R v Milosevski

[2000] VSCA 136

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 328 of 1999

THE QUEEN

v

TRAJAN MILOSEVSKI

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JUDGES:	ORMISTON, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2000
DATE OF JUDGMENT:	26 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 136

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Criminal law – Sentence – Offences against Commonwealth – Release on recognisance – Date of release too close to expiration of sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B.M. Young	Solicitor to Cth. DPP
For the Appellant	Mr A. Shwartz	Victoria Legal Aid

ORMISTON, J.A.: 

1. I will ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.: 

1. On 13 August 1995 the appellant was sentenced in the County Court to a term of two-and-a-half years' imprisonment on a charge of defrauding the Commonwealth, and it was ordered that he be released on a recognisance after serving 12 months' imprisonment.

1. On 15 December 1999 the appellant was sentenced by the same judge after pleading guilty to a charge of attempting to defraud the Commonwealth by avoiding the payment of customs duty on imported alcohol and to a charge of defrauding the Commonwealth of sales tax payable on alcohol sold to retail outlets.

1. The sentencing judge cancelled the recognisance release order he had made in August and imposed a sentence of 15 months' imprisonment to commence on 28 January 2000 in respect of the charge of attempting to defraud the Commonwealth and a sentence of three years' imprisonment to commence six months prior to the expiration of the earlier sentence on the charge of defrauding the Commonwealth of sales tax.  The effect of that was to impose sentences of imprisonment which, together with the sentence imposed in August, amounted to an overall sentence of four years, two months and 15 days.

1. The sentencing judge then made a new recognisance release order to operate with respect to all three sentences.  His Honour ordered that the appellant be released on recognisance at the expiration of three years and six months from 15 December 1999.

1. Thus, as matters then stood, the sentence would expire on 28 October 2003, and the date on which the appellant was to be released on recognisance was 15 June 2003, only about four months earlier.

1. The respondent concedes that the sentencing judge erred in fixing a minimum term which was too close to the end of the overall sentence.  Accordingly the respondent, while maintaining that the overall sentence is appropriate having regard to the circumstances of the offences and factors personal to the appellant, acknowledges that an earlier date for the appellant's release should be set.

1. The offences arose from the importation into Australia of alcohol from eastern Europe.  The offence of attempting to defraud the Commonwealth was constituted by the presentation to Customs of documents which misdescribed the contents of two containers of wine and spirits by inflating the proportion of wine and reducing the proportion of spirits.  That misdescription would have had the effect, if accepted, of a shortfall of duty of some $220,734 because spirits are subject to a higher rate of excise than wine.  The charge of defrauding the Commonwealth was constituted by sales of alcohol to retailers without the collection and payment to the Commonwealth of the sales tax payable in respect of those transactions.  The obligation to pay over $1m. in sales tax was thereby evaded.

1. The appellant was sentenced on the basis that he was the instigator and principal organiser of the frauds.

1. The appellant is 51 years of age.  He has no prior convictions.  He is apparently destitute, despite the large sums in which he dealt as an importer.  An explanation offered in a record of interview was that the appellant wasted his substance in gambling.  Another explanation offered in the course of the plea before the sentencing judge was that the appellant's impecuniosity was the married with two children, one of whom is handicapped and dependent.  He migrated to Australia at the age of 24 years, and until he became involved in the importation of wines and spirits had a good working record and was a man of good reputation.  He served as a president of the Macedonian Australia Community and was involved in work with the Macedonian Church. 

1. In my opinion the sentences imposed upon the appellant were appropriate having regard to the crimes themselves and to the personal circumstances of the appellant. 

1. I would fix the period the appellant must serve before being released on recognisance at two years and two days.  That should lead to the appellant being released 15 months before the expiration of the overall sentence.  I would also fix the total period of the recognisance to terminate at the date of the expiration of the sentence, which means that the recognisance period will be three years, three months and two days.

ORMISTON, J.A.: 

1. I agree.

CHERNOV, J.A.: 

1. I also agree.

ORMISTON, J.A.: 

1. I would add that I think it is regrettable that the legislation here in question should have led to the confusion that it did, both in the court below and for those having to consider it, and for the time which it has required this Court to spend on the matter today, and even now, to put these things into formal effect.  I direct that those matters be drawn to the attention of the Commonwealth Attorney-General.

(Discussion ensued.)

ORMISTON, J.A.: 

1. The Court orders that the appeal be allowed.  The Court orders that the sentences of the learned judge be varied as follows, the Court confirming the head sentences imposed on 15 December 1999, and the Court declaring in respect of the undated indictment (otherwise known as the Barium indictment) that 30 days be treated as having been already served, and that in respect of the indictment dated 11 October 1999 it be declared that 181 days have already been served:-  The Court varies those sentences by setting aside the recognisance release order made on 15 December 1999 and in lieu thereof the Court orders that the appellant be released on a recognisance release order expiring three years, three months and two days from today, and that he be released in accordance with that order after serving a period of two years and two days from today.  The Court directs that the sentence in respect of the indictment of 11 October 1999 do commence today and that the sentence on the undated indictment (otherwise known as the Barium indictment) commence on 28 October 2000.

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