Director of Public Prosecutions v McLeod
[2014] VCC 512
•15 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-09-01179
CR-14-00580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMILY McLEOD |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2014 | |
DATE OF SENTENCE: | 15 April 2014 | |
CASE MAY BE CITED AS: | DPP v McLeod | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 512 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Obtaining property by deception
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958
Cases Cited:R v Do [2007] VSCA 308; R v Harris [2009] VSCA 181; Koch v R [2011] VSCA 435; Dankovicv R [2012] VSCA 255; DPP v Penny [2012] VSCA 203; Phillips v R [2012] VSCA 140
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Porceddu | Solicitors for the Office of Public Prosecutions |
| For the Accused | Mr D Sala | Robert Stary Lawyers |
HIS HONOUR:
1 Emily McLeod, you pleaded not guilty to the following counts which were presented by the Director of Public Prosecutions:
(a)Count 1 – at Kingsbury in the State of Victoria on 24 March 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $10,000, with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing:
(i)that you were a certified practising accountant; and
(ii)that at the time you intended that the said Aleksander Atanasov would receive $900 per week in interest for investing the said cash money for a period of three months.
(b)Count 2 – that at Reservoir in the said State on 28 March 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $1,500 with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that you intended that you would repay the said money and $900 interest by the following Friday.
(c)Count 3 – that at Reservoir in the said State on 28 March 2007, on an occasion other than that referred to in Count 2, you dishonestly obtained from Aleksander Atanasov cash in the sum of $5,000, with the intention of permanently depriving Aleksander Atanasov of the said cash by deception, namely by falsely representing that at that time the said Aleksander Atanasov would receive a further $1,000 for investing the sum of money by the following Monday.
(d)Count 4 – that at Greensborough in the said State on 29 March 2007 you dishonestly obtained from Aleksander Atanasov cash money in the sum of $5,000, with the intention of permanently depriving Aleksander Atanasov of the said cash money by deception, namely by falsely representing:
(i)that you required $5,000 for renovations; and
(ii)that at the time you intended that the said Aleksander Atanasov would be given the sum of $6,000 the following week.
(e)Count 5 – that at Kingsbury in the said State on 2 April 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $4,000, with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that at the time you intended to invest the said cash money and that the said Aleksander Atanasov would receive $1,000 in cash.
(f)Count 6 – that at Reservoir in the said State on 4 April 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $1,300, with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that at the time you intended to invest the said cash money and that the said Aleksander Atanasov would receive $2,500 in interest.
(g)Count 7 – that at Toorak in the said State on 4 April 2007, on an occasion other than that referred to in Count 6, you dishonestly obtained from Aleksander Atanasov cash in the sum of $200, with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that at the time you would invest the said cash money.
(h)Count 8 – that at Kingsbury in the said State between 4 April 2007 and 13 April 2007 you dishonestly obtained from Aleksander Atanasov jewellery, that being a necklace valued at $200 and a ring valued at $800, and cash in the sum of $1,000, with the intention of permanently depriving the said Aleksander Atanasov of the said jewellery and the said cash by deception, namely by falsely representing that at the time:
(i)you needed $50,000;
(ii)you were deficient in funds by $5,000; and
(iii)you were going to obtain a loan on the jewellery, then repay the loan and return the jewellery.
(i)Count 9 – at Kingsbury in the said State between 4 April 2007 and 13 April 2007 you stole jewellery, namely an 18‑carat gold necklace valued at $3,000, belonging to the said Aleksander Atanasov.
(j)Count 10 – at Campbellfield in the said State between 4 April 2007 and 13 April 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $1,000, with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that at that time:
(i)you needed $50,000;
(ii)you were deficient in funds by $5,000.
(k)Count 11 – at Thomastown in the said State between 4 April 2007 and 13 April 2007 you dishonestly obtained from Aleksander Atanasov cash in the sum of $1,000 with the intention of permanently depriving the said Aleksander Atanasov of the said cash by deception, namely by falsely representing that at that time:
(i)you needed $50,000;
(ii)you were deficient in funds by $5,000.
2 You stood your trial, and on 8 April 2014 a jury:
(a)found you guilty in respect of Counts 2, 3, 5, 6, 10 and 11
(b)found you not guilty of Counts 1, 4, 7, 8 and 9.
3 Prior to the empanelment of the jury, on application by your counsel, I severed Count 12 of the presentment, which reads:
“Count 12 – at South Yarra in the said State on 14 April 2007 you dishonestly obtained, from the said Ian’s Bijoux of South Yarra Pty Ltd, property, namely a ring to the value of $9,000, with the intention of permanently depriving the said Ian’s Bijoux of South Yarra Pty Ltd by falsely representing that at that time there were sufficient funds in your cheque account to purchase the ring.”
4 After the verdicts were handed down by the jury I was informed by your counsel that you would plead guilty to such count, and your plea of guilty was entered into the records of the court on 9 April 2014 on file number CR-14-00580.
5 Furthermore, pursuant to s.145 of the Criminal Procedure Act 2009 the following summary charges were transferred to this court:
Charge 1 – the accused at Melbourne County Court on 21 April 2010 did fail without reasonable cause to appear in accordance with her undertaking at bail, which she signed and entered into on 7 September 2009 at Melbourne, and;
Charge 2 – the accused at Melbourne County Court on 21 June 2010 did fail without reasonable cause to appear in accordance with her undertaking at bail which she signed and entered into on 7 September 2009.
6 On 9 April 2014 you pleaded guilty to such offences, and such pleas were recorded by this court.
7 The offence of obtaining property by deception is contrary to s.81 of the Crimes Act and carries a maximum penalty of 10 years’ imprisonment. The offence of failing without reasonable cause to appear in accordance with an undertaking of bail is contrary to s.30(1) of the Bail Act 1977 and carries a maximum penalty of 12 months’ imprisonment.
Circumstances of the Offending
8 Save for the two charges of failing to answer bail, arising from your non-attendance in the County Court during 2009, all the offences which you have been found guilty of, and the offence to which you have pleaded guilty, involve obtaining property by deception.
9 The offences for which you have been found guilty by the jury relate to your involvement with the complainant, Aleksander Atanasov, over a period of time from March to April 2007.
10 On the evidence at the trial, I find beyond a reasonable doubt that you met the complainant at the Crown Casino in or about early March 2007, and became aware through discussion with him that he had suffered an acquired brain injury in 2002 causing him to be unable to work.
11 In such context, the jury found you guilty of:
(a)Count 2: The circumstances of which involved you telephoning the complainant, on 28 March 2007, and asking him to deposit $1,500 into the TAB account of your former husband, Cedric McLeod. You said that you would return such money together with $900 interest on the following Friday. Such money was deposited by the complainant at the Summerhill TAB, and there was documentary evidence confirming such deposit and withdrawal of the $1,500 by Cedric McLeod, who gave evidence that he gave this money to you at the casino.
(b)Count 3: When again on the same day, but at a different time, you telephoned the complainant and requested a further $5,000 be paid into the TAB account, indicating that the complainant would receive a further $1,000 interest the following Monday. Again, the complainant deposited $5,000 into the TAB account at the Summerhill TAB, and there was documentary evidence confirming such deposit and withdrawal of the $5,000 by Cedric McLeod, who gave evidence that he gave this money to you at the casino.
(c)Count 5: – On 2 April 2007 you rang the complainant and asked for $4,000 in cash to invest, and the complainant stated he did not have the cash. You then spoke to the wife of the complainant, Mrs Daniella Atanasov, who advised you that she had $3,600 saved up for her children in an NAB bank account. You informed Mrs Atanasov that if she deposited the $3,600 into your bank account you would pay her $900 in a few days’ time. Mrs Atanasov paid such moneys into the Westpac bank account, together with a further $400 that the complainant added to such sum. Documentary evidence was tendered as to the payment of $4,000 into your Westpac account.
(d)Count 6: – On 4 April 2007 you called the complainant requesting $1,500 to invest and were told by him that he only had $1,300. You promised $2,500 of interest if he deposited money into your Westpac account. The complainant deposited $1,300 into the Westpac account. Again, there was documentary evidence before the court evidencing such deposit into your account.
(e)Count 10: – On a day in April 2007 you asked the complainant if he could ring some friends to raise $5,000, as you needed $50,000 and was deficient by $5,000. The complainant rang his cousin, Nick Kenevski, from whom he ultimately obtained $1,000 which was given to you in $50 notes. Kenevski gave evidence that he obtained the $1,000 in $50 notes from an ATM near his factory.
(f)Count 11: – On the same day the complainant rang Oliver Trifunovski and asked for $1,000, which he obtained, and such money was given to you.
Interpretation of the Jury Verdicts
12 I consider that the jury verdicts can be appropriately interpreted on the basis that the jury acquitted you of several charges of obtaining property by deception at Count 9, involving theft, in circumstances where these offences lacked any documentary evidence and/or involvement of either Mrs Daniella Atanasov or Nick Kenevski or Oliver Trifunovski all of whom gave evidence.
13 Furthermore, I consider the jury verdicts also reflect rejection of what was put to the complainant through your counsel, that the moneys paid into the TAB account and your Westpac banking account were repayment of debts owed by the complainant to you.
14 In relation to the further charge of obtaining property by deception, to which you pleaded guilty on 8 April 2014, the prosecution prepared a summary of the evidence which was not disputed by your counsel.
15 In particular, on 14 April 2007 you attended Bijoux jewellery store in South Yarra and purchased a diamond ring, the sale price of which was $12,000, but the jeweller agreed to sell you the ring for $9,000. You paid with a Westpac cheque dated 16 April 2007 and asked the jeweller to bank the cheque the following Monday. When the manager of the jewellery store deposited the cheque he was informed that there were insufficient funds, and there were further discussions between you and the manager of the jewellery store as to transferring money into your cheque account. Ultimately the cheque was re-presented on Thursday 19 April 2007, and on 21 April 2007 the cheque was dishonoured. From 21 April 2007 to 2 May 2007 the manager made several attempts to have you return the ring or make payment for the item. The ring was returned many months later.
16 In the jury trial, on application by the prosecution pursuant to s.24 of the Jury Directions Act 2013, I determined the prosecution could lead evidence of conduct on your behalf after the occurrence of the offences to be heard before the jury, in support of the Crown position that you “fled Australia shortly prior to [your] first trial as an unspoken or implied admission that [you were] responsible for the relevant offences charged”.
17 A brief chronology of the unchallenged evidence in relation to those matters consists of:
(a)On 20 May 2007 you were arrested and charged and granted bail;
(b)You attended a contested hearing on 2 April 2008, at which time you elected to go to trial;
(c)A committal hearing was held over the period from 24–25 June 2008, after which you were committed to stand trial;
(d)On 25 June 2009 you were given a notice of undertaking of bail for appearance at trial; and
(e)On 7 September 2009 the trial date was set to hear the various obtaining property by deception offences, and such hearing date was to be 21 June 2010.
18 You failed to appear without reasonable cause on 21 April 2010 and 21 June 2010. Subsequent information revealed that you had flown from Melbourne to Kuala Lumpur on 18 February 2010, returning on 8 March 2010, and departing again to Kuala Lumpur on 27 March 2010 under the name of Debbie Jane Diamantis, which is the married name of one of your daughters. You returned to Australia on 29 March 2013 to obtain medical treatment under your maiden name of Novak, at which time you were remanded in custody.
Documents Tendered by the Prosecution
19 The prosecution tendered the following documents during the plea hearing:
(a)The prosecution opening for a plea; and
(b)Victim impact statements declared by the complainant, Mr Aleksander Atanasov, and his wife, Mrs Daniella Atanasov, both of which were read to the court.
20 Furthermore, the court was shown a copy of your criminal record, which I was informed through your counsel you accepted as accurate.
21 In his victim impact statement, the complainant describes how he has been made a fool and feels hurt, angry and frustrated, and has lost trust in people. In particular, he describes how it has affected his relationship with his wife and children and has had an impact on everyday life.
22 In her impact statement, Mrs Atanasov confirms that her relationship with her husband has been affected, and in particular states:
“This lady Emily has made our family in a lot of debt. We owe money on credit cards and a home loan. I am very upset with myself. I believed her when she rang me at home and I am very disappointed in myself for giving all the money that I had saved for my children, and I can’t believe she had no feelings at all when I told her that was my children’s money. In all this I am very stressed and most of all my memory is not the same.”
23 You have an extensive criminal history extending back to October 1967, when on 2 October of that year you were convicted of housebreaking with intent to steal and were sentenced to a Good Behaviour Bond for a period of two years. Since then, you have been convicted of the following crimes:
(a)On 2 August 1968, you were convicted of forgery, uttering and larceny and sentenced to pay various fines;
(b)On 2 September 1968, you were convicted of larceny in a dwelling house, two counts of forgery, two counts of uttering and 23 counts of obtaining credit by false pretences and were sentenced to a Good Behaviour Bond for a period of three years;
(c)On 19 September 1969, you were convicted of stealing, three charges of forgery, false pretences and three charges of uttering and sentenced to a period of six months’ imprisonment with such sentence being wholly suspended;
(d)On 20 March 1970, you were convicted of breaking, entering and stealing, two counts of forgery and two counts of uttering and were sentenced to 18 months’ imprisonment with a non-parole period of six months;
(e)On 14 April 1970, you were convicted of stealing, receiving, having goods in custody suspected of having been stolen, and were sentenced on each charge to be imprisoned for a period of three months with hard labour;
(f)On 3 March 1972, you were convicted of using premises for the purposes of prostitution and were fined;
(g)On 26 August 1981, you were convicted of obtaining property by deception, burglary and theft, and sentenced to a total effective sentence of two years’ imprisonment with a minimum non-parole period of 18 months to be served;
(h)On 24 November 1981, you were convicted of theft and attempted theft and sentenced to an effective term of imprisonment of three months, to be served concurrently with the sentence that you were then undergoing;
(i)On 23 April 1987, you were convicted of 30 counts of obtaining property by deception, seven counts of theft, forgery and uttering, and ultimately sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years and six months;
(j)On 28 June 1991, you were convicted of two counts of obtaining a financial advantage by deception and obtaining property by deception and sentenced to a total effective sentence of two years’ imprisonment with a non-parole period of 12 months;
(k)On 15 February 1993, you were convicted of 26 counts of obtaining a financial advantage by deception and were sentenced to a period of imprisonment of four years. The non-parole period is unknown;
(l)On 19 March 1993, you were convicted of 21 counts of obtaining property by deception and 5 counts of defrauding a public authority (which included both State and Commonwealth offences) and were sentenced to a total effective sentence of six years and six months, with a non-parole period of five years; and
(m)On 26 February 2001, you were convicted of six counts of obtaining property by deception and five counts of obtaining a financial advantage by deception and sentenced to a total effective sentence of six years, with a minimum non-parole period of four years.
24 I was also informed by the prosecutor that there had been subsequent offending involving obtaining property by deception offences using a stolen credit card. Such offences occurred on 16 May 2007 and were dealt with in February 2009 ,when you were sentenced to six-months’ imprisonment wholly suspended. Counsel for the prosecution submitted, rightly in my view, that although such subsequent offending cannot be taken into account as a prior history, it is of some relevance in assessing the prospects of your rehabilitation.
25 Counsel for the prosecution submitted that a compensation order should be made in the sum of $13,800, being the amount obtained from the complainant as a result of the offences you were found to be guilty of by the jury.
26 In particular, counsel for the prosecution submitted:
(a)That you have a substantial criminal history which he described as “41 years of continuous offending”. In this context, he submitted that there were “zero” prospects of rehabilitation on your part;
(b)Furthermore, he submitted that it is “rare” where you have a case such as this and that in the circumstances of this matter the community does need protection against the type of criminal activity you have demonstrated over a long period of time;
(c)In particular, he described the offences which the jury found you guilty of to be offences involving a “soft target”, with the complainant being someone who had suffered an acquired brain injury, was unemployed and no doubt found it attractive the various returns that you promised on the various sums of moneys advanced by him to you.
27 Furthermore, notwithstanding the subject offences occurred in March-April 2007, and the breaches of bail in 2009, the “delay” should not be a mitigatory factor in favour of you as such delay was brought about by you initially uplifting the matter from the Magistrates’ Court to be heard in the County Court, and your departure from the jurisdiction in March 2010. He points out that if you had remained in the jurisdiction your trial was fixed to be heard on 21 June 2010.
Your Counsel in Support of Your Plea in Mitigation
28 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a) Defence plea submissions (Exhibit A);
(b)Two documents from St Vincent’s Hospital dated 29 March 2013 and 23 April 2013 (Exhibit B).
29 On the basis of that material, and the submissions made by your counsel, I set out the following details in relation to your personal circumstances, your educational and vocational background.
30 You are presently 66 years of age and were 59-years-old at the time of your offending.
31 You were born in Hungary and your father initially emigrated to Australia in 1951 and, following the Hungarian Revolution in 1956, you came to Australia with the rest of your family and reunited as a family. You were raised in the Wodonga area and initially schooled in that area before receiving a bursary at the age of 15 to board at the Star of the Sea Ladies’ College of Melbourne, where you remained until the age of 17. At age 16 you discovered your father at home following his suicide.
32 You first married at the age of 17 in 1963 and that relationship produced four children. You left your first husband in 1997 and have subsequently remarried twice ,with your last husband being Cedric McLeod, whom you are still legally married to but have been separated from for some period of time. You commenced gambling in your early 20's and, according to your counsel, became “addicted” very early on and such addiction has afflicted you for the majority of your adult life.
33 Immediately upon your return to Australia on 29 March 2013, you were admitted to St Vincent’s Hospital with a diagnosis of cervical myelopathy and underwent an anterior cervical discectomy and fusion at the C4/5 and C5/6 level of your neck, on 11 April 2013. You were initially discharged on 15 April 2013 (back into custody) and on 23 April 2013 you were re-admitted complaining of falls and “subjective” worsening of upper limb weakness and increased lower limb tone. You were discharged again from hospital on 3 May 2013. According to the documents tendered on your behalf, an MRI scan undertaken on 29 April 2013 of the head and spine did not reveal a new or worsening pathology, and the fusion cage was in good location. Furthermore, you were seen to be walking around the room and feeding independently with only subtle weakness. I note that throughout the course of the trial and the plea you were wheelchair bound and the material before me does not indicate why you continue to be so wheelchair bound.
34 On the basis of all the material, your counsel submitted essentially the following matters in mitigation of your sentence:
(a)Although it was conceded that your criminal history was lengthy and relevant to a “high degree”, such history is not “overwhelming” and there are extensive gaps where no offending occurred. Your last conviction prior to the subject offences was on 26 February 2001 and since then there has only been the subject offences and the offences dealt with in the Magistrates’ Court in February 2009, referred to by counsel for the prosecution.
(b)Although there is no evidence of any remorse, in respect to the counts that the jury found you guilty of, there was limited evidence of remorse and a utilitarian advantage in respect of pleading guilty to Count 12, although your counsel accepted evidence of remorse was limited, the plea is still “clearly valuable” and indicative of a degree of remorse.
(c)You are now 66 years of age and bearing in mind that you are wheelchair bound, prison will weigh more heavily upon you. Furthermore, any issue of community protection becomes “somewhat diminished” given your advanced years and you being wheelchair bound.
(d)Although the prior convictions limit the prospects of rehabilitation, such is not altogether non-existent, given your now more mature years and being wheelchair bound.
(e)Although there clearly has been delay from the time of the offences to the trial of such offences, it was conceded by your counsel such a delay is “largely attributable” to you and your conduct and, therefore, any benefit that you can claim is greatly reduced. Again, your counsel highlights that there is no evidence of you reoffending whilst abroad, and that you will now be sentenced as a very different person to the person who committed offences. That is, given your advanced years and being bound to a wheelchair. Although you have been in custody for 12 months, your counsel highlights that this delay, although not extensive, is certainly not your fault.
(f)In particular, your counsel highlights that the sum of the moneys obtained from the complainant through your offending amounted to $13,800, and it is a useful approach to measure the severity of offences such as these by reference to the quantum obtained. In this respect, counsel submitted that when you were previously convicted in February 2001, the quantum alleged to be obtained by you was in the order of $155,000.
35 Taking all these matters into account, your counsel submitted that the then 376 days you had served as pre-sentence detention is “more than sufficient penalty” for the offending. Particularly so given the amount of $13,800 obtained by you from the complainant. In such circumstances, it was submitted that no further immediate incarceration is required.
Conclusion
36 I consider that relevant sentencing considerations for offences involving obtaining property by deception include a combination of just punishment, general and specific deterrence, denunciation by the court of the dishonest practices involving the offending, together with any relevant mitigatory matters put on your behalf.
37 In relation to those offences that the jury found you guilty of, the Court of Appeal has repeatedly emphasised the significance of general deterrence in sentencing for offending of this character. I refer to R v. Kennett [2009], VSCA 104 at Paragraphs 24-25, R v. Yusuf [2010], VSCA 266 at Paragraph 27, and R v. Koch [2011], VSCA 435 at Paragraph 155. Furthermore, in view of your plea of not guilty and lack of remorse, considerable weight must be given to specific deterrence and the protection of the community in relation to your plea of guilty.
38 In relation to the severed count of obtaining property by deception, such a plea amounted to, in my view, no more than a forensic decision at the conclusion of the jury trial. However, I do accept that it is now well settled that a plea of guilty is a matter to be properly taken into account in mitigation of sentence. In R v Phillips [2012] VSCA 140, Redlich JA and Curtain AJA highlighted this sentencing principle at Paragraph 42, when referring to the High Court decision of R v. Siganto [1998] 194 CLR 656 where at pp. 663-664 Gleeson CJ, Gummow, Hayne and Callinan JJ stated:
“ … A plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.”
39 In the circumstances of this matter, I accept that the plea of guilty in relation to such count does have some utilitarian value, saving in the cost of a short trial, but little evidence of any real remorse. Similarly, your pleas of guilty in relation to the two charges of breach of bail clearly had some limited utilitarian value.
40 Furthermore, I do not consider the issue of delay between the date of the offences and the trial to carry much weight in the sentencing disposition. In this respect, I refer to R v. Arthars, and R. v. Plantar [2013] VSCA 258 at Paragraphs 28-29, whereat the Court of Appeal stated:
“When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process, or the administration of the courts, will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender. In R v Cockerell, Chernov JA (with Winneke P and Buchanan JA agreeing) noted that delay which 'cannot be attributed to the offender will constitute a powerful mitigating factor in sentencing; in R v Tiburcy, Maxwell P (Warren CJ and Buchanan JA concurring) referred to delay which was not 'solely or even partly the fault of the accused'; and in R v Whyte, Winneke P (with Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the Judge below that delay, where 'self-inflicted' by the applicant, would carry little weight as a mitigating factor.
Every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstances.”
41 Bearing in mind the uncontested evidence that the trial for your offending was to commence on 21 June 2010, and that you left Australia for Kuala Lumpur on 27 March 2010 and not returning until 29 March 2013, are clearly matters that you had a control over, and accordingly carry little weight as a mitigating factor. I also note the appropriate concession by your counsel in that since your return to Australia and being remanded in custody, the delay since then is not unreasonable. I do give some weight that over the time from May 2007 to now there would appear to have been no further offending.
42 Given your long criminal history of committing dishonesty offences and, in particular, obtaining property by deception, I consider the chances of rehabilitation to be extremely slim. Other than what I have commented on in relation to a plea of guilty to the severed count of obtaining property by deception, there is no evidence of remorse or any attempt to overcome your gambling habits. In this respect, your counsel submits, as a result of your age and being bound to a wheelchair, you are a different person to the one who committed the offending in 2007. Although I give some weight to your age and wheelchair status (although I do not know whether such status will continue permanently), which may inhibit your activities in the future, and indeed, may make it harder for you in prison, I still consider that in considering an appropriate sentence, the protection of the community continues to be of some importance.
43 Furthermore, consistent with my earlier comments, I consider that general deterrence and specific deterrence is important in this matter, given your lengthy criminal history, albeit with various breaks of time between various convictions.
44 Your counsel put significant emphasis on the amount of money obtained through your offending , $13,800, and that relatively modest amount should be the touchstone for any particular sentence. I accept such submission and refer to Koch v R [2011] VSCA 435 at Paragraph 58, where Maxwell P stated (with whom Buchanan and Neave JJA agreed):
“While, as counsel for the applicant properly conceded, the amounts involved are not determinative of sentence, they are, for good reason, of very great significance in determining the appropriate sentence. That is so, at least in part, because the quantum provides some real indication of the measure of loss and damage, both financial and psychological, caused to the victims of the frauds. A review of the decisions in the table confirms that relativities between amounts defrauded, both as between different victims of the same offender and as between different offenders, have a direct bearing on sentencing differentials.”
45 Later in R.v. Dankovic [2012] VSCA 255, Nettle JA (with whom Maxwell P and Ferguson AJA agreed) stated at Paragraph [11]:
“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, it is an obvious starting point in the synthesis of relevant sentencing considerations. It goes to the essence of the offending.”
46 However, in the circumstances of this matter, although an obvious starting point, the offences must be seen, in my view, where there is a long history of previous similar offending, and in circumstances where there is, in my view, little or no remorse in such offending. Furthermore, previous sentences have failed to deter you from committing these types of offences.
47 I am also mindful that although the sums involved are relatively modest, the offences involving the complainant were against a “soft target” who suffered from an acquired brain injury and was unemployed. Furthermore, there was a degree of callousness knowing that the moneys obtained from Mrs Atanasov involved money set aside for the future of their children.
48 Taking all the circumstances into account, I consider it appropriate to convict you of each of the offences and sentence you in relation to each offence. Considering the principle of totality, I intend to make the sentence imposed on Count 3 the base sentence and sentences in relation to other offences will be party cumulated upon this sentence.
49 Accordingly:
(a)On Count 3, you are convicted and sentenced to a period of imprisonment of eight months;
(b)On Count 2, you are convicted and sentenced to four months’ imprisonment, with three months of that sentence to cumulate with the sentence in relation to Count 3;
(c)On Count 5, you are convicted and sentenced to a period of imprisonment of seven months, six months of which is to cumulate with your sentence on Count 3;
(d)On Count 6, you are convicted and sentenced to four months’ imprisonment, three months of which will cumulate on your sentence in relation to Count 3;
(e)On Count 10, you are convicted and sentenced to four months’ imprisonment with three months of such sentence to cumulate with Count 3;
(f)On Count 11, you are convicted and sentenced to four months’ imprisonment, three months of which is to cumulate on Count 3;
(g)On Count 12 (that is the severed count on CR-14-00580), you are convicted and sentenced to four months’ imprisonment, of which three months is to cumulate with the sentence on Count 3 on CR-09-01179;
(h) In relation to the first summary offence of breaching bail, you are convicted and sentenced to two months' imprisonment. I direct that one month is to cumulate on the sentence imposed on Count 3;
(i) In relation to the second charge of failing to answer bail, you are convicted and sentenced to one month imprisonment. I direct that this term is to be served concurrently with the other sentences imposed this day.
The total effective sentence is 30 months’ imprisonment and I order that you serve a non-parole period of 24 months.
50 I declare that the 382 days that you have served in pre-sentence detention be reckoned as time already served under this sentence.
51 In relation to the severed Count 12, I declare pursuant to s.6AAA of the Sentencing Act that, save for your plea of guilty I would have sentenced you to a period of seven months’ imprisonment.
52 I order that you compensate the complainant in the sum $13,800.
53 Yes, anything to raise, Madam Prosecutor?
54 MS NAIMO: No thank you, Your Honour. Only if I could just mention you kept referring to the date of the previous trial being listed on 25 June. It's 21 June 2010.
55 HIS HONOUR: Yes, I'll change that then.
56 MS NAIMO: Thank you, Your Honour.
57 HIS HONOUR: Yes, thank you. Yes, take her down, thank you. Yes, you can be excused, ladies and gentlemen.
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