| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0101 |
| ZSOLT KENYERES | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T FORREST JA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 January 2023 |
| DATE OF JUDGMENT: | 22 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 25 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1316 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Obtain financial advantage by deception – Obtain property by deception – Whether sentence manifestly excessive – Whether applicant’s time in custody for immigration detention properly considered – Mistake in calculating applicant’s time in custody pursuant to an extradition warrant – Whether the sentencing discretion miscarried due to the mistake in calculation – Appeal allowed on amended ground 1 on basis of incorrect calculation of applicant’s time in custody for immigration detention – Applicant resentenced.
Crimes Act1958 s 82; Criminal Procedure Act 2009 s 279(1); Extradition Act 1988 (Cth) ss 15, 22.
R v Renzella (1997) 2 VR 88; Buddle v The Queen [2014] VSCA 232 considered and applied.
| Counsel | |||
| Applicant: | Mr J Penny appearing via the Victorian Bar Pro Bono Assistance Scheme | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Applicant: | Unrepresented | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
J FORREST AJA:
On 19 July 2019, the applicant, now aged 57 years, pleaded guilty in the County Court to ten charges of obtaining financial advantage by deception[1] and five charges of obtaining property by deception[2] (the ‘subject offences’).
[1]Contrary to s 82 of the Crimes Act1958.
[2]Ibid.
Following the plea, the applicant was sentenced on 16 August 2019 by her Honour Judge Cannon as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Obtain financial advantage by deception
10 years
3 years
2
Obtain financial advantage by deception
20 years
4 years
8 months
3
Obtain financial advantage by deception
20 years
2 years
4
Obtain financial advantage by deception
20 years
4 years
8 months
5
Obtain financial advantage by deception
20 years
2 years
6
Obtain financial advantage by deception
20 years
5 years
Base
7
Obtain property by deception
10 years
12 months
8
Obtain property by deception
20 years
2 years
9
Obtain financial advantage by deception
20 years
3 years
10
Obtain property by deception
20 years
4 years and 6 months
9 months
11
Obtain property by deception
10 years
12 months
12
Obtain property by deception
20 years
3 years
13
Obtain financial advantage by deception
20 years
2 years
4 months
14
Obtain financial advantage by deception
10 years
6 months
15
Obtain financial advantage by deception
10 years
12 months
1 month
Total Effective Sentence:
7 years and 6 months
Non-Parole Period:
5 years
Section 6AAA Statement:
9 years and 6 months, with a non-parole period of 7 years
Other Relevant Orders:
291 days reckoned as pre-sentence detention
The applications to this Court
On 1 February 2021, the applicant sought an extension of time within which to file a notice of…
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- AGLC
- Kenyeres v The King [2023] VSCA 25
- Case
- [2023] VSCA 25
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the sentence was manifestly excessive, whether the time spent in immigration detention should be considered in calculating the sentence, and whether the error in calculating the detention period constituted a miscarriage of the sentencing discretion. The appellant argued that the sentence was manifestly excessive given his cooperation with the authorities and the time already spent in custody. Additionally, the appellant contended that the sentencing court erred in not considering the time spent in immigration detention as part of the custodial sentence. Furthermore, the appellant submitted that the error in calculating his time in custody constituted a miscarriage of the sentencing discretion.
The Court of Appeal found that the sentence was indeed manifestly excessive due to the error in calculating the appellant’s time in custody for immigration detention. The court held that the time spent in immigration detention should have been considered as part of the custodial sentence. Consequently, the court allowed the appeal on the basis of the incorrect calculation of the appellant’s time in custody for immigration detention. The appellant was resentenced, taking into account the correct calculation of his time in custody.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 21 March 2018, and pursuant to s 15 of the Extradition Act 1988 (Cth), the applicant was arrested and remanded in custody. He remained in custody pursuant to that warrant until 28 October 2018 (the ‘immigration detention’). During that time, he was held at the Melbourne Assessment Prison and Port Phillip Prison. On 6 June 2018, the applicant consented to being surrendered to the Republic of Hungary in relation to offences allegedly committed in that country. On 20 June 2018, the applicant was interviewed by Victoria Police and charged with the subject offences to which he ultimately pleaded guilty. On 29 October 2018, the applicant (who was in immigration detention) was remanded in custody in respect of the subject offences. On 30 December 2018, the Attorney-General of the Commonwealth determined under s 22 of the Extradition Act 1988 (Cth) that the applicant will be surrendered to the Republic of Hungary. The Attorney-General’s Department proposes to execute the surrender warrant under s 23 once the custodial sentence in this State has been served by the applicant. On 29 October 2018, at the commencement of the committal hearing, the applicant entered a plea of guilty to all charges. The plea was heard on 19 July 2019. The judge described the applicant’s offending as ‘most serious’,[6] and set out the offending circumstances in some detail. [6]Reasons [116]. The applicant fraudulently obtained approximately $240,000 from Stephen Kwok, $189,000 from Tuan Hoang and Thi Thu Ha Le, $655,000 from Stephen Davis, $450,000 from Brian Jamieson, and $132,000 from Christopher McUtchen and Simone Evans.[7][7]Reasons [13]. In each case the sums of money were transferred on the basis that they related to investments in automotive-related ventures which would produce a significant return on the capital placed with the applicant via one of his companies. In most cases the victims made a series of payments to the applicant; all were made upon representations made by him as to the viability of the particular ‘investment’. The principal victim of his frauds was Mr Stephen Davis, a lawyer whom the applicant had met through a mutual acquaintance. On 5 December 2016,[8] Mr Davis invested $75,000 to purchase Porsche car parts under the pretence that it would yield 30 per cent return in three months.[9] [8]Reasons [58]. [9]Reasons [57]. In July of the following year, Mr Davis was induced to pay $350,000 to purchase Porsche car parts which were to be sold in Australia at a significant profit.[10][10]Reasons [60]. In the same month, the applicant persuaded Mr Davis to part with $40,000 for a share in a chauffeur business which the applicant asserted would return a ten per cent profit. Shortly afterwards, Mr Davis was induced to pay $90,000 towards the purchase of a new Porsche, which did not exist.[11] Finally, in August 2017, the applicant induced Mr Davis to contribute $100,000 towards an investment in magnetic car phone charger cables — again no such arrangement existed.[12][11]Reasons [66].[12]Reasons [71].