R v Sittczenko; ex parte

Case [2005] QCA 461


SUPREME COURT OF QUEENSLAND

CITATION:

R v Sittczenko; ex parte Cth DPP [2005] QCA 461

PARTIES:

R
v
SITTCZENKO, Arkady

(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 221 of 2005
DC No 405 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cwth DPP

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2005

JUDGES:

de Jersey CJ, Keane JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal against sentence by the Commonwealth Director of Public Prosecutions is allowed

2. The sentence imposed below is set aside and, in lieu thereof, the respondent is sentenced to 18 months imprisonment for each offence to be served concurrently, with the respondent to be released after having served five months upon giving security by recognizance in the sum of $4,000 conditional on him being of good behaviour for five years

3. A warrant is to issue for the arrest of the respondent

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent pleaded guilty to 11 counts of inducing another to deal in financial products by dishonest concealment of material facts in contravention of
s 1041F(1)(b) Corporations Act 2001 (Cth) - where the counts arose out of the operation of a scheme whereby the respondent made it possible, in return for a commission, for individuals to access preserved superannuation benefits - where the respondent received concurrent sentences of 18 months imprisonment with respect to each offence but the learned sentencing judge proceeded to order that the respondent be released forthwith upon giving a recognizance in the sum of $4,000 - where the offending with which the respondent was charged took place after the respondent agreed to civil orders made by the Federal Court which restrained him from having any involvement in any business purporting to facilitate the early release of superannuation benefits - where the respondent had provided an undertaking to co-operate with law enforcement authorities against a co-offender - where the respondent had no prior criminal history - whether the learned sentencing judge had given proper weight to the promise of co-operation with the authorities - whether the Court of Appeal should impose a short period of imprisonment after the respondent had been released into the community - whether the sentence imposed on the respondent was manifestly inadequate

Corporations Act 2001 (Cth), s 1041
Crimes Act 1914 (Cth), s 21E
Criminal Code 1899 (Qld), s 669A(1)

Director of Public Prosecutions (Cth) v Hunter [2004] VSCA 219; (2003) 7 VR 119, cited

R v Brady; Brindley & Shale [2005] QCA 135; CA No 32, 39 and 80 of 2004, 29 April 2005, cited

R v Solway;…

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Details
AGLC
R v Sittczenko; ex parte [2005] QCA 461
Case
[2005] QCA 461
Decision Date

CaseChat Overview and Summary

In the case of R v Sittczenko; ex parte, the respondent had pleaded guilty to 11 counts of inducing another to deal in financial products by dishonest concealment of material facts. The charges stemmed from the respondent's involvement in a scheme that facilitated the early release of superannuation benefits, contrary to section 1041F(1)(b) of the Corporations Act 2001. The respondent was sentenced to 18 months imprisonment for each offence, but the sentencing judge ordered his immediate release on a recognizance of $4,000. The Commonwealth Director of Public Prosecutions appealed against the sentence, arguing it was manifestly inadequate.

The court had to determine whether the sentencing judge had appropriately considered the respondent's promise to cooperate with law enforcement authorities, and whether the Court of Appeal should impose a short period of imprisonment. The court also needed to decide if the sentence imposed was manifestly inadequate. The court considered previous cases, including Director of Public Prosecutions (Cth) v Hunter and R v Brady; Brindley & Shale, which discussed the circumstances under which a sentence could be deemed inadequate. The case of R v Solway; ex parte Attorney-General (Qld) was distinguished as it involved a different set of facts. The court's reasoning focused on the nature of the offence, the respondent's promise of cooperation, and the potential deterrent effect of a custodial sentence.

The Court of Appeal found that the sentencing judge had not given proper weight to the respondent's promise to cooperate with authorities. The court also concluded that the sentence was manifestly inadequate and did not reflect the seriousness of the offence. As a result, the appeal against the sentence was allowed. The original sentence was set aside, and the respondent was sentenced to 18 months imprisonment for each offence, to be served concurrently, with release after serving five months upon giving security by recognizance in the sum of $4,000, conditional on good behaviour for five years. A warrant was issued for the respondent's arrest.

Orders

Orders of the court

1. The appeal against sentence by the Commonwealth Director of Public Prosecutions is allowed

2. The sentence imposed below is set aside and, in lieu thereof, the respondent is sentenced to 18 months imprisonment for each offence to be served concurrently, with the respondent to be released after having served five months upon giving security by recognizance in the sum of $4,000 conditional on him being of good behaviour for five years

3. A warrant is to issue for the arrest of the respondent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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