R v Bandjak

Case [2011] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BANDJAK

[2011] SASCFC 19

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)

1 April 2011

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - SENTENCE

Appellant convicted of one count of deception contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA) - whether judge made errors of fact that were relevant to sentence - whether judge erred in refusing to suspend.

Held:  appeal allowed - sentence set aside and new sentence of two years three months imprisonment imposed with non-parole period of sixteen months, not suspended.

Criminal Law Consolidation Act 1935 (SA) s 139; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Robertson (1984) 115 LSJS 51; Kovacevic v Mills (2000) 76 SASR 404; Matulich v Police [2007] SASC 440; R v Stubberfield (2010) 106 SASR 91; R v Afford (unreported, Supreme Court of South Australia, Court of Criminal Appeal, No 8 of 1984); SA Police v John (1995) 181 LSJS 51; R v Jennings (1996) 187 LSJS 222; Cox v Betts (unreported, Supreme Court of South Australia, No 2671 of 1984); R v Allen [2005] QCA 73; R v Sheehan [2007] QCA 409; R v O'Keefe [1959] Qd R 395; Radjevic v Police (1997) 67 SASR 478; R v O'Keefe (1992) 60 A Crim R 201, discussed.
R v Wirth (1976) 14 SASR 291; R v W, TB (No 2) (2006) 94 SASR 254, considered.

R v BANDJAK
[2011] SASCFC 19

Court of Criminal Appeal:       Gray, Vanstone and White JJ

GRAY J:

Introduction

  1. This is an appeal against sentence. 

    Background

  2. Peter Bandjak, the defendant and appellant, was convicted on his plea in the District Court to the offence of deception, contrary to section 139(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is imprisonment for 10 years.

  3. The defendant deceived his victim by falsely stating that he would invest $100,000.00 for her and on her behalf in an unnamed investment scheme, and by doing so dishonestly caused her to suffer a detriment in the amount of $90,000.00. 

  4. The Judge sentenced the defendant to a term of imprisonment of three years and one month.  A non-parole period of two years was fixed.  In determining the head sentence the Judge made a reduction on account of the plea of guilty of five months. 

  5. The defendant submitted on the appeal that the sentencing Judge proceeded on two misapprehensions of fact and that, as a consequence, his discretion miscarried.  I have reached the conclusion that the defendant’s submission is well founded, that the sentence imposed should be set aside and that the defendant should be resentenced.  In particular, I am of the view that the defendant should be sentenced to a term of…

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AGLC
R v Bandjak [2011] SASCFC 19
Case
[2011] SASCFC 19
Decision Date

CaseChat Overview and Summary

The appeal concerned Peter Bandjak, the appellant, who had been convicted in the District Court of South Australia on his plea of guilty to one count of deception, contrary to s 139(b) of the *Criminal Law Consolidation Act 1935* (SA). The dispute centred on the sentence imposed by the sentencing judge, with the appellant arguing that errors of fact had been made which led to a miscarriage of discretion and an excessive sentence, including the refusal to suspend the term of imprisonment.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge had made factual errors relevant to the determination of sentence, and whether the judge erred in refusing to suspend the imposed term of imprisonment. The appellant contended that these misapprehensions led the judge to treat the offending more seriously than the facts warranted.

The Court found that the appellant's submissions were well-founded. It identified two specific misapprehensions by the sentencing judge: firstly, the judge incorrectly characterised the appellant as a financial advisor when he was a security officer, and secondly, the judge attached little significance to the appellant's previous good character, viewing his apparent respectability as a tool to gain the victim's trust. The Full Court determined that these errors led to an inflated assessment of the gravity of the offending.

Allowing the appeal, the Court set aside the original sentence. A new sentence of two years and three months imprisonment was imposed, with a non-parole period of sixteen months. This sentence was not suspended.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. Background Peter Bandjak, the defendant and appellant, was convicted on his plea in the District Court to the offence of deception, contrary to section 139(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is imprisonment for 10 years. The defendant deceived his victim by falsely stating that he would invest $100,000.00 for her and on her behalf in an unnamed investment scheme, and by doing so dishonestly caused her to suffer a detriment in the amount of $90,000.00. The Judge sentenced the defendant to a term of imprisonment of three years and one month. A non-parole period of two years was fixed. In determining the head sentence the Judge made a reduction on account of the plea of guilty of five months. The defendant submitted on the appeal that the sentencing Judge proceeded on two misapprehensions of fact and that, as a consequence, his discretion miscarried. I have reached the conclusion that the defendant’s submission is well founded, that the sentence imposed should be set aside and that the defendant should be resentenced. In particular, I am of the view that the defendant should be sentenced to a term of imprisonment because of the gravity of the offending, but that having regard to his personal antecedents, his contrition and remorse, and an unusual circumstance concerning the prospect of full restitution, the sentence of imprisonment should be suspended. My reasons follow. The circumstances of the offending were that in 2003, by deception, the defendant through false representation had a fellow employee entrust him with $100,000.00 to invest in an unidentified investment scheme. The defendant and his victim worked together at a car park in Adelaide. The defendant promised a good return and indicated that security would be available. Soon after the monies had been provided to the defendant, he returned $10,000.00 following a request from the victim. The defendant used the balance of the monies for his own purposes. The victim repeatedly made requests for repayment, but to no avail. The defendant was charged in February 2008 and entered a plea of guilty on 19 April 2010, 12 days prior to the commencement of trial. It was complained on appeal that the sentencing Judge made two factual errors which caused the sentencing process to miscarry, causing a manifestly excessive sentence to be imposed and causing the Judge to mistakenly refuse to suspend the term of imprisonment which he imposed. In my view, the misapprehensions led the sentencing Judge to treat the defendant’s offending more seriously than was the case. The first misapprehension relates to the following parts of the Judge’s remarks:You were a financial advisor. Your victim worked for you. You represented to her that you could obtain an attractive interest rate for her and that you owned property which would provide security. Your representations were false. ……[L]ittle significance can be attached to your previous good character because your apparent respectability obviously enabled you to gain your victim’s trust, and those who occupy positions such as that which you occupied, and who might be minded to do what you did, must be deterred from doing so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that allowing full restitution to be made and suspending the sentence will lead to a just result in the present case. The defendant will have been sentenced to a term of imprisonment, he will have served some months in custody and he will be subject to a suspended sentence good behaviour bond for three years. A substantial financial burden of more than $120,000.00 will have been incurred in effecting restitution. I consider that any member of the public would treat such a sentence as providing appropriate general deterrence. Insofar as personal deterrence remains a consideration I consider that the proposed sentence would provide that deterrence. Conclusion I would allow the appeal and set aside the sentence imposed by the sentencing Judge. I would resentence the defendant to a term of imprisonment of two years. I would fix a non-parole period of 15 months. I would suspend that sentence on the defendant entering into a three-year supervised good behaviour bond. However, before making any formal orders I would require the payment to Court of the amount of $121,000.00 so that restitution can be effected. In the event that the payment into Court is not made within three weeks, I would sentence the defendant to a term of imprisonment of two years with a non-parole period of 15 months, but would decline to suspend the sentence. VANSTONE J: The appellant pleaded guilty in the District Court to one count of deception, contrary to s 139(b) of the Criminal Law Consolidation Act 1935. It was alleged that he deceived the victim by falsely telling her that he would invest the sum of $100,000 on her behalf and, by so doing, dishonestly caused her to suffer a detriment to the extent of $90,000. The maximum penalty for the offence is imprisonment for ten years. At the time of sentence, the appellant was 40 years of age and had no prior convictions. He was sentenced to imprisonment for three years and one month with a non-parole period of two years. The judge indicated that, but for the plea of guilty, the head sentence would have been three years and six months. He appeals against the sentence arguing that the factual basis upon which he was sentenced was incorrect in two particulars and that this led to a higher sentence than the true facts warranted.Background It is common ground that the victim and the appellant met through the course of their work at a parking station in Hindley Street, Adelaide. The victim was employed there as a cashier. In July 2003 the appellant commenced employment as some sort of security officer, his duties being to walk about the parking station checking the security of parked vehicles. Over the ensuing months the appellant and victim had several conversations about investments. He led her to believe that he was a financial adviser and was astute in relation to investing funds. At about this time the victim sold a property in Sydney and was in receipt of a substantial amount of money from the proceeds. She told him she had money to invest. The appellant suggested that she could invest some of the money with him and would be guaranteed a return of 10 per cent per annum. He made representations to her to the effect that he was a man of means himself and would use his own assets to repay her should anything go wrong. In September 2003 the victim gave the appellant $100,000. They signed a loan agreement and he gave her a document headed “Deed of Assignment”, purportedly to protect her. During the following month, at the victim’s request, the appellant repaid $10,000. Soon after this the appellant left his employment, telling the victim that he was going to work as a financial adviser and giving her a business card associating him with an entity called “Professional Choice Financial Services”.

Ratio Decidendi

Legal Principle Established

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