R v Gorcilov - [2005] SASC 326

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GORCILOV
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
18 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - Appellant pleaded guilty to two counts of attempted false pretences and four counts of false pretences contrary to s 195(1)(a) and s 270A Criminal Law (Consolidation) Act 1935 (SA) - Appellant sentenced to five years imprisonment with a non-parole period of three years - Offences occurred whilst appellant was on bail for prior offending - Appellant was sentenced for these offences after serving imprisonment for prior offending - Appeal on the ground that sentence imposed was manifestly excessive - Totality principle not suggested - Previous offending and sentence separate and distinct from present offending - Appellant sought to tender further evidence to demonstrate effect of custodial sentence on appellant's wife and five dependent children - Whether inadequate weight given to impact of custodial sentence on appellant's family - Consideration of admitting further evidence on appeal - Consideration of whether further evidence would shed new light on family situation - Whether inadequate weight given to appellant's prospects of rehabilitation - No error shown - Appeal dismissed.
Criminal Law (Consolidation) Act 1935 (SA) s 195(1)(a) and s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n) and s 18A, referred to.
R v Adami (1989) 51 SASR 299, applied.
R v Major (1998) 70 SASR 488; Gorcilov v Police [2002] SASC 45; R v Smith (1987) 44 SASR 587; R v Bfain (1999) 74 SASR 92; R v C [2004] SASC 244, considered.

R v GORCILOV
[2005] SASC 326
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I would dismiss the appeal and I agree with the reasons given by Bleby J.
BLEBY J: This is an appeal against sentence imposed by a Judge of the District Court on 31 March 2005. The appellant pleaded guilty to two counts of attempted false pretences contrary to s 195(1)(a) and s 270A of the Criminal Law Consolidation Act and to four counts of false pretences contrary to s 195(1)(a) of the Criminal Law Consolidation Act.
All of these counts were representative of a course of conduct involved in six related transactions occurring between November 1999 and June 2000. They were included in sixteen counts, the remainder of which did not proceed upon the appellant pleading guilty to these six counts.
The appellant and his father were involved in transactions with various financial institutions to obtain, by false pretences, substantial loans to finance the purchase of certain assets.
The appellant had been declared bankrupt in 1991 and was discharged in 1994. He was declared bankrupt again on 1 September 1997 and remains undischarged. The appellant’s father was declared bankrupt on 30 October 1998 and remains undischarged. As undischarged bankrupts, they were both prohibited from obtaining credit of $3,000 or more, from carrying on a business under another name without disclosing the fact of the bankruptcy and from being a director, promoter or manager of a corporation. No relevant disclosures were made of these facts in any of the transactions, the subject of these charges.
The appellant and his father caused all applications for finance to be made in the name of Peter Tomaras. Peter Tomaras was a relative, by marriage, of the appellant but was not involved in any way in the offending. In all the transactions the appellant represented his father to be Peter Tomaras, and his father represented himself as Peter Tomaras. In each case the appellant represented himself to be someone else.
It is convenient to refer to the counts to which pleas were entered by reference to their numbers on the information. Counts 1 and 9 were charges of attempted false pretences. The others were all charges of false pretences.
Count 1 related to an attempt by the appellant, between 1 December 1999 and 12 April 2000, to cause the ANZ Bank to deliver a cheque in the amount of $5.5 million. A loan was sought to purchase the Barron Townhouse Motel. Various acts of deception took place in negotiations for the purchase of the motel and its financing. To the owners and operators of the motel, the appellant represented himself as John Sharpe. Various negotiations and acts of deception resulted in an agreement to purchase the shares in the business of the motel by a company of which Peter Tomaras purported to be a director, an agreement to purchase the shares in the company which owned the freehold by another company of which Peter Tomaras purported to be the sole director and a finance agreement with the vendor in relation to the purchase of the shares. A deposit was paid out of the proceeds of the transaction referred to in count 11.
The false pretences the subject of count 1 involved the appellant falsely representing to the ANZ Bank that he was George Tomaras, the son of Peter Tomaras, that he and Peter Tomaras were involved in the management of the motel, that Peter Tomaras had a beneficial interest in the motel and had recently sold a substantial cigarette vending machine business. Other misrepresentations included an assertion that Peter Tomaras’ assets included equity in a shopping centre at Windsor Gardens. That, and other false information given to the bank, resulted in the offer of a loan and the preparation and execution of documents in the name of Peter Tomaras by the appellant’s father. Settlement on the transaction was cancelled when the bank became aware that the appellant and his father were not who they said they were.
Count 4 related to the sale and purchase of the appellant’s home situated at Martin Court, West Lakes. The appellant, posing as John Tomaras, and purporting to act on his father’s behalf, sought to obtain finance from the National Australia Bank in order to purchase the house. The bank approved the finance application on the basis of false tax returns indicating that Peter Tomaras owned a substantial business, and on the basis of a false contract for the purchase of the house which was in fact already owned by the appellant and his wife and was subject to a mortgage to the State Bank of New South Wales. The National Australia Bank at “settlement” produced cheques in favour of the State Bank of New South Wales, the Registrar-General and the balance figure payable to Peter Tomaras. The bank ultimately suffered no loss as a result of this set of false pretences.
Count 9 related to the appellant’s attempt to obtain finance from the National Australia Bank for the purchase of the Bunnings Warehouse property at Windsor Gardens. The appellant, posing at John Tomaras, signed a contract for a company to purchase the property for $2.3 million. The appellant, purporting again to act on behalf of his father, sought funding from the National Australia Bank, representing that his father was selling part of the business that had been mentioned in relation to the West Lakes property transaction. He used the same false tax returns and sent the bank a number of false documents to establish that part of the business had in fact been sold. The appellant’s father, posing as Peter Tomaras, signed a number of security documents to facilitate the loan arrangements. The bank cancelled the loan facility before settlement when it became aware that the appellant had become involved in the finance application by Peter Tomaras.
Counts 10 and 11 involved the purchase and refinancing of a boat. The appellant, pretending to be John Tomaras, became involved in negotiations with an agent for the purchase of a large power boat for the sum of $195,000. He signed a contract in the name of John Tomaras as agent for a Hong Kong company, which he said belonged to him. The price was reduced on the provision by the appellant of a false sales tax exemption number. In the meantime a business “Australian Boat and Marine” was registered with the Office of Consumer and Business Affairs purportedly owned by a company which did not file the document. The business did not exist. The appellant, using the name John Tomaras, applied for finance from St George Bank on behalf of Peter Tomaras in order to purchase the boat. The loan application stated a substantially higher contract price than the actual contract price and indicated that a substantial deposit had been paid. In due course the appellant provided an invoice to St George Bank purporting to be issued by Australian Boat and Marine addressed to Peter Tomaras. Similar false information was submitted to St George Bank about the financial affairs of Peter Tomaras as had been done in other cases. Security documents were prepared, signed and returned to the bank and a cheque was provided. The bank subsequently learned that John Tomaras was in fact the appellant, and demanded that the boat be sold or refinanced.
The appellant returned to the ANZ Bank and was referred to Esanda Finance Limited. This request was in the name of Barron Townhouse Pty Ltd, with false information being provided in the loan application. The loan application was approved with the appellant posing this time as George Tomaras. There were further moves by the appellant to patch up inconsistencies revealed in the directorship of Barron Townhouse Pty Ltd. The finance was approved and St George Bank was paid out, the balance of the loan being paid to Australian Boat and Marine, portion of which was then used to pay the deposit on the transaction referred to in count 1. Esanda became aware of the issue of the identity of Peter Tomaras and seized the boat. Esanda is still owed $111,576.52 in relation to that transaction.
Count 12 related to the appellant’s second attempt to obtain finance in respect of the property at Windsor Gardens. After the National Australia Bank withdrew its loan approval, the appellant, posing as John Tomaras, and through a finance broker, sought a loan from the Commonwealth Bank of Australia for $1.9 million, the application again being made on behalf of Peter Tomaras as the intended sole director of a company which it was said would own the Windsor Gardens property. The bank was provided with the same false documents that had previously been used in other transactions, and the loan was approved. Identification of Peter Tomaras was provided by a credit card, Telstra account and Medicare card. Settlement took place on the loan, but the bank eventually recovered the full amount and ultimately suffered no loss.
The maximum penalty for the offence of false pretences is imprisonment for 4 years and for attempted false pretences imprisonment for 32 months. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing Judge imposed a single sentence in respect of the six counts to which the appellant pleaded guilty. The Judge fixed a notional head sentence of seven years imprisonment which he then reduced to five years, taking into account the appellant’s pleas of guilty, the fact that the appellant had been on home detention bail since November 2003 and the impact on the appellant’s family if he was imprisoned. The Judge set a non-parole period of three years, the head sentence and non-parole period commencing on 31 March 2005. The appellant appeals against this sentence on the ground that it is manifestly excessive.
The offences to which this appeal relates occurred while the appellant was on bail for four offences of false pretences committed by him in 1997 and 1998. The appellant was sentenced for those offences in December 2001. Those offences also constituted a breach of bond for some earlier offending which is mentioned below. After appeal, resolved in February 2002, the sentence for those offences was three years imprisonment with a non‑parole period of 20 months. While he was in custody he was sentenced under Commonwealth law for imposition on the Commonwealth by falsely representing that the purchase of the boat, the subject of count 10, would be free of sales tax on the basis that the boat was to be exported from Australia. The amount of sales tax avoided was $29,873.05. For that he was imprisoned for one year and 9 months with an order for release on a good behaviour bond after serving one year of the sentence. That was concurrent with the sentence he was then serving, and had the effect of extending the period of actual imprisonment by about one month. He was released on home detention on 20 January 2003, completing the non‑parole period on 20 November 2003, following which he was on parole.
The appellant was committed for trial on the current offences while he was serving his prison sentence for the 1997/98 offending and the sales tax offence.
The appellant also had convictions in 1996 of three counts of false pretences for which he received a suspended sentence. He had further convictions in 1996 of practising law without being enrolled. He had two further convictions in 1998 of opening an account with a cash dealer in a false name, and one of passing a valueless cheque, the latter constituting a breach of bond for the 1996 offences. There was a further conviction of false pretences in 2002 for an offence which occurred in 1995, for which he received a suspended sentence.
In the 1990’s the appellant, with his parents and sister, became involved in the purchase of a retirement home at Glenelg. The business foundered. The appellant encouraged members of his family to join him in the purchase of a nursing home instead. It was in giving false figures and information to financial institutions to raise money for that purpose that the earlier offending of false pretences in 1997/98 came about. It appears that the current offending occurred at a time when the appellant believed that both his and his parents’ houses were in jeopardy over the debt problems which he had created, and that both houses were at risk of being sold. It was said that the current offending was a scheme in order to make money to resolve those problems. It was a complex, extensive and systematic scheme, calculated to make money by deceiving others on a substantial scale.
The appellant, who is 40 years of age, was born in Adelaide to parents who were immigrants from Macedonia. The appellant has been married to his wife for seven years and they have five children together. The eldest child is aged eight years. The two youngest children are twins. All the information before the Court suggests that he is a devoted father to his children and has been an enormous help to his wife in childcare and assisting her profession.
The appellant’s wife is a qualified pharmacist and she runs her own pharmacy business. While the appellant was in prison she became the sole carer for the children. It was said that her situation was such that the appellant’s wife and family were unable to visit him during the time that he was in prison. However the psychologist’s report before the sentencing Judge suggests that that was because the fact that he was in prison was concealed from the children.
It is not surprising that the previous term of imprisonment put a great strain on the family and in particular on the appellant’s wife. The financial burdens were not relieved by the appellant being in prison. A second mortgage was granted over the appellant and his wife’s home in order to meet family debts.
The appellant’s parents are elderly and their health is poor. The appellant’s father is seriously ill, having been diagnosed with cancer and suffering from dementia. The appellant’s mother is also very frail and devotes her time to caring for her husband. Both parents are pensioners and there exists a large mortgage over their house. The appellant has one sibling and she suffers from a psychiatric illness, attributable to her family’s financial problems and her brother’s criminal activities. The appellant had taken upon himself the responsibility to repay his parents’ heavy mortgage commitments. Much of their accumulated wealth was lost on business ventures in which the appellant played a significant role.
The appellant argues that the sentencing Judge gave incorrect weight to the appellant’s antecedents by failing to recognise that this offending occurred before the appellant was sentenced for the previous round of offences for false pretences, those offences being “loosely related” to a series of offending between 1995 and 2000. It was not suggested that the principle of totality involving the process referred to in R v Major[1] was relevant to the sentence for these current offences which was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. While the appellant did not go as far as to suggest that the principle of totality should apply to the penalty for this and the previous unlawful pretences offending, it was submitted that the previous offending was a relevant factor to take into account in determining whether the ultimate sentencing package was appropriate.
[1] (1998) 70 SASR 488
The past offending was relevant, as was the fact that these offences were committed while the appellant was on bail for those offences. The sentencing Judge properly took into account the sentence for the Commonwealth offence for avoiding sales tax which was linked with counts 10 and 11. The Judge was under no misapprehension as to the periods that the appellant had been in custody and the offences for which he was serving the relevant sentences. The 1997/98 offending in relation to the intended purchase of a nursing home was a distinct episode, remote in time from and having no transactional connection with the current offending. It was required to be treated separately. The fact that sentencing for this earlier offending did not take place until the end of 2001 did not attract any relevant notion of totality to the penalty for this offending in early 2000 for which a penalty was imposed in 2005. The appellant was properly sentenced as a person who appeared to have learned no lessons from a range of previous similar offending, a fact which tended to undermine his protestations of remorse for this series of offending.
There was nothing to suggest that the appellant had good prospects of rehabilitation. He served his parole without incident, as was to be expected, and he did not breach the bail conditions which immediately followed. That is not surprising. The trial Judge properly discounted the psychologist’s opinion to the effect that he had good prospects of rehabilitation on the ground that she had sketchy information about his prior offending and about the offending with which he was to be sentenced, he having described his behaviour to the psychologist as a way of getting out of trouble without realising the consequences. The Judge properly regarded her opinion that the appellant was unlikely to offend again as carrying little weight, the main thrust of the psychologist’s opinion being on the effect of incarceration on the appellant’s wife and family.
Significant stress on this latter factor was given in the appellant’s submissions. There can be no doubt that the family and the appellant’s relationships with the family will be under significant strain as a result of the appellant’s incarceration. That was taken into account by the sentencing Judge.
It is true that s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 requires the Court to have regard to the probable effect any sentence under consideration would have on dependents of the appellant. As Bollen J said in R v Adami[2] with the concurrence of King CJ:
It has always been the law that the effect of a sentence of imprisonment on dependants is not normally to be taken into account in fixing the sentence. There is no doubt, of course, that the incarceration of almost anybody causes adverse effect, often financial, on dependants. Certainly it does for every married man, every father, who is sent to prison. If that were to be taken into account in the normal run of things there would be no complaints of overcrowding in our prisons. The Court may take effect on dependants into account to ameliorate a penalty in exceptional cases. For all these propositions I refer to R v Wirth (1975) 14 SASR 291, R v Moffa (No 2) (1977) 16 SASR 155 and R v Amuso (1987) 138 LSJS 53.
[2] (1989) 51 SASR 229 at 232-233

The Court declined to hold that the enactment of s 10(1)(n) of the Criminal Law (Sentencing) Act had changed the approach that courts should take to that factor.
The economic hardship inflicted on this family has been largely brought about by the appellant’s lust for money and his own premeditated breaches of the criminal law. The hardships, while recognised by the trial Judge, were not so exceptional as to require any greater reduction than the Judge made of the head sentence and non‑parole period that he fixed.
The submission on the effect of the appellant’s incarceration on his family mirrored a submission put to the Chief Justice by the appellant on the appeal against sentence for the 1997/98 series of false pretences[3], where the Chief Justice said:[4]
[33]The situation of the appellant’s wife and children is difficult. Mrs Gorcilov and her husband will soon have five children under six years of age. This is a heavy burden. Further affidavit material, which I agreed to receive, indicates that there is little prospect of significant help from the extended family, for all sorts of reasons. I also accept that the children were upset when their father was in custody earlier and they will be again. The pressure of circumstances has led Mrs Gorcilov to leave the appellant with three of the children and to return to her parents pending the birth of the twins. Mr Gorcilov has become, for the time at least, the sole carer for the older three children. I accept that it is now not clear what will happen to them if the appellant is imprisoned.
[34]This is distressing and unfortunate and I will allow for it in the sentence. But Mr Gorcilov and other offenders must understand that just as victims suffer from their crimes, so will their families. The suffering of families may be taken into account when it is noticeably out of ordinary, as it is here. But it cannot be allowed to overwhelm other relevant factors.
[35]By breaching his bond the appellant has shown that he is slow to acknowledge the benefit of being treated mercifully and was not deterred from offending by the fact that he faced a suspended sentence. Consideration for his family must also be limited by the seriousness and magnitude of the offence, as well as by the need for deterrence. Mr Gorcilov’s breach of the bond shows that there is a real need for deterrence.
[3] Gorcilov v Police [2002] SASC 45
[4] Ibid at [33]-[35]
If anything, the situation was more complicated for the family on that occasion with the impending birth of the twins. The appellant has now exhausted any mercy that the Court might otherwise extend to him, and the need for personal deterrence is now even greater.
We agreed to receive, on the hearing of the appeal, further material being an additional report of the psychologist, a letter from the appellant’s wife’s obstetrician and gynaecologist and a letter from a paediatric medical registrar who is also the brother of the appellant’s wife. These letters had all been generated after the date of sentencing and purported to report on the effects of the appellant’s incarceration on his wife and children. Such material, in relation to events occurring after sentence, will only be relevant on an appeal against sentence if it sheds new light on material that was before the Judge at the time of sentencing.[5] Having read the material tendered, I do not consider that it throws any new light on what would reasonably be expected to be the effect on the family of the appellant’s imprisonment other than to confirm the ongoing pretence to his children that the appellant is a man of impeccable character.
[5] R v Smith (1987) 44 SASR 587 at 588; R v Brain (1999) 74 SASR 92 at 104; R v C [2004] SASC 244
No error of principle in the approach of the sentencing Judge has been identified. The sentencing Judge took all relevant factors into account. The sentence was entirely appropriate. In my opinion, the appeal should be dismissed.
GRAY J: I agree.