R v Athanasas - [2014] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ATHANASAS
[2014] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Parker)
4 March 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
The appellant obtained monies from victims by deceiving them into investing in a bogus business. The appellant was sentenced to eight years' imprisonment with a non-parole period of four years and nine months' imprisonment after pleading guilty to five counts of theft totalling $564,000. The appellant contended that the head sentence was manifestly excessive when compared to sentences for similar offending. The appellant's conduct was no less serious than cases featuring a breach of trust.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v King (1936) 55 CLR 499; Queen v Morse (1979) 23 SASR 98; Markarian v R (2005) 215 ALR 213; Ienco v Kraft (1990) 53 SASR 40; R v Jongewaard [2009] SASC 346; R v Nemer (2003) 87 SASR 168, applied.
Munda v Western Australia [2013] HCA 38; R v Cavanagh [1999] SASC 418, discussed.
R v Dubois (2004) 88 SASR 304; R v Powell (2001) 217 LSJS 164; R v Hann (unreported, Supreme Court of South Australia, S6742, 17 August 1998); Police (SA) v Curtis (2004) 145 A Crim R 587; R v Davies (1996) 88 A Crim R 226; R v Payne (2004) 89 SASR 49, considered.

R v ATHANASAS
[2014] SASCFC 19
Court of Criminal Appeal: Sulan, David and Parker JJ
SULAN J
Introduction

This is an appeal against sentence. The appellant, Peter Athanasas, pleaded guilty to five counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is 10 years’ imprisonment. The offending occurred between 1 March 2005 and 20 May 2008. The total amount stolen from five victims was $564,000. The sentencing Judge imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) of eight years’ imprisonment, with a non-parole period of four years and nine months’ imprisonment.
Background
The first count to which the appellant pleaded guilty occurred between 1 March and 7 April 2005, when the appellant received $50,000 from his victim. The second count totalled $150,000, the money having been received between 6 April and 27 May 2005. The third count of the theft of $100,000 occurred between 3 August and 30 August 2005. The fourth and fifth counts involved a theft from a husband and wife totalling $64,000 on the first occasion, and $100,000 on the second occasion. Those amounts were stolen from the appellant’s victims at a time after the appellant had been declared bankrupt.
The appellant represented to the victims that he was involved in a business of buying and selling mobile phones. The five victims gave money to the appellant, believing that they were investing funds in what they were told was a successful business. He offered them significant returns upon their investments. A number of the victims borrowed money to invest in the business.
No genuine business ever existed. The appellant used the money to promote his lifestyle. At no time did the appellant use the monies he stole to support a genuine business.
The effect the appellant’s offending had upon his victims left them emotionally and psychologically damaged. All of them have encountered financial stress as a result of the offending. When the appellant obtained their money, he never intended to use it to his victims’ benefit. There was never any prospect of them recovering their losses.
At the time that he was sentenced, the appellant was 43 years of age. He had no prior convictions of relevance. He had previously worked as a taxi driver, but was unable to continue that work after he had been assaulted during the course of his employment. He had suffered a post-traumatic stress disorder after that assault which occurred in September 2005. He suffers from anxiety. He has an 11-year-old daughter who resides with her mother in Melbourne.
The sentence
The sentencing Judge observed that each offence involved a separate incursion into crime. He imposed one sentence pursuant to s 18A of the Sentencing Act. In so doing, he observed that, had he sentenced the appellant for each offence separately, he would have made the sentence on counts 1 and 2 partially concurrent, the sentence on count 3 cumulative, and the sentences on counts 4 and 5 concurrent, but cumulative with the other sentences. There was a delay of about three years from the time of arrest to the date of sentence. The Judge observed that much of the delay was due to factors relevant to the appellant. The pleas of guilty came at a very late stage of the proceedings. The Judge gave credit of 15 per cent for the plea. He observed that there had been some considerable delays in the matter finally being resolved, during which time the appellant had spent some time in custody and a lengthy period on home detention bail. The Judge reduced the sentence by six months, having regard to time spent by the appellant in custody and on home detention bail.
In total, $564,000 had been lost and no restitution has been made. The sentencing Judge said:
The starting point is a sentence of imprisonment for ten years. I reduce that to eight years to allow for the credit of 18 months for your pleas of guilty and six months for the time spent in custody and on strict home detention bail.
He fixed a non-parole period of four years and nine months.
The appeal
The sole ground of appeal is that the sentence is manifestly excessive. The principles which govern the determination of such appeals are well established and need not be repeated here.[1] Counsel for the appellant submits that the starting point of ten years is excessive, with the result that the head sentence and non‑parole period are manifestly excessive.
[1] House v King (1936) 55 CLR 499, 504-5; Queen v Morse (1979) 23 SASR 98, 99; Markarian v R (2005) 215 ALR 213, [25]; Ienco v Kraft (1990) 53 SASR 40, 42; R v Jongewaard [2009] SASC 346, [40].
The appellant’s counsel submits that the offending was not as serious as cases involving a breach of trust when a person is in a fiduciary relationship with their victims. It is contended that the sentencing Judge placed undue weight on the sentences imposed in those cases when determining the starting point of the sentence in the present case. Counsel submits that it is less serious than when an employee of a company breaches the trust of their employer. Counsel referred to a number of authorities and submits that they are cases in which lesser sentences have been imposed in more serious cases.[2] The submission is not sustainable on an analysis of those authorities.
[2] R v Cavanagh [1999] SASC 418; R v Dubois (2004) 88 SASR 304; R v Powell (2001) 217 LSJS 164; R v Hann (unreported, Supreme Court of South Australia, S6742, 17 August 1998); R v Davies (1996) 88 A Crim R 226.
First, as this Court has stated previously, comparing sentences in other cases is of limited assistance when considering whether a sentence is manifestly excessive. Each case will have different features. The personal circumstances of each defendant differ. I repeat the observations of Doyle CJ in R v Nemer:[3]
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in the given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
This may be disconcerting to some. But it is important that the public understand it.
[3] (2003) 87 SASR 168 at [6]-[9]; see also R v Payne (2004) 89 SASR 49.
More recently, the High Court has reiterated the principles referred to by the former Chief Justice. In Munda v Western Australia, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ observed:[4]
... First, the appellant’s argument assumes that only “closely comparable” cases can provide a yardstick with which to judge the adequacy of a sentence. In this regard, the appellant invoked this Court’s decision in Hili v The Queen in support of the proposition that, absent a marked departure by Commissioner Sleight from closely comparable cases, the Court of Appeal could not conclude that the original sentence was manifestly inadequate. But in Hili it was distinctly not said that a yardstick derived by reference to comparable cases was an essential precondition of a conclusion that a sentence was manifestly inadequate. It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v Da La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not the range is correct. In particular, the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. (Citations omitted).
[4] [2013] HCA 38 at [39].
Secondly, on an analysis of the authorities, the head sentences were not so at variance from the sentence imposed upon the appellant to support the submission that the starting point in this case was so high that it would lead to a conclusion that it was manifestly excessive. Ultimately, the Court must consider whether the sentencing discretion has miscarried due to an identified error, or because the sentence is so excessive that error has been demonstrated.
As to the submission that the appellant’s conduct was less serious than that of a person who acts in breach of trust, it is to be observed that the appellant convinced people who placed their trust in him to invest in an enterprise which never existed. The fact that no fiduciary relationship existed does not reduce the seriousness of his conduct. The offending involved a subterfuge of deceit, involving the operation of a spurious business that spanned over many years. At no stage did the appellant intend to use the money to benefit his victims. Unlike many who are charged with similar offences who have taken money intending to repay their victims, the appellant never demonstrated such an intention.
The offending in this case was pre-meditated, deliberate, repetitive and involved deceit. There has been no restitution to the victims. Small amounts of money that were paid to the victims were made to entice further investment and were an integral part of the scam designed to perpetuate the fraudulent activity.
In R v Cavanagh,[5] the offending was characterised as stealing on a grand scale. It was premeditated, deliberate and repetitive. It had most, if not all, the characteristics of offending in this case. The amount lost was $240,000, less than half the amount lost in this case. The Court considered that deterrence must be a predominant factor in such cases.
[5] [1999] SASC 418.
There is little to mitigate the appellant’s conduct. In any event, the observations of Gray J in Police (SA) v Curtis are pertinent:[6]
The degree of trust reposed in a defendant is a particularly important factor to be considered when sentencing. In cases of abuse of position of trust, good character and an absence of prior convictions are typical and generally have little weight because of the expressed need for a general deterrent sentence. Nor do immediate intentions to repay financial loss or personal humiliation have significant weight for they are factors commonly encountered in such cases.
[6] (2004) 145 A Crim R 587.
The sentencing Judge took into account all relevant matters. He gave the appellant credit for his pleas of guilty, and for time spent in custody and on home detention. In my view, he had regard to all relevant personal factors. The sentence he imposed and the starting point were, in my view, consistent with sentences imposed for this type of offending.
The sentence and non-parole period were appropriate.
I would dismiss the appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Sulan J.
PARKER J. I would dismiss the appeal. I agree with the reasons of Sulan J and I have nothing to add.