimation — the identified advantage obtained which stood at just shy of $3 million was substantial indeed. And this was offending committed by a man possessed of a criminal history which included offences of dishonesty for which he had previously been imprisoned. Whilst the relationship between Lapatis and his victims may not have entailed a formal relationship of trust, by any estimation the sentencing considerations of general deterrence, specific deterrence, denunciation and protection of the community all loomed particularly large in the present case.
There was little upon which Lapatis could rely in mitigation. Obviously there were his pleas of guilty and the mitigation that they could cause on account of their utilitarian benefit. The sentencing judge was prepared, also, to view these pleas as evidence of remorse. Indeed, Judge Lauritsen was prepared to view Lapatis’ prospects of rehabilitation as positive.
The charge 1 sentence invites the closest scrutiny. Whether that sentence is manifestly inadequate cannot be determined without close analysis being given to the fact that the entirety of Lapatis’ offending against Mr and Mrs Nagorcka was settled with Lapatis pleading guilty to one ‘rolled‑up’ charge — a charge that embraced hundreds of transactions producing a total financial advantage of over $2.9 million.
The nature of ‘rolled‑up’ charges, and the difference between a ‘rolled‑up’ and ‘representative’ charge, was explained by Charles JA in R v Jones.[47] His Honour observed, relevantly for the purposes of this case, as follows:
[I]n my view, a rolled‑up count is entirely different from a representative count. In [counsel’s] written submissions for the Crown, it was submitted, I think correctly, that rolled‑up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled‑up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel] argued that reasons of public policy dictate the use of rolled‑up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed‑over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled‑up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.[48]
[47][2004] VSCA 68.
[48]Ibid [13] (emphasis added). See also R v Beary (2004) 11 VR 151, 157 [14] (Callaway JA); [2004] VSCA 229.
As can be seen, Lapatis — when it came to charge 1 — was afforded the ‘considerable benefit’ described by Charles JA. The entirety of the charge 1 offending (representing hundreds of fraudulent transfers of money, spaced over a period of years) was ‘compressed’ into a single charge that carried a maximum penalty of 10 years’ imprisonment.
It has been said that ‘a significantly higher sentence is justified on a rolled‑up charge than for a single offence’.[49] Nevertheless, the advantage afforded an offender who pleads guilty to a ‘rolled‑up’ charge may be thought perhaps to be commensurate with the sum of criminality that is embraced by such a charge. For, as Nettle JA observed in R v Samia:
[T]he sentence to be imposed on a rolled‑up count is not invariably the sum of the individual sentences which would have been imposed if the rolled‑up offences had been presented as individual counts.[50]
[49]DPP v Dissanayake [2024] VSCA 320, [92] (Emerton P, Taylor JA and Kidd AJA).
[50][2009] VSCA 5, [12].
In short, the fact that Lapatis’ case settled on the basis that it did meant, particularly in the instance of charge 1, that the single maximum penalty of 10 years’ imprisonment was bound to have a compressing effect upon the sentence that was imposed. This meant that Lapatis would expect to receive a lesser sentence than had the offending against Mr and Mrs Nagorcka been charged, for example, on ‘rolled‑up’ charges by reference, say, to each year that the offending against Mr and Mrs Nagorcka had taken place.
Senior counsel for the appellant did not dispute the compressing effect that the single maximum of 10 years’ imprisonment would have had upon the charge 1 sentence. Senior counsel’s submission was that, despite this compressing effect, the charge 1 sentence was still manifestly inadequate.
If one was to ignore the particular manner in which charge 1 was framed, the sentence imposed on this charge may look odd when compared to the sentences imposed in Kenyeres and Waij. After all, in Kenyeres the offender — over a period of some 17 months — deceived seven persons out of significant amounts of money by falsely representing to those persons that they were investing in legitimate business ventures. Each victim was deprived of hundreds of thousands of dollars. The amounts ranged from $655,000, in the instance of one victim, to $132,000 in the instance of another. The total amount obtained by the offender was over $1.6 million. Upon resentence by this Court, the offender in Kenyeres was sentenced to a total effective sentence of 7 years and 4 months’ imprisonment with a non‑parole period of 4 years and 10 months.[51]
[51]Kenyeres [2023] VSCA 25, [13], [24], [75] (T Forrest JA and J Forrest AJA).
Similarly, in Waij, the offender falsely presented himself as a licensed financial advisor and stockbroker. He made misrepresentations to a large number of people with the aim of convincing them to invest money in legitimate ventures. In fact, the offender used the funds obtained to pay amounts he owed to other investors, or to meet his own personal expenses. The offender had, in effect, conducted a ‘Ponzi’ scheme.[52] Over a 10‑year period the offender fraudulently obtained a total of around $2.7 million. He was sentenced in the County Court to a total effective sentence of 8 years and 4 months’ imprisonment with a non‑parole period of 4 years, 2 months and 21 days.[53]
[52]Waij [2021] VCC 1350, [6]–[12] (Judge Trapnell).
[53]Ibid [142], [192].
But in neither Kenyeres nor Waij was a vast amount of offending (extending over years and involving millions of dollars) gathered together under one single ‘rolled‑up’ charge carrying a maximum penalty of 10 years’ imprisonment. To the contrary, in each of Kenyeres and Waij the number of charges and their designation, in some instances, as ‘continuing criminal enterprise’ offences (carrying a maximum penalty of 20 years’ imprisonment) ensured that the sentencer enjoyed far greater flexibility in terms of the total effective sentence to be imposed.
In the end, we have come to the view that the sentence imposed on Lapatis’ charge 1 is manifestly inadequate. It stands wholly outside the range of sentences that were reasonably open to be imposed. Notwithstanding the matters in mitigation, as found by Judge Lauritsen, and despite the compressing effect upon sentence of charge 1 being framed as a ‘rolled‑up’ charge, we consider that the sheer volume of sustained deception committed by Lapatis upon Mr and Mrs Nagorcka called for a sentence on charge 1 well in excess of 4 years’ imprisonment. Unless the residual discretion can be exercised against the appellant, we consider that the sentence on charge 1 should be set aside and Lapatis resentenced to a term of 6 years’ imprisonment on that charge.
That leaves the sentences imposed upon Lapatis for charges 2 to 4, and the orders for cumulation (all 3 months in duration) made in respect of the individual sentences imposed on those charges. We are not persuaded that the sentences on charges 2 to 4, and the orders for cumulation made by Judge Lauritsen in respect of those sentences, are manifestly inadequate. Again, unless the residual discretion is to be applied, upon resentence Lapatis’ total effective sentence will be 6 years and 9 months’ imprisonment, and it will be ordered that Lapatis serve a period of 4 years and 6 months before becoming eligible for parole.
Analysis — Stakic
Stakic had far more weighty matters that he could rely upon, most prominently his age, lack of prior convictions and somewhat compromised state of health. There was also the fact of his lesser role and a positive finding that he had only benefitted from his offending to the value of $203,718. Stakic also had the benefit of a finding by Judge McInerney that his plea was an early one. Unlike Lapatis, Stakic did not plead guilty to a ‘rolled‑up’ charge. His was a ‘course of conduct’ offence.[54] But essentially the same pleading issue that arose in Lapatis’ case arises in the instance of Stakic.
[54]See Criminal Procedure Act 2009, sch 1 cl 4A.
In Poursanidis this Court examined how a sentencing court is to approach the task of sentencing an offender for a ‘course of conduct’ charge. In short, the task will resemble the approach to be applied in the instance of a ‘rolled‑up’ charge. Thus, pursuant to s 5(2F) of the Sentencing Act1991, in sentencing an offender for the ‘incidents of the commission of an offence included in a course of conduct charge’, a court ‘must impose a sentence that reflects the totality of the offending that constitutes the course of conduct’ and ‘must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence’.[55]
[55]Poursanidis (2016) 50 VR 681, 682 [5]–[8] (Weinberg JA, Priest JA agreeing at 685 [32]); [2016] VSCA 164.
In Poursanidis the Crown submitted that in sentencing for a ‘course of conduct’ charge the maximum penalty for the offence in question should no longer be viewed as a ‘yardstick’ by which the gravity of the offending is to be assessed. The Court rejected that submission. The Court determined that in assessing the gravity of offending in the instance of a ‘course of conduct’ charge, the task of the sentencer should be governed by ‘orthodox sentencing principles’.[56] In particular, the Court in Poursanidis held that
close attention must be given to the maximum sentence available for the offence charged. The maximum remains a ‘yardstick’ by which the gravity of the offending is to be assessed, even though the offence itself is charged in ‘course of conduct’ terms.
Thus the fact that there may have been dozens, or as in the present case, even hundreds of individual acts of deception does not mean that the maximum sentence available for the charge of obtaining a financial advantage by deception, 10 years’ imprisonment, could legitimately be imposed where there were present significant mitigating circumstances.
The question whether a 10 year maximum affords adequate scope for punishing conduct as grave as that perpetrated by the appellant in this matter is one that should be considered with great care by the Crown when determining whether to negotiate a plea on the basis of a single charge of ‘course of conduct’ offending.[57]
[56]Ibid 683 [11].
[57]Ibid 683 [11]–[13]. The offender in Poursanidis pleaded guilty to a single charge of obtaining a financial advantage by deception carrying a maximum penalty of 10 years’ imprisonment. The offender defrauded one victim of around $4.9 million. He deceived the victim by persuading the victim to invest in business ventures that were false. The offender committed some 541 separate acts of dishonesty over a seven‑year period. The offender was sentenced to 7 years’ imprisonment with a non‑parole period of 4 years and 6 months. The offender unsuccessfully appealed on the basis that the sentence was manifestly excessive.
Again, as with ‘rolled‑up’ charges, the decision to accept a plea to a single ‘course of conduct’ charge may, depending on the amount of criminality involved, have a compressing effect upon the sentence that is to be imposed. That is why ‘great care’ must be exercised by the Crown before it accepts a plea to a single ‘course of conduct’ offence. As with Lapatis, the appellant during oral argument accepted that the single maximum penalty of 10 years’ imprisonment had to have a compressing effect on the sentence imposed on Stakic.
Nevertheless, notwithstanding the more significant mitigatory matters at Stakic’s disposal, we are persuaded that the sentence imposed upon him of 2 years and 6 months’ imprisonment is manifestly inadequate. The sentence imposed upon Stakic fails adequately to reflect the objective seriousness of the sheer volume and sustained nature of the deception to which Stakic was a party and which was perpetrated upon Mr and Mrs Nagorcka.
Should the residual discretion not be applied in the instance of Stakic, we would set aside the sentence imposed upon Stakic in the County Court, and in lieu thereof, impose a sentence of 3 years and 6 months’ imprisonment. We would order that Stakic serve a period of 2 years and 4 months before becoming eligible for parole.
Residual discretion
As noted above, both Lapatis and Stakic relied on the residual discretion. The nature of the residual discretion was described recently by this Court in Director of Public Prosecutions v Ristic.[58] The Court observed as follows:
[58][2024] VSCA 251.
[T]his Court retains a residual discretion to dismiss a Director’s appeal. Further, the onus rests upon the appellant to persuade the Court that the discretion should not be exercised so as to lead to the dismissal of the appeal.
As has been observed before, the residual discretion is ‘perhaps of uncertain width’ and it is not possible ‘to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case’.
In Karazisis, this Court stated that:
[T]he Court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the Court adequately. For example, the Crown will not ordinarily be permitted to put submissions on appeal that were not advanced below. Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be in range reasonably available to the sentencing judge.
Other factors that have been held to inform the exercise of the residual discretion include whether:
(a) the offender given a non‑custodial sentence has complied with its terms for a significant period;
(b) the offender given a ‘lenient disposition’ has made productive use of that disposition, including by finding ‘employment and stability in their personal life’;
(c) the offending falls short of ‘criminality of the highest order’;
(d) there has been a delay between the imposition of sentence and the Crown appeal; and
(e) the sentence first imposed is of a type which enhances the prospects of the offender’s rehabilitation, particularly where the offender is young.[59]
[59]Ibid [68]–[71] (Beach, Kennedy and Boyce JJA) (citations omitted).
Lapatis submitted that in the event that the Court determined that any sentences imposed upon him were manifestly inadequate, the appellant had failed to show why the residual discretion ought not be applied. Lapatis relied — in this respect — on the fact that he had made admissions to police when he was interviewed in 2019. It was submitted that this proceeding has now been hanging over Lapatis’ head for over five years (including throughout the period of the COVID‑19 pandemic). Reliance was placed upon the fact that Lapatis had cared for his dying father over that period. Lapatis tendered an affidavit from his solicitor which stated, inter alia, that Lapatis had behaved well in custody. It appears that he is now housed in a minimum security prison and is trusted to work in the community.
Stakic also relied upon the residual discretion. It was contended by Stakic that the prosecutor at the plea had not assisted the sentencing judge by referring to comparable cases. When it was drawn to counsel’s attention that in fact no one at the plea had relied on comparable cases, it was then submitted that prosecuting counsel might at least have referred to Poursanidis.
Stakic relied on the sentencing judge’s intention to impose a merciful sentence as well as the delay that had elapsed in his case. Finally, Stakic placed reliance on the fact that he had undergone — whilst in custody — a form of treatment or screening for superficial bladder cancer. Counsel handed up to the Court a hospital document to show that Stakic ‘continues to experience more than the ordinary burdens of imprisonment’.
We would not apply the residual discretion against the appellant in either case.
To the extent that there was delay in each case, this matter was taken into account by both Judge Lauritsen (in the instance of Lapatis) and Judge McInerney (in the instance of Stakic). It was not contended, in either case, that there had been inordinate delay between the imposition of sentence and the hearing of the current appeals.
The fact that Lapatis had made extensive admissions, and that he had cared for his sick father, was also taken into account by Judge Lauritsen. The fact that Lapatis has achieved a minimum security rating whilst in prison, and that he has managed to further his rehabilitation whilst in prison, do not provide a basis to apply the residual discretion.
Although it might have been helpful for the Crown to have referred to Poursanidis at Stakic’s plea, the Crown’s failure to do so does not — in our view — provide a basis to apply the residual discretion. As the appellant conceded in this Court, any increase in Stakic’s sentence is contingent upon there being an increase in the sentence imposed on Lapatis. And to that extent, Judge McInerney’s hands were largely tied by the time that Stakic came to be sentenced. It was not suggested by any party that the relativities between Stakic’s and Lapatis’ original sentences were out of kilter. That means that even had the Crown brought Poursanidis to Judge McInerney’s attention, it is unlikely to have carried much consequence.[60]
[60]Similarly, given the need in this Court to ensure appropriate relativities between the respective sentences imposed on each of Stakic and Lapatis, Poursanidis has been of no assistance as a comparable case.
The current state of Stakic’s health was taken into account by Judge McInerney. There is no suggestion that Stakic’s health has worsened materially; nor is it suggested that he is not receiving a level of medical care in custody less than he might expect in the community.
Conclusion
Both appeals against sentence should be allowed. The sentences imposed in the County Court upon Lapatis and Stakic must be set aside. They must each be resentenced in the terms foreshadowed above. For the purposes of s 6AAA of the Sentencing Act 1991, we declare that, but for their pleas of guilty, we would have sentenced Lapatis to 9 years’ imprisonment, with a non‑parole period of 6 years and 6 months, and Stakic to 4 years and 9 months’ imprisonment, with a non‑parole period of 3 years and 6 months.
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