R v Denysenko
[1998] VSCA 55
•21 September 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 273 of 1997
THE QUEEN
v
BOHDAN ANGELO DENYSENKO
---
JUDGES: TADGELL, CHARLES and CALLAWAY, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 21 September 1998 DATE OF JUDGMENT: 21 September 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 55
---
CRIMINAL LAW - Sentencing - Obtaining property by deception - Obtaining financial
advantage by deception - Whether cumulation of sentences justified - Whether
manifestly excessive.Crimes Act 1958, ss.81, 82.
---
APPEARANCES: Counsel Solicitors For the Crown Mr G.R. Flatman, Q.C. P.C. Wood, Solicitor for (DPP) Public Prosecutions For the Applicant Mr O.P. Holdenson and Office of David Grace, Q.C. Mr M. Croucher
TADGELL, J.A.:
This is an application for leave to appeal against sentence. In mid-1993 a task- force of police from Victoria, New South Wales and Queensland was established to investigate what appeared to be an organised gang engaged in defrauding finance companies. As a result the applicant, Bohdan Angelo Denysenko, was charged with eleven offences of dishonesty alleged to have been committed from September 1987 to December 1993. On 6 June 1994 he was committed for trial. By virtue of a range of remarkable circumstances, including a number of interlocutory proceedings which produced, among other things, an appeal to this Court in February last year, no trial was had until November of last year. Some of the circumstances will be found related in the reported decision on the appeal: Director of Public Prosecutions v. Denysenko [1998] 1 V.R. 312. I need not elaborate upon them.
In the event, five counts were hived off from the eleven and became the subject of a trial in the County Court which lasted from 20 until 28 November of last year. These were counts 3, 4, 5, 6 and 7, to all of which the applicant pleaded not guilty. The jury returned a verdict of not guilty upon count 3, which alleged theft, and a verdict of guilty upon each of the others.
Count 4 alleged that the applicant by deception on 29 October 1992 dishonestly obtained from Telstra Pty Ltd a mobile telephone with the intention of permanently depriving the victim of it. Count 5 alleged that the applicant attempted to obtain for himself a financial advantage by deception, namely a hire purchase facility, from Toyota Finance Australia Limited for the purchase of a motor vehicle. Counts 6 and 7 alleged respectively that the applicant by deception dishonestly obtained from Ken Morgan Toyota a cheque and motor vehicle with the intention of permanently depriving the victim of them. Counts 4, 6 and 7 alleged offences contrary to s.81 of the Crimes Act 1958 and count 5, the attempt, alleged an offence contrary to s.82 of that Act. The maximum penalty for each of the substantive offences of which the applicant was convicted was imprisonment for ten years and for the attempt five years.
1.
After a plea in mitigation the applicant was sentenced on 8 December last year as follows: on count 4 (obtaining the mobile telephone by deception) - nine months' imprisonment; on count 5 (attempting to obtain the hire purchase facility by deception) - 12 months' imprisonment; on count 6 (obtaining the cheque by deception) - 12 months' imprisonment; on count 7 (obtaining the motor vehicle by deception) - two years' imprisonment. The learned judge directed that three months of the sentence on each of counts 4, 5 and 6 be served cumulatively upon each other and on the sentence on count 7. The total effective sentence was therefore one of imprisonment for two years and nine months and a non-parole period was fixed of two years. There was a declaration of 115 days' pre-sentence detention.
The applicant gave notices seeking leave to appeal against conviction and against sentence but the former application was abandoned by notice dated 24 March this year. The grounds of the subsisting application are two in number, namely -
1. That the total effective sentence and the non-parole period are manifestly excessive in all the circumstances of the offences and the applicant resulting in a substantial miscarriage of justice.
2. His Honour erred in law in ordering that there be partial cumulation in respect of counts 5, 6 and 7, resulting in a substantial miscarriage of justice.
The Crown case was that the applicant imposed on his victims by, among other things, assuming a false identity. There was evidence that he was in the habit of using a range of pseudonyms, including Domenic Pizzuto, Robert Timms, Grant Spencer, Barry John Stevens, Barry Stevens and John Stevens. Plainly he did this with careful forethought and by way of elaborate sophistication. In a sentence, he was evidently proved to the jury's satisfaction to be an able confidence trickster.
| 7 | To perpetrate the offence the subject of count 4, the applicant went on 28 October 1992 to a Telecom service centre in City Road, South Melbourne. He gave |
2.
his name as Robert Timms when applying for a mobile telephone service and said that he was requesting the instrument for a John Stevens of 14 York Street, South Melbourne. All of that information was false. The mobile telephone was delivered to him the following day, 29 October, the transaction thus being concluded.
The offences charged as counts 5, 6 and 7 occurred early in 1993. The applicant began making enquiries in January of that year to staff at Ken Morgan Toyota at Nunawading about the availability for purchase of a turbo diesel Toyota Landcruiser motor vehicle. On 3 February, after he had had a series of communications with staff of the Ken Morgan organisation, he attended at that company's premises for the completion of documents for his acquisition of such a vehicle and delivery of it to him. He gave his name as Grant Spencer and provided details for entry into the documents being prepared, one piece of information purporting to advise that an application for finance had been made by him in the name of Grant Spencer to Toyota Finance Australia Ltd. In the event, that application for finance was not accepted by the finance company. A vehicle of the kind ordered was delivered to the applicant by Ken Morgan Toyota on 3 February. At the same time there was handed to him a cheque for $4,744. This was described as being part of a so-called cash-back arrangement between the supplier and the purchaser. We were told this morning that a cash-back arrangement of that kind is not uncommon in the motor vehicle dealers' industry, being in effect a bonus equivalent to the amount of the first and second monthly lease payments, which were the responsibility of the ultimate purchaser but which were paid in effect on the purchaser's behalf by the dealer subsequent to the granting of finance. So it was that on 3 February 1993 the applicant actually took possession of a motor vehicle, the retail value of which was not much short of $72,000, and a cheque made payable to one of his aliases for $4,744.
| 9 | It would be possible to enlarge upon the details of the deceit and the scheme which produced it, but to do so would risk paying it undue and unnecessary respect. I content myself with an adaptation of the learned judge's sentencing remarks. |
3.
Within a few days of obtaining the vehicle on 3 February, the applicant took it to Queensland where, according to the evidence, he disposed of it for cash. He also used the cheque to the extent of endorsing it to one of his creditors to pay a comparatively modest sum, and with instructions to the endorsee to remit the balance of the value of the cheque to him after the debt had been taken out of the proceeds.
The learned judge, naturally enough, regarded count 7 as the most serious of the four of which the applicant was convicted. The subject of it was a valuable four- wheel drive vehicle. The scheme by which the applicant obtained the vehicle and disposed of it was part of an elaborate swindle, for which the applicant has shown no particle of remorse. The sentence of two years' imprisonment for the offence was, in my opinion, entirely appropriate. Indeed, as I understand it, no complaint was made about that sentence individually on behalf of the applicant this morning. Motor vehicles are, of course, valuable and, by their nature, easily moved and disposed of by fraudulent means. Honest dealers need the protection of the law against dishonest schemes of the kind in which the applicant engaged. The offence charged by count 7 was correctly treated by the learned judge as a serious crime of dishonesty, the penalty for which required an appropriate application of the principles of both specific and general deterrence.
The bulk of the argument addressed to us this morning was concerned to submit that the cumulation which the judge ordered in respect of counts 5 and 6 was misplaced. It was submitted that each of the acts upon which counts 5, 6 and 7 were based was part of essentially a single transaction, multi-faceted, as it was said, though it was. Essentially it was submitted that each of the acts of attempting to obtain the finance facility, of obtaining the cheque and of obtaining the motor vehicle were to be regarded as deriving from a single course of conduct, and it was said that in the circumstances it was only appropriate that the sentences imposed on each of counts 5, 6 and 7 should be totally concurrent. We were referred to R. v. Mantini (1997) 95 A.Crim.R. 33 and to some of the authorities referred to in the judgments in
4.
that decision. In particular, it was urged that clearly, looking at counts 5, 6 and 7, the whole object of the integrated transaction was to obtain the motor vehicle. Anything else was by the way, and any other advantage, attempted or actually obtained, was in a sense adventitious. In particular it was said that because the cheque for $4,744 by way of an enticement to obtain the motor vehicle was so bound up with it, there would not have been any justification for treating it as the subject of an offence which merited anything but a wholly concurrent sentence.
I am not able to accept that argument. It seems to me that, whether or not the whole object of the exercise was to obtain the vehicle, the fact was that the applicant obtained the vehicle the retail value of which was some $72,000, and he actually obtained in addition to it, so that he might use it separately from the motor vehicle, the cheque. I think that the judge was well entitled, within the concepts discussed in such cases as Mantini, to treat the obtaining of the cheque as disclosing an offence which merited some order of cumulation of sentence. I think the same in respect of the attempt to obtain the finance facility. That was a discrete crime, at least in the sense that it was prior in time to the crimes of obtaining the cheque and the motor vehicle, and of course it was committed against a different victim from the victims of counts 6 and 7. Again I think a measure of cumulation was not unjustified. No complaint was made of cumulation in respect of the sentence imposed on count 4. That was a discrete offence. What was said about that, under the heading of ground 1, was that the sentence was manifestly excessive, as were the individual sentences, so it was submitted, in respect of counts 5 and 6.
In deciding whether to accede to those submissions one needs, I think, to take account of the various matters that were personal to the applicant as well as to the baldly stated circumstances of the individual offences. The applicant was born in Milan, Italy, on 11 April 1950 and was at the time of the offences of which he was convicted aged 42. He is now aged 48. He has a criminal history which is not without considerable significance to the sentencing process. He admitted 31 previous convictions from 11 court appearances between May 1969 and March 1990.
5.
A number of these were offences involving motor cars, including one for culpable driving, but there were in particular three charges of stating a false name and address, one of larceny and 11 of obtaining property by false pretences, one of theft and two of obtaining property by deception. The applicant appears to have made a career of deceitful conduct and the task which was imposed upon the learned sentencing judge required that to be taken seriously into account.
It was said that to sentence this man to nine months' imprisonment for obtaining a mere mobile telephone (that is my word, not Mr Holdenson's) was manifestly excessive. It was an instrument the retail value of which apparently was about $2,600. Notwithstanding Mr Holdenson's submission that that should not be regarded as the value of the loss to the victim, I have difficulty in seeing that it was not an appropriate measure of loss. Presumably the victim had to acquire the instrument for a price, or value, and the victim further failed to obtain any profit upon its disposal to the applicant.
One cannot help thinking that conduct of this kind, having regard to the background of the applicant, was very much in keeping with his criminal history. The judge might have imposed a lesser sentence than nine months in respect of count 4, but an effective sentence of three months is not, in my opinion, by any means manifestly excessive. I would not interfere with the sentence of nine months as the head sentence having regard to the degree of cumulation which was ordered.
So it was said that the sentence of 12 months for obtaining a cheque worth $4,744 was also manifestly excessive. Again, it might have been possible, no doubt it was possible, to arrange the sentence in such a way that the head sentence of 12 months was less whilst producing much the same overall result. I feel unable to conclude that this sentence or any of the other sentences was manifestly excessive, showing error of the kind with which this Court ought to interfere.
In my opinion the application as argued must fail, and I am for dismissing it.
CHARLES, J.A.:
6.
I agree.
CALLAWAY, J.A.:
Although s.16(1) of the Sentencing Act 1991 provided for a prima facie rule of concurrency in relation to the offences of which the applicant was convicted, all that that entailed was that there had to be good reason to direct a measure of cumulation. Very great flexibility is to be accorded to a sentencing judge in deciding how to fashion a just and appropriate total effective sentence. I am not persuaded that the learned judge in the present case fell into error in that regard or that his Honour misapplied the principles explained in R. v. Mantini, especially at pp.41 and following, and the authorities to which reference is there made. I do not take into account the extent of the cumulation directed in considering Mr Holdenson's submissions that the sentences imposed on counts 4 and 6 were themselves manifestly excessive, but, in the circumstances described by the learned presiding judge, I do not accept that that was so.
Counsel did not seek to argue that Pearce v. The Queen [1998] HCA 57 applied to counts 6 and 7. Accordingly this application is not an appropriate vehicle to consider the best way in which to give practical effect to that decision. When that occasion arises, attention may have to be given to the problem identified in Ryan v. The Queen (1982) 149 C.L.R.1.
It should not be inferred that a submission focusing on the common element in counts 6 and 7 would necessarily have succeeded, or even that it would have been likely to do so. It will be recalled that the learned judge imposed a sentence of 12 months' imprisonment on each of counts 5 (attempting to obtain a financial advantage by deception) and 6 (obtaining property, that is to say the cheque, by deception) and that his Honour imposed a sentence of two years' imprisonment on count 7 (obtaining property, that is to say the motor vehicle, by the same deception as that in count 6). It may very well be that the applicant was punished only once for the common element in the sentence imposed on count 7. As with directions for
7.
cumulation and concurrency, so with the sentencing error identified by the High Court in Pearce's Case, it may be assumed that the widest flexibility is to be accorded to a sentencing judge. Another consideration that may have deflected counsel from advancing a common element argument is the possibility of a Pyrrhic victory. In that regard it is sufficient to refer to the third sentence of para.49 in the joint judgment of McHugh, Hayne and Callinan, JJ., which may indeed afford further support for the approach to cumulation that was adopted in this case.
For these reasons I, too, would dismiss the application.
TADGELL, J.A.:
The judgment of the Court is -
Application dismissed.
8.
0