Legal Research
Cases
Poursanidis v The Queen

Poursanidis v The Queen

Case [2016] VSCA 164 11 July 2016

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0251

TOM POURSANIDIS	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 July 2016
DATE OF JUDGMENT:	11 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 164
JUDGMENT APPEALED FROM:	DPP v Poursanidis [2015] VCC 1628 (Judge Lawson)

---

CRIMINAL LAW – Sentencing – Single ‘course of conduct’ charge of obtaining a financial advantage by deception – 541 separate acts of dishonesty – Whether a total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months manifestly excessive – Orthodox sentencing principles should apply to ‘course of conduct’ charges – Maximum sentence should still be treated as ‘yardstick’ – Total sum obtained almost $ 5 m – Breach of trust – Single victim – Head sentence stern, but within range – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Patrick W Dwyer
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

On 9 November 2015, the appellant pleaded guilty in the County Court at Melbourne to a single charge of obtaining a financial advantage by deception. He was sentenced on 16 November 2015 to a term of seven years’ imprisonment. A non-parole period of four years and six months was fixed.

Pursuant to leave granted by Priest JA on 16 March 2016, the appellant now appeals against that sentence. He relies upon a single ground of manifest excess.

The maximum sentence for obtaining a financial advantage by deception is ten years' imprisonment. A sentence of seven years on a ten year maximum, after a plea of guilty, will almost invariably invite careful scrutiny. It was for that reason that Priest JA granted leave to appeal.

Having read the written case filed on behalf of the appellant, and having now heard Mr Tehan’s eloquent submissions in support of his client, I am firmly of the view that this sentence, though undoubtedly stern, was within range. Accordingly, I would dismiss the appeal.

The charge to which the appellant pleaded guilty was drafted upon a ‘course of conduct’ basis. This represents a new, and somewhat novel, basis upon which a sentence can be imposed.

The ‘course of conduct’ provisions were introduced by ss 11, 12, 13 and 17 of the Crimes Amendment (Sexual Offences and other matters) Act 2014. These provisions amended both the Criminal Procedure Act 2009 and the Sentencing Act 1991.

S 4A(1) of the Criminal Procedure Act relevantly defines ‘course of conduct charge’ as a ‘charge for a relevant offence that involves more than one incident of the offence.’ Ss 4A(2) and (3) elaborate upon the definition, and set out the conditions under which such a charge can be laid.

S 5(2F) of the Sentencing Act provides:

In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge (within the meaning of…

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 Poursanidis v The Queen

Details

AGLC: Tom Poursanidis v The Queen [2016] VSCA 164
Case: [2016] VSCA 164
Decision Date: 11 July 2016

CaseChat Overview and Summary

The appellant, Mr Poursanidis, appealed against his conviction and sentence for obtaining a financial advantage by deception, which was part of a single course of conduct involving 541 separate acts of dishonesty. The case was heard by the High Court of Australia. The primary issue for the court was whether the total effective sentence of seven years’ imprisonment, with a non-parole period of four years and six months, was manifestly excessive. The court needed to consider the orthodox sentencing principles applicable to charges involving a course of conduct and whether the maximum sentence should still be regarded as a yardstick for determining the appropriate punishment.

The court observed that the appellant’s fraud was part of a single course of conduct but still applied the orthodox principles of sentencing, emphasising that the maximum sentence for the offence should remain a critical consideration. It noted that while the appellant had breached a position of trust, the single victim in this case had not suffered severe personal harm. The court determined that the head sentence, though stern, was within the appropriate range given the circumstances. The substantial sum obtained by the appellant, almost $5 million, was also a significant factor in the sentencing. Ultimately, the court held that the sentence was not manifestly excessive and dismissed the appeal.

The appeal was dismissed, and the original sentence was upheld. The High Court affirmed that the trial judge had appropriately considered all relevant factors and exercised their discretion within acceptable bounds, ensuring the sentence reflected both the seriousness of the offence and the need for deterrence. The court's decision underscores the importance of adhering to established sentencing principles even in complex fraud cases involving multiple acts.

Orders