R v Andrinopoulos
[2006] VSCA 18
•13 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 223 of 2005
| THE QUEEN |
| v. |
| DIMITRIOS ANDRINOPOULOS |
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JUDGES: | WARREN, C.J., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 February 2006 | |
DATE OF JUDGMENT: | 13 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 18 | |
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CRIMINAL LAW – Sentence – Obtaining a financial advantage by deception – Appellant resentenced to total effective sentence of three years, and non-parole period of 20 months
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr. P.G. Priest Q.C. with Mr. M.J. Croucher | Galbally & O’Bryan |
WARREN, C.J.:
I invite Charles, J.A. to state his reasons first.
CHARLES, J.A.:
On 24 May 2005 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging four counts of obtaining a financial advantage by deception. The maximum sentence for this offence is 10 years’ imprisonment. The appellant admitted 14 prior convictions for offences of dishonesty and five findings of guilt from two previous court appearances. During the plea evidence was called from Dr Paul Brown, a forensic psychiatrist, Constantine Glavas, Perry Anton and Dylan Pereira. The appellant also undertook to give evidence against a co-offender in accordance with statements he had made in a tax investigation.
On 28 July 2005 the judge sentenced the appellant on count 1 to two years’, on count 2 to six months’, on count 3 to one year’s, and on count 4 to eight months’ imprisonment respectively. His Honour then said in relation to the individual sentences that –
“In respect of that aggregate sentence, that is a total of four years and two months, it is order (sic) that you serve a minimum term of 20 months’ imprisonment before being considered eligible for parole.”
Leave to appeal against sentence under s.582 of the Crimes Act 1958 was granted by Ormiston, J.A. on 18 November 2005.
The circumstances giving rise to these offences were as follows. In about the year 2000, Khalid Kurukchi (“Kurukchi”) commenced business under the name First Time Finance. The business premises were originally located in Blackburn, but then moved to Dandenong. It was formed to sell financial services, including arranging loans, to the public. The business claimed to be open to help clients who were unable to obtain finance for whatever reason. The appellant was initially a client of Kurukchi and then began working at First Time Finance. Kurukchi had developed a method of obtaining credit cards for clients who were otherwise unable to obtain them by supplying false information on applications. This included changing the spelling of names, and supplying false information in relation to matters such as employment, income and assets. Kurukchi explained the workings of these methods to the appellant who then set about facilitating numerous false and misleading credit card applications on behalf of clients. He was paid a “success fee” by clients, ranging between 10 and 20 per cent of the credit limit of the credit card successfully applied for. These monies were either paid directly to the appellant in cash or deposited into a TAB telephone betting account nominated by him.
Count 1 was a rolled-up count and related to 12 credit cards obtained by applications made to the Commonwealth Bank by the appellant on behalf of clients between 9 August 2001 and 11 April 2003. The only exception was the first transaction, which was a credit card obtained by the appellant in a false name (Demetrios Norinopoulos). The credit cards obtained were listed in Schedule A to the presentment. In each instance some of the details on the applications were false or misleading. This included in some instances the name of the applicant and/or employment details and/or income. False payslips were also provided to the bank with some of the applications. The total of the credit facilities approved on the basis of the false or misleading applications was $180,000. The total amount outstanding on the credit cards was said to be $109,939. The appellant received “fees” from the applications totalling $15,200, which does not include $7,475 in relation to the appellant’s own credit card.
In February 2002 the appellant met with Kurukchi to obtain a credit card. An application was lodged with the ANZ Bank. The application was made in the false name of Demetrios Norinopoulos, and contained false details in relation to employment and income. A credit card with a $10,000 limit was provided by the bank. $9,585 remains outstanding on the card. (Count 2).
Count 3 is a rolled-up count and relates to five credit cards obtained by applications made to the Westpac Bank by the appellant on behalf of clients between 14 August and 5 November 2002. In each instance some of the details on the application were false or misleading, including details such as the name of the applicant and/or employment details and/or income. False payslips were also provided to the bank with some of the applications. The total of the credit facilities approved on the basis of the false or misleading applications was $59,700. The total amount outstanding on the credit cards was $56,191.17. The appellant received “fees” from applicants for credit cards totalling $7,500.
Count 4 was another rolled-up count, and related to two credit cards obtained by applications made to the National Australia Bank by the appellant on behalf of clients between 14 August 2002 and 31 March 2003. The applications were in false names and contained false employment details and income figures. The total of the credit facilities provided on the basis of the false or misleading applications was $23,000. The amount outstanding on the credit cards was $23,950. The appellant received “fees” of $3,700.
Evidence was given by various bank officers from the Commonwealth Bank, Westpac and the National Australia Bank, to the general effect that had the bank been aware that the application lodged was either in a false name or contained false or misleading information, the credit facility would have been declined.
On 23 May 2003 the appellant was interviewed by police in respect of numerous dishonesty offences, and denied any wrongdoing. On 2 April 2004, he was re-arrested and re-interviewed in respect of numerous dishonesty offences and gave largely “no comment” answers in this interview.
The appellant now appeals on a number of grounds, but it is sufficient to mention that the appellant claims that the judge erred in his approach to cumulation on totality and in failing to announce any directions for cumulation, in failing to specify any base sentence, and in implicitly directing a total cumulation of each individual sentence. He also claims by ground 2 to have been denied procedural fairness in that the sentencing judge obtained a pre-sentence report dated 30 June 2005 from a community corrections officer as to the appellant’s suitability for a non-custodial sentence, but nonetheless sentenced him without revealing the existence or contents of the report to the appellant or his legal advisors.
In this Court, Ms Williams for the Crown conceded, very fairly, that grounds 1 and 2 were both made out, in that, first, there is a prima facie rule that every term of imprisonment imposed is to be served concurrently unless otherwise directed, and that in the circumstances of this case it was an unusual course for the sentencing judge to order total cumulation; and that the pre-sentence report should have been made available to the parties prior to sentence, the appellant being thereby denied the opportunity to address the judge on the material contained in it before sentence was imposed. I note also that a County Court judge, unlike a magistrate, has no power to impose an aggregate sentence, although this Court has on several occasions suggested that it would be desirable for the County Court judges to be given such a power.
During the plea the appellant’s counsel put to the judge that the appellant became employed by First Time Finance after falling into debt as a result of obtaining two credit cards in which applications had been made with First Time Finance. It was argued that Kurukchi had exploited the appellant and other people by securing their assistance in this dishonest conduct. The appellant was described as having accessorial liability in respect of the offences, although the appellant was aware that the process was dishonest. However, it was submitted that he did not have an in-depth knowledge of the specific details which enabled the applications to be granted. Reliance was played on the appellant’s personal circumstances and background. He had had a successful business, it was claimed, until his wife gambled away a substantial amount of the funds of his business without his knowledge. This led to the collapse of the business, the financial ruin of the appellant and ultimately the breakdown of his marriage. The appellant’s father died during this period, causing him great distress. Thereafter the appellant’s wife took their daughter with her to reside in the United Kingdom, and the appellant has not seen them again.
Evidence was called on the appellant’s behalf from Dr Paul Brown, a forensic psychiatrist, who said that the appellant suffered a depressive illness in the late 1980s due to the breakdown of his marriage and his financial ruin. In the 1990s he made three suicide attempts, one of which resulted in hospitalisation and the necessity for ongoing treatment over a five-year period. He said that the appellant suffered ongoing depression and was vulnerable to stress, and that his offending on prior convictions could be explained by his mental illness. Dr Brown considered that the appellant had only a very slight prospect of reoffending and his prospects of rehabilitation were good. Constantine Glavas, Perry Anton, and Dylan Pereira all gave evidence supportive of the appellant, to the effect that he was a very hard worker who always helped others and was a caring and loving person, and remorseful. The appellant himself, as I have said, gave an undertaking to give evidence against Kurukchi.
In the circumstances, the appellant’s counsel submitted that the appellant had had a successful business until his wife gambled away most of his business funds. During the course of his marriage break-up the appellant’s wife had taken out intervention orders against him, but then organised meetings with him and subsequently pressed charges for breaches of the intervention orders. The appellant then met a man by the name of Joe Agostini, and with him participated in a stolen car racket resulting in findings of guilt and convictions. The appellant met Kurukchi when he was still vulnerable. It was submitted that a wholly suspended sentence was appropriate due to the appellant’s early plea of guilty, undertaking to give evidence, his marriage breakdown, and his psychiatric illness at the time of offending, and that his prospects of rehabilitation were good and the risk of reoffending low. Notwithstanding all these matters, the offences to which the appellant pleaded guilty were serious. He did not have a minor role in the offending, and he had plainly told clients what they should do to obtain credit cards fraudulently. His role in the offending had been an active one. Furthermore, part of his offending took place during the period of a suspended sentence imposed on 18 December 2000, when the appellant was sentenced to 6 months’ imprisonment suspended for 2 years. This is relevant in two ways, both to his prospects of rehabilitation, but also that he may be required to serve an additional sentence of 6 months, in the event that proceedings are taken for breach.
The appeal must therefore be allowed. In the foregoing circumstances I would propose the following sentences by way of resentence of the appellant. On each count, I would impose the same sentence as that imposed by the sentencing judge. Indeed, Mr Priest, for the appellant, conceded that the sentences imposed on the individual counts could not be taken to be excessive. I would direct that three months of the sentences imposed on counts 2 and 4 and six months of the sentence imposed on count 3 be made cumulative on the sentence imposed on count 1, leading to a total effective sentence of three years’ imprisonment. Taking into account all the matters already referred to, I would fix the same non-parole period of 20 months' imprisonment.
WARREN, C.J.:
I agree.
CHERNOV, J.A.:
I also agree.
WARREN, C.J.:
The orders of the Court are as follows:
1. The appeal is allowed.
2. The sentences below on each of counts 1, 2, 3 and 4 stand.
3.The order below for accumulation is set aside and in lieu thereof the Court orders that three months of the sentences imposed on counts 2 and 4 and six months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1 and on each other, making a total effective sentence of three years.
4.A non-parole period of 20 months is fixed.
5.It is declared at this day the period of 201 days to be reckoned as having been served already and direct that its details be noted in the records of the Court that that direction was made and its details.
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