R v Denysenko - [1998] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 273 of 1997

THE QUEEN
v
BOHDAN ANGELO DENYSENKO

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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

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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.

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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.

After a plea in mitigation the applicant was sentenced on 8 December last year as follows: on count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Denysenko

Details

AGLC: R v Denysenko [1998] VSCA 55
Case: [1998] VSCA 55
Decision Date: 21 September 1998

CaseChat Overview and Summary

The appellant, Denysenko, was convicted of multiple counts of obtaining financial advantage by deception. The case was heard and determined by the Court of Appeal in Victoria. Denysenko appealed against his sentence, arguing that the cumulative effect of the sentences imposed for the individual offences was unjust and manifestly excessive. The primary legal issues for the court to decide were whether the cumulative sentences were justified, and if not, whether they constituted a manifestly excessive punishment.

The court examined the principles of sentencing for cumulative offences, emphasising the need to avoid disproportionate punishment. The court noted that the cumulative sentences should reflect the totality of the offending rather than the sum of individual sentences. In assessing the proportionality of the sentence, the court considered the nature and circumstances of the offences, the appellant’s criminal history, and the principles of deterrence and rehabilitation. The court held that while the appellant's actions were serious and warranted punishment, the cumulative sentences did not adequately reflect the totality of the offending and were excessive in their overall effect.

Given the findings, the court allowed the appeal and remitted the matter to the sentencing court for reconsideration of the appropriate cumulative sentence. The court stressed that the new sentence must appropriately reflect the totality of the offending and not be manifestly excessive. This ensures that the punishment is proportionate to the crime committed, taking into account the overarching objectives of sentencing under the Crimes Act 1958.

Orders