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…

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 Gorcilov

Details

AGLC: R v Gorcilov [2005] SASC 326
Case: [2005] SASC 326
Decision Date: 18 August 2005

CaseChat Overview and Summary

The appellant in R v Gorcilov was convicted of two counts of attempted false pretences and four counts of false pretences. The appellant pleaded guilty to these offences and was sentenced to five years imprisonment with a non-parole period of three years. The appellant appealed against the sentence, arguing it was manifestly excessive. The appeal hinged on whether the sentencing court had given inadequate weight to the impact of the custodial sentence on the appellant's family and his prospects for rehabilitation.

The court had to decide whether the sentence imposed was manifestly excessive, despite the appellant's previous offending and the fact that he was on bail at the time of the offences. The appellant argued that the sentence did not take into account the impact of the custodial sentence on his wife and five dependent children. The court also needed to consider whether the appellant's prospects for rehabilitation were adequately weighed by the sentencing court.

The court found that the appellant had not demonstrated any error on the part of the sentencing court. The court concluded that the sentence was not manifestly excessive, and that the sentencing judge had adequately considered the impact on the appellant's family and his prospects for rehabilitation. The court rejected the appellant's contention that further evidence should be admitted on appeal to demonstrate the effect of the custodial sentence on his family. The court held that such evidence would not shed new light on the family situation. The appeal was dismissed.

Orders