Prystay v The Queen
[2011] VSCA 315
•17 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0324
| OLEKSANDER PRYSTAY | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and WEINBERG JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 17 October 2011 | ||
DATE OF JUDGMENT: | 17 October 2011 | ||
MEDIUM NEUTRAL CITATION: | [2011] VSCA 315 | ||
JUDGMENT APPEALED FROM: | The Queen v Prystay (Unreported, County Court of Victoria, Judge Duggan, 26 August 2010) | ||
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CRIMINAL LAW – Sentence – Multiple offences of dishonesty committed over a period of two years and five months – Total effective sentence of three years and one month’s imprisonment – Non-parole period of two years and four months – Whether non-parole period manifestly excessive – Whether sufficient account taken of appellant’s depression – Whether insufficient reasons for sentence – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E McKinnon | Lowenberg & Lowenberg |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 26 July 2010 the appellant, Oleksander Prystay, a man born 11 October 1977, pleaded guilty in the County Court to two counts of obtaining property by deception, 16 counts of obtaining financial advantage by deception, one count of attempting to obtain financial advantage by deception and one count of handling stolen goods.
The offences were committed in a period of about two years and five months between 2005 and 2007, when the appellant was aged between 28 and 30.
Following a plea in mitigation, the appellant was sentenced on 26 October 2010 to individual sentences which, with orders for cumulation, produced a total effective sentence of three years and one month's imprisonment. The judge fixed a non‑parole period of two years and four months' imprisonment. He made a declaration in respect of pre‑sentence detention, a compensation order for $94,346.18, and a disposal order. He also made a statement under s.6AAA of the Sentencing Act.
The total effective sentence and the non‑parole period to which I have referred are as recorded in the prisoner return. Orally, the judge stated that the total effective sentence was three years and three months’ imprisonment and the non‑parole period was 30 months.
Grounds of appeal
On 18 March this year, Nettle JA granted the appellant leave to appeal on the following grounds:
1. The learned sentencing judge erred in:
a.Imposing a non-parole period which was disproportionately high, having regard to the head sentence;
b. Imposing an excessive non-parole period; and
c.Failing to provide reasons for such an excessive non-parole period.
His Honour rejected as not being reasonably arguable a proposed ground that the individual sentences, the total effective sentence and the non‑parole period were manifestly excessive.
Circumstances of offending
Count 1 (obtain property by deception) was a rolled up count comprising eight instances of obtaining a Medibank Private membership card by deception, committed between 30 June 2005 and 28 August 2007.
Count 2 (Obtain financial advantage by deception) was a rolled up count comprising eight instances of the appellant falsely representing his name on documents and obtaining a financial advantage from the Commonwealth Bank, committed between 5 July 2005 and 22 November 2007.
Count 3 (Obtain financial advantage by deception) was a specific instance of obtaining a mobile telephone from Sim Plus Mobile Pty Ltd by providing a false name and documents as identification.
Count 4 (Obtain property by deception) was a rolled up count of nine instances of obtaining Learners’ Permits in nine different names from VicRoads, committed between 12 July 2005 and 12 November 2007.
Count 5 (Obtain financial advantage by deception) was a rolled up count of two instances of obtaining Credit Cards from Westpac using false names and documents as identification, committed between 25 July and 3 December 2005.
Count 6 (Obtain financial advantage by deception) was a rolled up count comprising eight instances of obtaining two Credit Cards from ANZ Bank using false names and documents as identification, committed between 13 August 2005 and 12 November 2007.
Count 7 (Obtain financial advantage by deception) was a rolled up count comprising eight instances of obtaining a financial advantage from the Westpac Bank through the operation of eight bank accounts by falsely representing his name and identification documents, committed between 15 August 2005 and 22 November 2007.
Count 8 (Obtain financial advantage by deception) was a single instance count of obtaining a charge card facility from American Express by providing a false name and documents as identification.
Count 9 (Obtain financial advantage by deception) was a rolled up count comprising two instances of obtaining two Credit Cards from ANZ Bank using false names and documents as identification, committed between 21 September 2005 and 5 October 2005.
Count 10 (Obtain financial advantage by deception) was a rolled up count comprising eleven instances of obtaining a financial advantage from Telstra, namely eleven mobile phone contracts, by falsely representing his name and identification documents, committed between 29 October 2005 and 15 December 2007.
Count 11 (Attempted obtain financial advantage by deception) was a rolled up count comprising two instances of attempting to obtain a financial advantage from Telstra, namely two mobile phone contracts, by falsely representing his name and identification documents, committed between 14 November 2005 and 18 November 2005.
Count 12 (Obtain financial advantage by deception) was a single instance count of obtaining a transaction account from Bank West by providing a false name and documents as identification, committed on or about 5 December 2005.
Count 13 (Obtain financial advantage by deception) was a rolled up count comprising three instances of obtaining a financial advantage from Singtel Optus, namely three mobile phone contracts, by falsely representing his name and identification documents, committed between 9 December 2005 and 9 June 2006.
Count 14 (Obtain financial advantage by deception) was a rolled up count comprising four instances of obtaining a financial advantage from the St George Bank through the operation of four bank accounts, by falsely representing his name and identification documents, committed between 20 December 2005 and 13 January 2006.
Count 15 (Obtain financial advantage by deception) was a rolled up count comprising three instances of obtaining a financial advantage from the Bank of Queensland through the operation of three bank accounts, by falsely representing his name and identification documents, committed between 11 January 2006 and 13 January 2006.
Count 16 (Obtain financial advantage by deception) was a rolled up count comprising two instances of obtaining a financial advantage from the National Australia Bank through the operation of two bank accounts, by falsely representing his name and identification documents, committed on 13 January 2006.
Count 17 (Obtain financial advantage by deception) was a rolled up count comprising four instances of obtaining a financial advantage from Suncorp Metway Bank through the operation of four bank accounts, by falsely representing his name and identification documents, committed between 16 January 2006 and 27 November 2007.
Count 18 (Obtain financial advantage by deception) was a single instance count of obtaining a charge card facility from Citibank by providing a false name and documents as identification, committed on or about 22 November 2007.
Count 19 (Obtain financial advantage by deception) was a single instance count of obtaining a Prime Access Account from Credit Union Australia, by providing a false name as identification, committed on or about 23 November 2007.
Count 20 (Handling stolen goods) was a single instance count of handling a Medibank Private card, knowing the card to be stolen, the offence being committed on or about 12 August 2005.
The offending commenced when the appellant applied for learner driver’s permits from VicRoads under false names. It appears that he provided, in support of the applications, false passports purportedly issued by a number of different countries. The appellant also attended at Medibank Private offices and obtained health insurance and customer cards under each of the identities. The learner's permits, the Medibank cards and other false documents (including a multiplicity of passports), were used to open bank accounts in the false names and on other occasions to apply for credit cards and to open mobile telephone accounts.
There were losses of about $95,000 attributable to the credit card and mobile telephone fraud.
The bank accounts established under false names were to be used as the receptacles for moneys ‘hacked’ from accounts held by other customers. The funds were then to be withdrawn. Fortunately, that part of the fraud was nipped in the bud. Although a number of amounts were got out of customers’ accounts and got into the false accounts, only in one instance was money withdrawn from a false account before the fraud was discovered.
The appellant’s personal circumstances
I need only say a little about the appellant's personal circumstances. He first came to Australia in 2001 from the Ukraine on a working assignment. His visa was cancelled without his knowledge and he spent some time in the Maribyrnong Detention Centre in about 2002. He was granted bridging visa and, whilst that was current, he met the lady who became his first wife. He was ultimately deported. The lady who became his wife moved to the Ukraine with him. They were married there and had a child. She returned to Australia and he later followed. The relationship failed and they divorced.
He returned to the Ukraine, it seems, in early 2006, where he met and married another lady and returned to Australia in May 2007. He went back to the Ukraine again in 2009 before returning to Australia and then being arrested and charged.
In the period between his arrest and plea, he worked satisfactorily. Those who employed him spoke well of him.
On the plea, the appellant claimed, through counsel, that he was but a small cog in a large wheel of offending and that others stood to gain from what he had done in establishing the necessary substructure for the superstructure of offending.
The other matter particularly emphasised on the plea was that for a long time the appellant had suffered from depression; and that this had worsened in the period preceding the plea to the point where he had been admitted to hospital because of suicide attempts.
Disposition of the appeal
I refer first to ground 1, which focuses on the non‑parole period which the judge fixed. It was about 75 per cent of the head term. The judge did not explain why he had fixed a non‑parole period which was a relatively high proportion of the head term. Such proportion is more readily explicable where the head term is lengthy.[1]
[1]Romero v R [2011] VSCA 45.
But I am not at all persuaded that the non‑parole period which the judge fixed was too great. Putting to one side for the moment the reasons which his Honour gave, the counts alleged against the appellant comprehended a great deal of offending, committed from time to time over a period of nearly two and a half years. In my opinion it was serious and sustained offending, and certainly it involved considerable sophistication. Accepting, as the Crown did, that there were others involved in the fraud, I do not think it is possible to characterise the appellant's contribution as being minor. The offending itself was of the kind in respect of which punishment, general and specific deterrence are important sentencing considerations.
I note also that cessation of the initial offending and its resumption appears to have coincided with the appellant returning to his home country and then returning to Australia. In other words, it appears his non-offending between early 2006 and mid 2007 had nothing to do with him choosing to act lawfully.
Again, accepting for the moment that others were involved in this criminal conduct, the judge did not accept that the appellant's personal gain was limited to $15,000 out of the $94,000 which had constituted the immediate proceeds of the offending. I see no reason to disagree with his Honour's conclusion.
I have referred to the circumstances which were said to go in mitigation. I will not repeat them.
It is next true that on the plea the prosecutor nominated a head sentence range of between two and a half and four years, and a non‑parole period of between one and two years. Thus, the Crown advanced a non‑parole period which did not exceed 50 per cent of the head term. The judge, however, fixed a non-parole period which was much higher proportion of the head term. He was not obliged, of course, to act upon the prosecutor's submission. But it is unfortunate that, in departing from it, his Honour did not say why he was doing so.
Even if, which I think is a tenable position for the appellant, it could be argued that the judge's reasons were insufficient to explain why he set a proportionately quite high non‑parole period and why he departed as far as he did from the prosecutor's submission as to range, the insuperable difficulty for the appellant is that there is really no basis for sensibly arguing that a different and lower non‑parole period should have been imposed. I am not satisfied that anything less than 28 months’ imprisonment would constitute the minimum time which justice required the appellant to serve in all the circumstances of the case, circumstances which I have outlined already. Somewhat paradoxically, what I regard as the leniency in the individual sentences imposed, and in the orders for cumulation, mean that a non‑parole period of less than the period imposed could be fairly described as derisory.
I need say no more about ground 1, and ground 2 can be shortly dealt with.
It seeks to add together the sentence passed and the alleged insufficiency of reasons in order to demonstrate that the judge must have erred by giving insufficient weight to matters in mitigation and excessive weight to matters adverse to the appellant. Nettle JA granted leave to appeal on this ground in a very limited respect – that is, to permit argument that the judge's sentencing remarks failed to refer to the possible significance of the appellant's depleted mental state with respect to general, and perhaps specific, deterrence. That significance could bear upon the individual sentences imposed and the orders for cumulation as well as upon the non‑parole period.
His Honour did not grant leave to the appellant to appeal on the ground of manifest excess, and this ground cannot be used as a proxy for that other ground.
The judge's sentencing remarks did not overtly disclose what significance, if any, he attached to the appellant's depression in connection with his moral culpability and respecting the issues of general and specific deterrence. But in my view, the individual sentences and the orders for cumulation, which I regard as lenient, bespeak his Honour's acceptance of the relevance of the appellant's depression with respect to those sentencing considerations. It is undesirable that such a matter should only appear as a matter of inference, but I consider the inference is clear enough in the present case.
I add that, if I had not been satisfied that such an inference should be drawn, it would not have availed the appellant because I would not have been satisfied that different individual sentences should be passed or other orders for cumulation made. I have already expressed an opinion to similar effect in the case of the non‑parole period.
I would dismiss the appeal.
WEINBERG JA:
I agree. I would add only this. Had there been a Crown appeal on the basis of manifest inadequacy I would have given that matter serious consideration.
ASHLEY JA:
The formal order of the Court is that the appeal is dismissed.
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