Gorcilov v Police No. Scciv-01-1790

GORCILOV v POLICE
[2001] SASC 45
Magistrates Appeals: Criminal (ex tempore)

DOYLE CJ: This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court to four counts of obtaining a valuable security, a cheque, by false pretences. The value of the cheques, added together, was $1,199,918.85. The cheques were obtained from the National Australia Bank. (I will refer to the Bank as “NAB”.)
The NAB suffered a loss after realising certain security of $741,306.
The Magistrate sentenced the appellant to imprisonment for two years eight months, after reducing the sentence by four months on account of the guilty plea.
The appellant was also dealt with by the Magistrate on a charge of breaching a good behaviour bond. He pleaded guilty to the charge of breaching the bond. The offences that I have just referred to constituted that breach.
A breach of the bond meant that the appellant was liable to serve a previously suspended sentence of 12 months imprisonment. The offence for which he received the suspended sentences was obtaining money by false pretences.
The Magistrate revoked the suspension order, bringing into effect the twelve months imprisonment. That meant that the appellant faced a head sentence of three years eight months. The Magistrate fixed a non-parole period of two years three months.
The argument on appeal is based on the following:
(1)the impact of imprisonment on the appellant’s family;
(2)a claim of disparity between the appellant’s sentence and that of his co-offender;
(3)a submission that the Magistrate did not make an adequate reduction for his plea of guilty;
(4)a submission that the term of the suspended sentence should also have been reduced because of the impact of the imprisonment on the appellant’s family;
(5)the submission that the Magistrate should have allowed for an earlier period of three to four weeks spent in custody and a period spent on home detention bail.
These are the matters in the outline of argument that was filed, not all of which were pursued, or at least pursued in detail by Mr Stokes. I deal first with the facts.
The appellant was a prime mover and a fraud. The fraud involved inducing the NAB to finance the purchase of a nursing home by a string of false representations and devices.
It suffices to say the scheme was carefully and skilfully thought out. This was no impulsive act. The scheme was carried out over a period of time. I regard this as a serious fraud.
Each of the four counts attracted a maximum sentence of four years imprisonment, leading to a total of 16 years. However, the offence was in substance a single enterprise, and that is a matter properly to be taken into account.
Although NAB lost $741,306 that loss would have attracted a tax deduction, reducing its tax by about $250,000. I agree with the Magistrate that this aspect is relevant but of little significance. The criminality lies in the fraud and its direct consequence for NAB.
I can find no circumstances relating to the offence itself that would mitigate its seriousness.
I turn to the other matters relied on in mitigation and which are also relevant to the grounds of appeal.
The Magistrate was told that the appellant is married. He has three children aged four years, three years and 11 months. His wife is due to give birth shortly to twins. The Magistrate noted that the offences were committed between March and May 1997 at which stage the appellant had, I gather, only one child. The Magistrate said for that reason he could not consider the effect on the appellant’s family.
In that respect, the Magistrate was wrong. The court can, and should, consider the offender’s circumstances as at the time it sentences an offender, although sometimes it may conclude that a change between the time of the offence and the time of the hearing should be disregarded. There is no reason to do so in this case.
While the appellant has fathered children since he committed the offences, the relevant issue is the impact of imprisonment on those children and his wife. The fact that the appellant may, in a sense, have brought the problem on his own head is not irrelevant. But it does not mean the impact of imprisonment on the wife and children is to be ignored. In that sense, they can be regarded as the victims.
I reject the submission that there is an unwarranted disparity between the suspended sentence of eighteen months’ imprisonment, with a non-parole period of nine months, imposed on the co-offender and the sentence imposed on the appellant. The co-offender was not the principal offender. According to the reasons of Martin J, who dealt with an appeal against her sentence, she was significantly influenced by the appellant. She pleaded guilty much earlier than the appellant and offered to give evidence against him. She had no previous offences. The appellant, as I mentioned, has a relevant prior conviction.
I consider she was properly given a much lower sentence. The suspension order was merciful and influenced by the plight of her young child.
It follows that I regard the co-offender’s sentence as of limited relevance, although obviously the appellant’s sentence should not be so much more as to create an unwarranted disparity.
The reduction for the plea of guilty was four months, which is one-ninth of the starting point. That is low.
The plea of guilty was entered in June 2000, about five months after the Information was filed. It was entered after a trial date had been fixed. It cannot be regarded as an early plea. On the other hand, it cannot be regarded as a plea after a prolonged delay. However, after the plea was entered, there was a delay because the appellant disputed certain facts.
There was then a disputed facts hearing which the Magistrate records was, in substance, resolved adversely to the appellant, except that the prosecutor acknowledged that the NAB would receive the benefit of the tax deduction.
In my opinion, the Magistrate did not err in the allowance which he made. But, as I must resentence because of the error in relation to the impact of the family, I will have to make my own assessment in this respect.
The period of three to four weeks in custody and the time on home detention, I was told at the hearing, were attributable to other matters and accordingly can be put to one side.
The Magistrate was not asked to exercise the power under s 58(4)(a) of the Criminal Law (Sentencing) Act and to reduce the term of the suspended sentence. He can hardly be criticised for failing to do so. I accept that the power was available to be exercised but, in my opinion, the only possible ‘special circumstances’ is the impact of imprisonment on the appellant’s family.
I consider it will suffice if I give such weight as is appropriate when resentencing the appellant on the more recent count and allow as I think appropriate for that factor in relation to the recent counts and the earlier sentence.
Having found that the Magistrate did err in one respect, and one respect only, I now turn to sentence the appellant.
The crime is a serious one. The amount involved speaks for itself. It was a cunning and calculated fraud. There are no mitigating aspects of the offence itself.
I would allow a greater reduction on account of a plea of guilty than did the Magistrate. But I must bear in mind that the prosecution case was overwhelming and the defendant did continue to contest the amount involved.
Subject to the issue of the impact upon the appellant’s family, I regard the Magistrate’s starting point of three years as very moderate for such a serious fraud. He could easily have started higher, and arguably should have. However, as this is now the appellant’s appeal against sentence, I am not in a position to impose a higher sentence and I do not think it would be appropriate for me to start from a higher starting point. On the other hand, in my opinion it would not be right to start anywhere below three years, which was the Magistrate’s starting point.
The situation of the appellant’s wife and children is difficult. Mrs Gorcilov and her husband will soon have five children under six years of age. This is a heavy burden. Further affidavit material, which I agreed to receive, indicates that there is little prospect of significant help from the extended family, for all sorts of reasons. I also accept that the children were upset when their father was in custody earlier and they will be again. The pressure of circumstances has led Mrs Gorcilov to leave the appellant with three of the children and to return to her parents pending the birth of the twins. Mr Gorcilov has become, for the time at least, the sole carer for the older three children. I accept that it is now not clear what will happen to them if the appellant is imprisoned.
This is distressing and unfortunate and I will allow for it in the sentence. But Mr Gorcilov and other offenders must understand that just as victims suffer from their crimes, so will their families. The suffering of families may be taken into account when it is noticeably out of ordinary, as it is here. But it cannot be allowed to overwhelm other relevant factors.
By breaching his bond the appellant has shown that he is slow to acknowledge the benefit of being treated mercifully and was not deterred from offending by the fact that he faced a suspended sentence. Consideration for his family must also be limited by the seriousness and magnitude of the offence, as well as by the need for deterrence. Mr Gorcilov’s breach of the bond shows that there is a real need for deterrence.
In the circumstances, I would impose a single sentence of imprisonment for two years, which is eight months less than that imposed by the Magistrate. From a starting point of three years, I have reduced the sentence by about six months on account of the impact on the family and by a further six months on account of the plea of guilty.
In each respect I consider that I have been generous. The total reduction of twelve months reflects the fact that I have not reduced the suspended sentence as well. This sentence, that is, the sentence I have imposed, will begin at the expiry of the twelve months’ suspended sentence which now must be served. That means that the appellant is liable to serve a total of three years imprisonment. In relation to the head sentence of three years I fix a non-parole period of twenty months. I have, again, considered the impact on the family but I do not consider that I can properly go below that. I regard that also as a very merciful non-parole period.
I am not prepared to suspend the sentence, or to exercise the power under s58(3) and to refrain from revoking the suspension of the earlier sentence. There is really nothing that calls for me to do so, except for the impact on the appellant’s family. I have thought carefully about this in relation to this aspect of sentencing as well. I consider that the seriousness of the crime, the doubts I have about the appellant’s prospects of rehabilitation and the fact of his breach of bond are strong arguments against an order suspending the sentence. Likewise, the impact on his family is not a sufficient reason, to my mind, to refrain from revoking the suspension of the earlier sentence.
I note that the appellant is on bail and is required by his bail to appear before the Adelaide Magistrates Court within 14 days of this Court’s decision on the appeal. I proceed on the basis that he will be taken into custody then which will allow him 14 days within which to make such arrangements as he can for the children. I order as follows:
1.That the appeal be allowed.
2.That the sentence and orders of the Magistrate be set aside.
3.That the order suspending the sentence of twelve months’ imprisonment be revoked and that the appellant serve that sentence with effect from the date upon which he is taken into custody.
4.That on the four counts before the Magistrate the appellant be sentenced to a single sentence of imprisonment for two years to be served at the expiration of the sentence of twelve months’ imprisonment.
5.In relation to the total head sentence of three years I fix a non-parole period of twenty months to commence from the date upon which the appellant is taken into custody.

[2002] SASC 45

11 February 2002