Jonceski v The Queen
[1991] TASSC 104
•13 November 1991
98/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Jonceski v R [1991] TASSC 104; A98/1991
PARTIES: JONCESKI, Milan
v
R
FILE NO/S: CCA 67/1991
DELIVERED ON: 13 November 1991
DELIVERED AT: Hobart
JUDGMENT OF: Wright and Crawford JJ
Judgment Number: A98/1991
Number of paragraphs: 17
Serial No 98/1991
List "A"
File No CCA 67/1991
MILAN JONCESKI v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
CRAWFORD J
13 November 1991
Order of the Court
Application for leave to appeal refused.
Serial No 98/1991
List "A"
File No CCA 67/1991
MILAN JONCESKI v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
13 November 1991
The applicant seeks leave to appeal against a sentence of three months' imprisonment imposed on 30 May 1991 in respect of eight counts of perjury contrary to s.94(1) of the Criminal Code. There were originally four grounds for the application but grounds 1 and 2 were abandoned. Ground 3 is in the following terms:
"THAT the sentence imposed in all the circumstances was so disparate to sentences imposed upon firstly one Stanic by Judge Underwood on 27th February, 1991 of a three months suspended sentence and secondly upon one Popovic by Judge Cox imposed on the 3rd May, 1991 in respect of counts of perjury arising out of the same acts and transactions as those alleged against the Appellant as to give rise to a justifiable sense of grievance on the Appellant's part, which offends against the appearance of justice."
Ground 4 was not abandoned, but counsel for the applicant did not support it by argument. Its terms were as follows:
"THAT in the all the circumstances the learned Trial Judge erred in not making the sentence of 3 months appealed against concurrent with the sentence of 15 months imposed upon the other inditements [sic] referred to above."
On the same day that he was sentenced to three months' imprisonment for perjury, the applicant was sentenced to fifteen months' imprisonment upon two counts of false pretences. There is no application for leave to appeal against the sentences imposed in respect of the false pretences charges.
The facts giving rise to the applicant's appearance in the Criminal Court are as follows. In July 1984 he lent his motor car to one Popovic for the purpose of driving from Hobart to Rosebery and return. Popovic paid Jonceski for the use of the car. Whilst driving alone on 7 July 1984, Popovic ran the car off the road. No other motor vehicle was involved. The car was damaged but was still driveable. Popovic returned to Hobart and the applicant, upon becoming aware of the damage to the vehicle, told Popovic that he had no insurance cover for the car. He required Popovic to pay for the cost of repairing the damage. Popovic suggested that he should arrange with his friend Stanic to claim on his insurance policy on the basis that Stanic's motor car had been involved in and had caused the collision with Jonceski's vehicle. Stanic apparently had comprehensive insurance cover on his car. The false claim was to be that Stanic had been driving from Rosebery to Tullah with Popovic as a passenger and that Stanic's car had struck the rear of Jonceski's car which Jonceski was driving at the time. Stanic was to make a false claim on his insurance company for $797.96 being the cost of repairs to Jonceski's car.
A false claim in these terms was made upon Stanic's insurers who duly paid out the sum of $797.96 to Jonceski. Later in July 1984, Jonceski, made a claim against the Motor Accidents Insurance Board stating that he had suffered damage to his cervical spine in the fictitious accident. The Motor Accidents Insurance Board accepted the claim and made payment to solicitors acting for the applicant, of a sum of $30,601.08. Of this sum the applicant received approximately $25,000.00 which he dissipated completely before being charged. He has made no restitution.
It seems unlikely that these two fraudulent transactions would have been discovered were it not for the fact that Popovic sued the Electrolytic Zinc Company Ltd for injuries received by him as a passenger in a separate motor vehicle accident in 1983. His contested claim for damages for personal injury came before the Chief Justice in August 1988 and Popovic, Stanic and the applicant, Jonceski all gave evidence upon oath in the course of those proceedings. In the course of their evidence, they all repeated, in one form or another, the false story about the collision between Jonceski's and Stanic's motor vehicles in July of 1984. As a result of this false testimony, they were all subsequently charged with multiple counts of perjury.
Stanic was charged upon ten counts of perjury and one count of obtaining goods by a false pretence. This latter charge related to his involvement in claiming the sum of $797.96 for the cost of repairs to the applicant's motor vehicle. Stanic entered pleas of guilty to these charges before Cox J in February 1991. In respect of the ten counts of perjury, he was sentenced to three months' imprisonment and upon the charge of false pretences he was sentenced to one month imprisonment. Both of these sentences were wholly suspended on condition that he be of good behaviour for a period of two years.
In May 1991, Popovic was presented before Underwood J on eight counts of perjury. In passing sentence his Honour made the following observations:
"Now I will be quite frank with you that in my view an appropriate sentence would be an immediate custodial sentence of three months' imprisonment, but the High Court has made it quite clear that comparable offenders should be dealt with in a comparable manner and my brother judge Cox said in sentencing Stanic 'In view of the absence of any prior convictions of relevance (that applies to you as well) I think the Court can expect that you will not involve yourself in further breaches of the law (that applies to you) and that you are capable of living a decent honest life and being a useful citizen (that applies to you) and in those circumstances I propose to suspend the sentence of imprisonment I think is appropriate on this indictment for perjury.' Therefore it seems to me that justice requires that I impose upon you the same sentence as was imposed on Stanic because I can see nothing to distinguish between the two of you in the circumstances of the crime or your personal circumstances and indeed counsel for the Crown does not urge that I should."
Thereupon Underwood J sentenced Popovic to three months' imprisonment but suspended the execution of that sentence upon condition that he be of good behaviour for two years.
On 30 May 1991, the applicant came before Zeeman J for sentence. In imposing sentence his Honour made the following comments:
"The accused has pleaded guilty to two counts of obtaining goods by a false pretence.
The first of those counts relates to his obtaining $797.96, being the cost of repairs of damage to his motor vehicle by means of a false insurance claim made by a third party. That claim proceeded upon the basis of a fictional motor vehicle collision.
The second count relates to a subsequent claim made by the accused upon the Motor Accidents Insurance Board in respect of injury which the accused claims he suffered in this fictional motor vehicle collision.
The accused has also pleaded guilty to eight counts of perjury when he was called as a witness in an action brought by one Popovic, where he was asked to give evidence about this fictional accident.
Insofar as the first two crimes are concerned, it is suggested that they were instigated by Popovic. However, it must be borne in mind that it was the accused, and the accused alone, who stood to gain financial benefit. Not only was he content to fraudulently have the costs of repairs met, but not satisfied with that, he then made a claim and I infer from the expenses incurred, persisted with the claim over a substantial period of time, for damages to which he knew he had absolutely no entitlement as a result of which he received, or there was paid on his behalf, more than $30,000. He received some $25,000 personally. All that money has been dissipated.
In my view, to protect the Motor Accidents Board, it is necessary in this case that the sentence reflects an element of general deterrence to dissuade those who might be minded to act likewise. Even though Popovic may have suggested that the accused claim damages for personal injuries, it clearly required persistent personal action on the part of this accused to receive the monies.
Insofar as the counts of perjury are concerned, I accept that the accused was put in the position of going to court not expecting to be asked about this fictional accident, but when he was asked, he felt he had no option but to adhere to his earlier versions used in support of the claims.
On indictment 1041990, which is for obtaining goods by false pretence, the accused is sentenced to 15 months' imprisonment. On indictment 3081990 charging perjury, the accused is sentenced to three months' imprisonment and that sentence will be served at the expiration of the term of 15 months."
It will be noted that in dealing with the perjury counts, his Honour accepted that the applicant had gone to court for the purpose of giving evidence in Popovic's case not expecting to be asked about this fictitious accident, but when asked, he felt he had no option but to adhere to his earlier version of events used in support of the false claims against the insurers. Similar allegations were made by counsel for both Popovic and Stanic when they appeared for sentence and the sentencing judge in each case accepted these assertions. Thus, upon the perjury charges all three sentencing judges disposed of the offender before them on the basis that there was no pre–existing plan or conspiracy to give false evidence about the fictitious accident in July 1984. Furthermore, it is clear that there were no significant personal differences between the three offenders so far as their antecedents and involvement in the perjury charges were concerned. (Counsel for the applicant attempted to demonstrate that the conduct of Popovic in relation to the perjury offences was more deserving of punishment than was the conduct of Jonceski, but I do not accept this). If all three men had stood for sentence solely on the perjury charges, an argument that they should have been dealt with in a substantially identical manner would be difficult to refute. The relevant principle was aptly stated by Dawson J in Lowe v The Queen (1984) 154 CLR 606 at p623 in the following terms:
"There is no rule of law which requires co–offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even–handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co–offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done: see Reg v Goldberg [1959] VR 311; Pecora v The Queen [1980] VR 499; Reg v Tiddy [1969] SASR 575; Reg v Kite (1971) 2 SASR 94; Reg v Ciccone (1974) 7 SASR 110; Reg v Tisalandis [1982] 2 NSWLR 430; Stroud (1977) 65 Cr App R 150; Reg v Potter [1977] Crim LR 112; see also Reg v Rameka [1973] 2 NZLR 592; cf Reg v Ruane (1979) 1 A Crim R 284. This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co–offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co–offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional': see Stroud (supra at pp153–154); Potter (supra at p113). The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora (supra at p504); Tisalandis (supra at p438)."
Decisions of the Tasmanian Court of Criminal Appeal, both prior to and subsequent to, Lowe's case have consistently recognized the principles expounded in the above passage. See Sutcliffe v The Queen, No 28/1973; Prestage v The Queen [1979] Tas SR 270; Johnson v The Queen [1983] Tas SR 50; Bowerman v The Queen, No 55/1983 and Riley v The Queen [1986] Tas SR 199.
Counsel for the applicant submitted to us that it would be wrong, in comparing sentences imposed upon co–offenders, to ignore the fact that one sentence had been suspended whilst the other was to take immediate effect. Some support for a contrary view may be found in dicta in some of the cases, but it is clear that the Court in Sutcliffe v The Queen (supra), did not regard this factor as irrelevant, although it treated it as having insufficient materiality in the case before it to interfere with the sentence under challenge. In principle therefore I would accept that a sentence which is not suspended may be of sufficient disparity with an immediate custodial sentence to justify the intervention of an appellate court in an appropriate case. However a suspended sentence involves a two stage approach. Firstly, there is the necessity to fix an appropriate term of imprisonment for the crime in question. It is then necessary to turn to the individual circumstances of the offender to consider whether those circumstances justify suspension. (See Reg v Percy [1975] Tas SR 62 per Neasey J at p72 et seq) This process will often involve subtle factors which are difficult to articulate and therefore difficult to analyse upon appeal.
However, in the present case there was a very substantial factor which in my opinion militated against the suspension of the sentences for perjury imposed upon the present applicant irrespective of the suspension of the sentences imposed upon his colleagues in crime. The unchallenged sentences imposed upon him on the same day in respect of false pretences required his immediate incarceration for a period of fifteen months. The learned sentencing judge was therefore not confronted as his two brethren had been earlier when sentencing Stanic and Popovic with the proposition that rehabilitation could be effected without the necessity of imposing an immediate custodial term. Furthermore, as Mrs Warner points out in her book, Sentencing in Tasmania, para10.204:
"When an offender is being sentenced for more than one offence, Courts appear to avoid passing a custodial sentence and a suspended sentence of imprisonment on the same occasion ..."
This statement accords with my own experience. Whilst it is by no means unusual to partially suspend a sentence for an individual offence as a rehabilitative measure, it is, I think, undesirable in principle to impose a substantial penalty in respect of one kind of offence, whilst at the same time, leaving an effective penalty in respect of a dissimilar offence totally in abeyance. Such a course can work injustice to an offender in the event that he appears for sentence for breach of the suspended sentence on a subsequent occasion. An example may illustrate the point. A is sentenced to twelve months' imprisonment for theft and on the same occasion to twelve months' imprisonment suspended for sexual assault. After serving his twelve months sentence for theft he is released from prison and commits a further stealing offence. If he is thereupon presented for breach of the suspended sentence for sexual assault, it may well be that that sentence would not be immediately activated, being so dissimilar from the one which caused him to be brought back to the court. If however, in the original sentencing exercise, he had been sentenced to twelve months suspended for theft, and twelve months immediate custodial sentence for the sexual assault, it would be practically inevitable that, upon representation for breach, the suspended sentence would be activated immediately.
I find in these considerations a sufficient basis for discrimination between Popovic and Stanic on the one hand and the present applicant on the other, and sufficient to justify the course taken by the learned trial judge. It is not submitted that the sentence imposed is in itself manifestly excessive. Consequently it seems to me that the applicant has not shown justifiable grounds for a sense of grievance or a sufficient basis for this Court to interfere with the course taken by Zeeman J
I have already noted that ground 4 of the application for leave to appeal was not argued, but in my opinion, it has no merit. The perjury offences and the two false pretences offences were totally distinct and dissimilar criminal enterprises notwithstanding the fact that they all had their genesis in Mr Popovic's negligent driving early in July 1984. In principle, it is wrong to impose concurrent sentences in respect of crimes which do not form constituent elements of one continuing criminal transaction. Subject only to the overriding considerations inherent in the totality principle, cumulative sentences should be imposed in respect of quite separate and distinct crimes. I am therefore of opinion that it has not been shown that the learned trial judge was incorrect in requiring the perjury sentence to be served cumulatively upon the sentence in respect of the false pretences.
For these reasons, I would refuse the application for leave to appeal.
File No CCA 67/1991
MILAN JONCESKI v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
13 November 1991
I agree. A significant difference between the circumstances of the applicant and those of Stanic and Popovic was that prior to the commission of the crimes of perjury the applicant had defrauded the Motor Accidents Insurance Board of $30,601.08. For that and for the fraud on Stanic's insurer he was sentenced to fifteen months' imprisonment which was to be served. He was going to prison in any event. The judges who sentenced Stanic and Popovic resolved not to send them to prison at all and instead suspended their short sentences entirely. His situation was different than that of the other two offenders.
Recognition that to suspend a term of imprisonment for one offender but not to suspend a term for a "co–offender" may be justified can be found in the decisions of this Court in Sutcliffe v The Queen, No 28/1973; and Bowerman v The Queen, No 55/1983.
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