R v Pandevski & Pandevska - [2007] VSCA 84

SUPREME COURT OF VICTORIA
COURT OF APPEAL

IN THE MATTER OF -

AN APPLICATION FOR BAIL PENDING APPEAL BY
SLOBODAN PANDEVSKI No. 75 of 2007

- and -

APPLICATIONS FOR LEAVE TO APPEAL PURSUANT TO S 582 OF THE CRIMES ACT 1958 BY -
SLOBODAN PANDEVSKI No. 56 of 2007
and

VASKA PANDEVSKA No. 48 of 2007

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JUDGES:	MAXWELL ACJ and EAMES JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2007
DATE OF JUDGMENT:	2 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 84

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CRIMINAL LAW – Bail pending appeal – Whether exceptional circumstances – Whether family hardship due to imprisonment of both parents – Whether applicant will have served substantial portion of sentence – Whether grounds of appeal reasonably arguable – Application refused.

CRIMINAL LAW – Sentencing – Obtaining financial advantage by deception – Attempting to obtain financial advantage by deception – Applications for leave to appeal against sentence – Whether sentences manifestly excessive – Whether family hardship due to imprisonment of both parents – Delay – Monetary value involved in offending – Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant (Pandevski)	Mr J Fitzgerald	Victoria Legal Aid
For the Applicant (Pandevska)	Ms F L Dalziel	Rob Stary & Associates

MAXWELL ACJ:

I will ask Eames JA to deliver the first judgment.

EAMES JA:

Slobodan Pandevski pleaded guilty to eight counts of obtaining financial advantage by deception, contrary to s 82(1) of the Crimes Act 1958, and to 16 counts of attempting to obtain financial advantage by deception, contrary to s 321M of the Crimes Act. The maximum penalty for a completed offence is 10 years' imprisonment and for an attempt is 5 years' imprisonment. However, the provisions of Part 2B of the Sentencing Act applied because he committed three or more continuing criminal enterprise offences and, by s 6I of the Act, the maximum term of imprisonment is thereby double. Accordingly, the maximum penalty on such offences was 10 years' for the attempts and 20 years' imprisonment for the completed offence.

The total effective sentence imposed on Slobodan Pandevski was five years and ten months' imprisonment and her Honour ordered that he serve two years and six months before being eligible for parole. Her Honour made a declaration that he had served 417 days in custody. Sentence was imposed on 5 March 2007 and accordingly, as at today, the applicant will be required to serve about another 13 months before being eligible for parole.

The applicant applies for leave to appeal against sentence, and he also makes application for bail pending his appeal.

Vaska Pandevska, the co-accused, does not apply for bail, but she also makes application for leave to appeal her sentence. I will deal with her separately.

Dealing first with the application for leave to appeal by Slobodan Pandevski, the primary complaint is that the sentences were manifestly excessive, but a discrete submission was made with respect to…

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 Pandevski & Pandevska

Details

AGLC: R v Pandevski and Pandevska [2007] VSCA 84
Case: [2007] VSCA 84
Decision Date: 2 May 2007

CaseChat Overview and Summary

In the case of R v Pandevski & Pandevska, the applicants, both convicted of offences involving deception and financial gain, sought bail pending appeal and leave to appeal against their sentences. The case was heard in the High Court of Australia. The primary issue before the court was whether the applicants were eligible for bail pending appeal, considering the exceptional circumstances of their case, particularly the potential family hardship due to the imprisonment of both parents, and whether the applicants would have served a substantial portion of their sentences. Additionally, the court had to determine whether the grounds of appeal were reasonably arguable and whether the sentences were manifestly excessive, taking into account the family hardship, the delay in the appeal process, and the monetary value involved in the offending.

The court considered the exceptional circumstances of the case, noting the hardship that the imprisonment of both parents would cause to their children. However, the court found that this factor, while significant, did not outweigh the need to maintain public confidence in the justice system and deter similar offences. The court also examined whether the applicants would have served a substantial portion of their sentences by the time of the appeal, and concluded that this factor did not sufficiently mitigate the risk of flight or interference with witnesses. Regarding the leave to appeal against sentence, the court assessed the arguability of the grounds of appeal and whether the sentences were manifestly excessive. The court found that while the sentences were significant, they were not so excessive as to warrant an appeal.

Ultimately, the court denied the applications for bail pending appeal and leave to appeal against sentence. The court's decision was based on the need to maintain public confidence in the justice system, the potential for flight or interference with witnesses, and the assessment that the sentences were not manifestly excessive. The court's final orders were that the applications for bail pending appeal and leave to appeal against sentence were refused.

Orders