DPP v Kose - [2006] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4 of 2006

DPP
	v.
MEHMET KOSE

---

JUDGES:	WARREN, C.J., BUCHANAN and ASHLEY, JJ.A
WHERE HELD:	WARNAMBOOL
DATE OF HEARING:	27 March 2006
DATE OF JUDGMENT:	30 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 119	1st Revision

---

CRIMINAL LAW - Crown appeal – Whether sentence was manifestly inadequate - Obtaining a financial advantage by deception – Fine without conviction – Effect on future employment – Failure to enter a conviction on the record - Sentencing Act 1991, s.6J(1) – Continuing criminal enterprise offender – Conduct of Crown at plea

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.D. McArdle, Q.C. with Ms Erin J. Gardner	Mr S. Carisbrooke on behalf of the Office for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Galbally Rolfe

WARREN, C.J.:

This is an appeal by the Director of Public Prosecutions pursuant to the Crimes Act 1958, s. 567A. The appeal is against the sentence handed down to Mehmet Kose by a judge of the County Court on 7 December 2005 for three counts of obtaining a financial advantage by deception contrary to the Crimes Act 1958, s. 82.

The first count relates to a loan from the Commonwealth Bank for the purchase of land at 8 Gretna Court, Greenvale. This loan was granted on 29 July 2004. In obtaining $228,396 from the Bank, the respondent made the following misrepresentations:

·That he was single with no dependent children. In truth, the respondent was married with one child.
·That he was employed by a business named Turkish Patisserie and received a gross income of $59,000 per annum. In truth, the respondent was not employed by such a business. This claim was supported by a letter that was, as the term is commonly understood, fraudulent.
·That he had received $40,000 from one Samaya Kose whom he described as a close relative. In truth, no such money was given by Samaya Kose to the respondent who is better described as not the respondent’s close relative but as his wife.

The second count relates to a loan from RMJ Home Loans and Perpetual Trustees through an intermediary, Interstar Wholesale Finance, for the purchase of property in Dubbo, New South Wales. This loan was granted on 15 September 2004. In obtaining $60,000, the respondent made the following misrepresentations:

·That he was single with no dependent children. As already stated, the respondent was in fact married with one child.
·That he was employed by Kayer’s Timber Floors and received a gross income of $62,000 per annum. In truth, the respondent was not employed by such a business. This claim was supported by a letter that was fraudulent.

The third count relates to a second loan from the Commonwealth Bank for the construction of two town houses on the property at 8 Gretna Court, Greenvale. This loan was granted on 15 September 2004. In obtaining $270,000, the respondent made the following misrepresentations:

· That he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Kose

Details

AGLC: DPP v Kose [2006] VSCA 119
Case: [2006] VSCA 119
Decision Date: 30 March 2006

CaseChat Overview and Summary

In the case of DPP v Kose, the defendant was convicted of obtaining a financial advantage by deception. The appeal in this case was brought by the Director of Public Prosecutions, challenging the sentence imposed by the lower court. The central issue was whether the sentence was manifestly inadequate given the nature and circumstances of the offence. The defendant was sentenced to a fine without a conviction being recorded, which raised questions about the impact on his future employment and the implications of such a sentence under the Sentencing Act 1991.

The court was required to consider the principles of sentencing, particularly whether the sentence was manifestly inadequate. This involved examining the nature of the offence, the defendant's conduct, and the impact of the sentence on the defendant and the community. The court also had to consider the statutory provision regarding fines without conviction under section 6J(1) of the Sentencing Act, and whether the defendant's status as a continuing criminal enterprise offender warranted a different approach to sentencing.

In delivering the judgment, the court found that the sentence imposed was manifestly inadequate. The court noted the seriousness of the offence, the defendant's history of criminal conduct, and the potential for the fine to have a negligible impact on him. The court also highlighted the importance of recording a conviction to protect the interests of potential employers and the community. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing. The court further noted the importance of ensuring that the Crown's conduct during the plea process was appropriate, given the defendant's status as a continuing criminal enterprise offender.

Orders