R v Roumeliotis
[2000] VSCA 2
•1 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 268 of 1999
| THE QUEEN |
| v |
| PAUL STEVEN ROUMELIOTIS |
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JUDGES: | WINNEKE, P., BATT, J .A. and HAMPEL, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 January 2000 | |
DATE OF JUDGMENT: | 1 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 2 | |
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Criminal Law – Sentencing – Obtaining property ($35,000) by deception – Deliberate and constituting breach of prior suspended sentence – Imprisonment for 18 months with 9 months’ non-parole period not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. T. Gyorffy | P. C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. O.P. Holdenson, QC | Koutsantoni & Assoc. |
WINNEKE, P.:
I will invite Batt, J.A. to give the first judgment in this application.
BATT, J.A.:
The applicant, Paul Steven Roumeliotis, who was born on 18 June 1966, pleaded guilty on arraignment in the County Court at Melbourne on Monday 18 October 1999 to one count of obtaining property by deception, contrary to s.81(1) of the Crimes Act 1958. The maximum penalty for that offence was imprisonment for 10 years. The applicant admitted the following prior convictions from two previous court appearances. On 14 March 1996 he had been convicted in the Magistrates' Court of four traffic offences, including driving in a manner dangerous, and had been sentenced to one month’s imprisonment, which was wholly suspended for 12 months, disqualified from driving for 12 months and fined an aggregate of $800. Then on 15 August 1997 he had been convicted in the Magistrates' Court of driving a motor vehicle while disqualified and fined $750. The offence to which he pleaded guilty in the County Court occurred on or about 3 October 1997.
Immediately after the applicant’s arraignment a plea in mitigation of penalty was made during which two witnesses were called. As the transcript of the plea and the Associate’s endorsement on the presentment show, his Honour that day pronounced an order pursuant to s.86 of the Sentencing Act 1991 that the applicant pay the victim within 30 days the sum of $43,000 by way of compensation. That sum was the aggregate of the amount of property obtained, $35,000, and interest of $8,000, being approximately the amount of interest which the victim, who had borrowed the entire sum of $35,000, had been charged by his lender. In fact the amount of $35,000 had been paid to the victim by the applicant's father during the weekend immediately preceding the day of the plea. On 22 October 1999 his Honour convicted the applicant, sentenced him to be imprisoned for a period of 18 months and directed that he serve a minimum of 9 months' imprisonment before becoming eligible for parole. He declared that five days spent in custody be reckoned as time already served under the sentence. The sum of $8,000 was paid to the victim shortly before the applicant was sentenced.
By notice filed 28 October 1999 the applicant seeks leave to appeal against sentence on the single ground that it is manifestly excessive in all the circumstances.
The offence as charged in the presentment was that the applicant dishonestly obtained from Ellis Mouratidis a cheque for the sum of $35,000 payable to PSR Automatics with the intention of permanently depriving Mouratidis of the cheque by deception, namely, by representing:
(a) that the purchase price for the lease of premises situated at 495 Glenhuntly Road Elsternwick was $70,000;
(b) that he had already paid the sum of $70,000 to the vendor of the lease; and
(c) that the cheque would be applied for the purchase of a half share in the lease.
Of the material available to this Court his Honour's reasons for sentence contain the clearest and most detailed statement of the facts relating to the offence and I largely take the following summary from those reasons. Mouratidis had carried on business as a motor mechanic under the name Chapman's. That business or, more correctly, the freehold on which it was carried on was purchased by the Roumeliotis family. Mouratidis then commenced carrying on business as Eskdale Motors in leased premises at Caulfield. In or about August 1997 the applicant began to frequent Mouratidis's business. During conversation he became aware that the lease was due to expire in September 1997 and that Mouratidis was searching for alternative premises. He informed Mouratidis that he was acquiring a workshop at 495 Glenhuntly Road, Elsternwick and that it was going to cost $70,000. He offered Mouratidis a 50 per cent share in a partnership in the business PSR Automatics for the sum of $35,000, stating that that money would be used to pay part of the deposit on the Glenhuntly Road workshop. Mouratidis gave him a cheque for $35,000 in reimbursement of his 50 per cent share of the $70,000 deposit that the applicant stated he had already paid to purchase the lease of the Glenhuntly Road premises. That statement was untrue. Moreover, the money paid by Mouratidis was not applied as the applicant represented it would be, but was quickly dissipated in payment of personal and business expenses. Despite the applicant's assurances, the Glenhuntly Road workshop was not available when the existing lease expired. Mouratidis transferred his business from Caulfield to 196 New Street, Brighton. Despite continued assurances from the applicant, nothing happened regarding the Glenhuntly Road premises. Various excuses for delay were tendered by the applicant. About Christmas 1997 he stated that he would be refunding Mouratidis's money as he was going to purchase the business on his own. In early January 1998 Mouratidis carried out some investigations and ascertained that in fact no deposit had ever been paid by the applicant and that the existing tenant of the Glenhuntly Road premises had never intended to sell his business to the applicant at any time. (On the plea it was put for the applicant, and it seems to have been accepted by the prosecution, that the applicant had negotiated the purchase price of the lease with the existing tenant down from the $70,000 initially required by the tenant to $35,000. If that is correct, it made the applicant's representations false in another respect.) Mouratidis demanded his money back. On two separate occasions in January 1998 cheques for $35,000 were written by the applicant but on each occasion the cheques were returned by the bank as insufficient funds were available.
Further attempts to communicate with the applicant failed and the matter was reported to the police. The applicant was interviewed by the police on 17 March 1998 and, as to all matters of substance, gave "no comment" answers when interviewed. The applicant was charged and pleaded not guilty. On 16 April 1999 he pleaded not guilty before the Chief Judge on a presentment containing three counts, namely, the count of obtaining the $35,000 by deception and two counts of obtaining financial advantage by deception in relation to the two dishonoured cheques. The matter was fixed for trial on 18 October 1999, but shortly before that date became a plea to the sole count referred to at the commencement of these reasons, which was contained in a substitute presentment.
The applicant, the youngest of three sons, comes from a wealthy Greek family. He is a skilled motor mechanic specialising in the repair of automatic transmissions for Mercedes Benz vehicles. Besides having his basic trade certificate as a mechanic, the applicant had been a member of the Institute of Automotive and Mechanical Engineers for some six years at the date of the plea. He had left school at the age of 16 and worked in the family business for the next 14 years. With changes taking place in that business, the applicant decided to strike out on his own and establish his own business and in mid-1997 took steps to secure the premises in Elsternwick as already mentioned. Whilst the applicant was apparently an excellent mechanic, he was a poor businessman. During the period of his employment in the family business he had, it seems, been protected as being the youngest child and had not been exposed to the making of critical business decisions. Although his family was wealthy and money was available to him, he really had no assets of his own. Thus, at the time of the plea he was living in a unit provided by his father. But he liked to give the impression that he was a person of means. He also had an inflated view of his business acumen.
Since committing the offence now in question, the applicant has not been in any trouble with the police. He commenced his own business of a prestige car service and automatic transmission workshop in Highett in October 1998, apparently receiving family assistance in establishing it. Despite its location, the fledgling business was described in evidence as surprisingly successful. On the plea his counsel said that he operated the business with the only debts being for rent and trade suppliers, who required and received payment within seven days, which was later extended to 30 days. He was the only mechanic working in the business until one week before the plea, when he employed another mechanic.
The applicant is single. He had planned to marry in November 1999, having been engaged for some 14 months. His fianceé was described by one of the witnesses as "a fantastic lady" of good character. (We were told that the wedding had now been fixed for 12 February of this year). The applicant was said on the plea not to be addicted to any illicit substance.
His Honour recorded the facts relied on in the plea before him, almost all of which I have summarised earlier. He recorded the submission that the plea of guilty should be taken into account notwithstanding its lateness and that two years had elapsed since the offence. His Honour noted the disposition sought for the applicant: the submission was that the offence was entirely a financial matter and that a financial penalty, that is, a fine, was accordingly an appropriate sentence. In the alternative, counsel had submitted, any sentence of imprisonment ought to be wholly suspended to enable the applicant to continue with his business and become a useful employing member of the community. The prosecutor had submitted that imprisonment was the only form of punishment appropriate, but the Crown did not oppose a totally suspended sentence.
His Honour continued:
" There are a number of features in this case which cause me concern; these may be summarised as follows.
(1) The deliberate nature of the offence. The prisoner clearly set out to relieve Mouratidis of $35,000. (2) The spending of the money received for apparent business and personal purposes, with no regard for the purpose for which it was paid. (3) The failure by anyone - the prisoner or any other person connected with the prisoner by loan or otherwise - to pay back any part of the $35,000 until two days prior to the plea being heard. (4) The quantum of the sum involved. (5) The timing of this offence, bearing in mind the narrow escape the prisoner must have had in the Magistrates' Court, on 15 August 1997, when facing a term of imprisonment for breach of a suspended sentence. (6) The late plea of guilty. (7) The lack of any real explanation from the accused or anybody else, on his behalf, as to why the money was obtained, and the use to which the money was put. All the depositions reveal is that the $35,000 was very quickly removed from the prisoner's bank account after it had been deposited."
As to the fifth feature noted by his Honour, the judge had very early in his sentencing remarks pointed out that the subject offence took place on 3 October 1997, less than two months after the applicant escaped a term of imprisonment for driving whilst disqualified and for breaching, thereby, a suspended term of imprisonment. "These facts in my view show", said his Honour, "a scant regard for the law and its processes and for the consequences of one's own actions."
Having listed the features which caused him concern, his Honour said that principles of specific and general deterrence were of paramount importance; and that the deliberate obtaining of money by deception from a fellow businessman could not be swept under the carpet by stating that it was simply a financial matter between businessmen and accordingly not to be treated seriously. In the judge's opinion this type of criminal activity warranted a term of imprisonment. In the circumstances of the particular prisoner he came to the conclusion that that meant a term of imprisonment actually served. He then proceeded to impose the sentence earlier set out.
In this Court Mr Holdenson, for the applicant, relied particularly upon the applicant's plea of guilty to the one count on the presentment; the consequences of that plea; and the fact that the victim, ultimately, sustained no financial loss whatsoever. He then emphasised that, since committing the subject offence, the applicant had established his own business in which he had worked very hard, had become engaged to be married and had been in no further trouble. Counsel also drew attention to the evidence that, apparently after the offence (though that is far from clear), the applicant had arranged for a motor mechanic in Brighton to let Mouratidis use one of his workshop bays for the conduct of his business while it was "in transition" after Eskdale Motors had closed down. It was put that this evidence of assistance showed a recognition by the applicant of responsibility for the wrong done to his victim. It was then put that it was clear from all this material that the applicant had matured and settled down and that it was unlikely that he would re-offend. Indeed, it was pointed out, sworn evidence to that effect was given on the plea. That was not, however, from the applicant, and I do not find the prognostic opinion, in itself, of much force. Counsel submitted that there had been good prospects of rehabilitation, that his Honour had given too much weight to specific deterrence and that counsel below had been correct in contending, first, that the applicant had learned a salutary lesson and, then, that an actual term of imprisonment was not necessary to reinforce that lesson. Counsel before us recognised, however, that the possibility of total suspension was "well and truly past". Counsel then turned to the applicant's prior convictions, submitting that, when regard was had to their nature, they were clearly, at most, of limited relevance, though their relevance on timing aspects was accepted. By way of conclusion it was submitted that in the light of the foregoing submissions and the other matters relied upon on the plea the sentence imposed was manifestly excessive, being out of proportion to the misconduct and outside the range of sentences appropriate for an offence of this nature. The offence was in short, it was said, a silly, bold and impetuous one, but Mr Holdenson candidly accepted, in answer to the President, the description of the offence as "a pretty brazen fraud".
For the respondent it was submitted that his Honour was entitled to rely on the seven features he identified, coupled with the applicant's mature age and comfortable circumstances, to conclude that general deterrence and specific deterrence were to be given significant weight. His Honour had taken the view, it was contended, that this was not a momentary lapse. An immediately effective sentence of the length imposed was within the range for this offence committed by the applicant.
As has been said times without number, whether a sentence is manifestly excessive does not admit of a great deal of argument. Some observations may, however, be made here. I agree that the nature of the applicant's prior convictions is of little relevance, but in my view, as was really accepted by Mr Holdenson, particularly when the judge was asked in the alternative to suspend wholly any term of imprisonment, he was entitled to give considerable weight in arriving at his sentencing disposition to the fact that the applicant's last prior conviction constituted a breach of the suspended sentence previously given to him and also to the closeness in time between the sustaining of the last prior conviction and the commission of the instant offence. In relation to the sixth point listed by his Honour, "the late plea of guilty", I do not understand his Honour to have treated that as an aggravating circumstance. Nor was that submitted for the applicant, though counsel, if I may say so, did flirt with the possibility of specific error. This experienced judge should rather, I consider, be taken to mean that the lateness of the plea meant that the plea was of little force by way of evidencing remorse. A similar point may arise in relation to the third feature identified by his Honour. I take his Honour simply to have been saying that a mitigating factor, repayment, though present, was not of very great weight by reason of its late and grudging nature.
It is clear, in my view, that in all the circumstances of this offence and this offender it was open to the judge, in the exercise of a sound discretion, to impose a term of imprisonment: he was not, I consider, obliged merely to fine the applicant or impose some other sentence short of imprisonment. Similarly, the requirement that the applicant actually serve a period of imprisonment was, in my view, well within the range of sentences open to his Honour: he was not bound to conclude that it was "desirable ... in the circumstances" within s.27(1) of the Sentencing Act 1991 to suspend wholly any sentence of imprisonment. More generally, his Honour was not obliged to adopt the method of partial suspension to effect the mitigation of any term of imprisonment which mercy to the applicant and benefit to the public might justify: it was open to his Honour to achieve that by a disposition permitting release on parole.
Since no criticism can, in my view, be made of the non-parole period of nine months if the length of the head term of 18 months is unexceptionable, the ultimate and, as it seems to me, only real question is whether the head term is manifestly excessive. As has also been pointed out times without number, the question is not whether this Court would itself have imposed the sentence which his Honour did but whether his Honour's sentence was within the range of sentences properly open to him for this offence by this offender. I have concluded that the head term was within the range open and therefore not manifestly excessive, though I must say that I think it towards the upper end of that range. In essence I reach this conclusion because this was a deliberate, substantial and unexplained offence of dishonesty committed upon an individual person by one who had already been given the opportunity afforded by a suspended sentence. Courts view substantial offences of dishonesty seriously. This offence cannot be palliated by being described as silly and his Honour was entitled to find (as, in my view, he impliedly did) that it was not a momentary lapse or an impetuous act.
Accordingly, I would dismiss this application.
WINNEKE, P.:
For the reasons given by Batt, J.A., I agree that the application ought to be dismissed.
HAMPEL, A.J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the application on behalf of Paul Steven Roumeliotis is dismissed.
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