Milosevski v Police No. Scgrg-00-624

[2000] SASC 342

MILOSEVSKI v POLICE
[2000] SASC 342

Magistrate’s Appeal

1................ MARTIN J. (Ex tempore) The appellant pleaded guilty to four counts of false pretences, contrary to s 195 of the Criminal Law Consolidation Act 1935. A single sentence of 18 months imprisonment was imposed and a non-parole period of nine months was fixed. The appellant appeals against the sentence on the basis that it is manifestly excessive and should have been suspended.

1. Although four offences were charged, the offending arose out of one scheme designed to obtain by false pretences funds from the National Australia Bank (“the NAB”) for the purposes of purchasing the real estate and business of the Glenelg Rest Home. The appellant and her cousin, Mr John Gorcilov, negotiated with the proprietor of the rest home and agreed upon a sale price of $1.26 million. The purchase was in the name of Felran Pty Ltd, of which the appellant was the sole director and secretary.  The appellant and Mr Gorcilov approached the NAB seeking finance. They made a number of false representations to the NAB. They falsely stated that the purchase price was $1,990,000. The appellant falsely stated that she had worked at the Rest Home for approximately two to three years on a part-time basis and provided false information concerning her financial circumstances. False profit and loss statements for the Rest Home were created and provided to the NAB. False information was also provided to a valuer who prepared a valuation of the property and business. The valuation, based on the false information, was given to the NAB.

2. The false information provided by the appellant and Mr Gorcilov was accepted and relied upon by the NAB. As a consequence, the bank agreed to provide a loan of almost $1.2 million. Settlement occurred on 29 April 1997 and the advance of $1.2 million was drawn down by way of the four cheques which were the subject of the four charges.

3. The business failed. Receivers were appointed on 28 May 1997. In July 1998 the NAB sold the Rest Home by mortgagee sale and received a net $609,446.24. Taking into account interest that accrued on the account since the provision of the advance, at the time of the mortgagee sale the loss to the NAB was $741,306.

4. The scheme was well-planned and successfully carried into effect. The Magistrate accepted that the driving force behind the scheme was Mr Gorcilov and that the appellant played a lesser role. His Honour accepted that the appellant acted out of a sense of obligation to Mr Gorcilov because the appellant believed she was obliged to repay him for assisting her in respect of a previous matter. His Honour accepted that the appellant had succumbed to pressure applied by her cousin, and family pressures generally.  Nevertheless, it must be said that the appellant played an active and essential role in providing the false information to the NAB.

5. The Magistrate correctly emphasized the seriousness of the offending and there was no error in his Honour’s assessment of the facts. In addition, his Honour referred to all relevant factors of mitigation.  A possible error suggested by counsel in written submissions was pursued only faintly during oral submissions. In my opinion, in the passage called into question, his Honour was merely expressing the view that, in all the circumstances before him, the seriousness of the offending outweighed the personal circumstances and suspension was not justified.

6. Notwithstanding the powerful mitigating circumstances to which I will refer, in my opinion it cannot be said that a sentence of 18 months imprisonment was manifestly excessive. Counsel for the appellant did not contend otherwise. Similarly, the non-parole period of nine months was well within the range of the sentencing discretion. The critical question is whether this Court is justified in interfering with the sentence for the purpose of suspending it.

7. The appellant had no prior convictions. She pleaded guilty at the earliest possible opportunity and the Magistrate accepted that she was contrite. Importantly, the appellant had co-operated with the authorities and had agreed to give evidence against Mr Gorcilov.

8. The Magistrate was provided with a report from a clinical forensic psychologist, Mr Fugler. That report provided useful personal background and information as to the circumstances of the offending. It disclosed a background of episodes of depression since the early 1990s and testing provided a result suggestive of clinical depression. Mr Fugler concluded that the appellant’s personality profile indicates that she is a submissive individual, who is likely to be compliant and confused under pressure. In his opinion she required psychiatric treatment for clinical depression and anxiety.

9. A further factor of mitigation advanced by the appellant concerned the appellant’s nine year old daughter who has contracted Perthes disease. The disease has attacked the bone in one of the child’s legs which has resulted in periods of hospitalisation and the need for ongoing medical attention and supervision. The appellant’s husband is serving a sentence of imprisonment and the appellant is responsible for the care of the child.

10. Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 requires the court to take into account the probable effect any sentence would have on the dependants of the appellant. However, that section reflects the position at common law and it is only in exceptional circumstances that the probable effect of a sentence upon dependants can be taken into account (R v Adami (1989) 51 SASR 229 and R v Edwards (1996) 90 A Crim R 510.)

11. On the information before the Magistrate, I doubt that the circumstances of the child were sufficiently serious to be classified as exceptional. On this appeal, additional material concerning the child was tendered by consent. Mr Fugler examined her in September 2000. He reported that she is frightened easily and spends many nights in her mother’s bed. When the appellant was imprisoned for a short period following the imposition of sentence, the child recalled crying and ‘staying in her room a lot.’ She experienced mood swings and irritability when her mother was absent. These emotions must be seen in the context of the absence of the child’s father. Mr Fugler concluded that the child and the appellant have a close emotional bond which will be disrupted if the appellant is imprisoned.  While acknowledging that it is difficult to predict accurately the reaction of the child should the appellant now be imprisoned, given the child’s previous response to separation Mr Fugler expects a period of behavioural and emotional disturbance to occur.  The emotional disturbance that the child has or might experience if the appellant is imprisoned is not surprising. Considered in isolation such an emotional reaction cannot be regarded as exceptional. Viewed against the background of the imprisonment of the father, however, the child’s emotional and physical health is difficult to ignore. In addition, it appears that no other member of the extended family is able to care properly for the child.  In the particular circumstances of this matter, while strictly speaking it might be said that the impact upon the child is not exceptional, the combination of circumstances leads me to the view that the impact should be taken into account.

12. A further report from Mr Fugler concerning the appellant was also received by consent.  He examined her on 25 September 2000. Mr Fugler was able to assess the impact of the incarceration of the appellant for one week following her conviction and before being released on bail pending the result of the appeal. Not surprisingly the appellant’s depressed state deepened when she was in prison and she developed a sleep disorder. She cried extensively and felt intimidated and fearful of other inmates. She felt unable to cope with the behaviour of other prisoners who taunted her. At the time of the examination the appellant was still depressed and required psychiatric treatment. Her mental health would almost invariably deteriorate if she is now imprisoned.  That short period of imprisonment was a salutory lesson to the appellant. The issue of personal deterrence now assumes little significance.

13. Women with dependent children should understand that if they commit serious offences ordinarily the existence of dependent children will not of itself prevent the imposition of a sentence of imprisonment to be served. However, in this matter the totality of the circumstances to which I have referred created a powerful case for suspension of the sentence of imprisonment. In particular I refer to the subservient role in the offending considered in conjunction with the appellant’s prior good character, personality, mental health, plea of guilty, contrition and assistance to the authorities. The importance in this regard of assistance to the authorities should not be underestimated.

14. In my opinion the cumulative effect of those various matters compelled suspension of the sentence. I am fortified in my view by the material that has been tendered on the appeal. The appeal is allowed for the limited purpose of suspending the sentence of imprisonment. I will hear counsel further as to the conditions of suspension.