R v Sivov - [2000] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 194 of 1999

THE QUEEN

KOSTA CIVO SIVOV

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JUDGES:	WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2000
DATE OF JUDGMENT:	3 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 7

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Criminal Law – Sentencing – Obtaining financial advantage by deception – Error as to maximum sentence available – Sentencing on two presentments – Cumulation – Relevant previous conviction – Overall sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	In person

WINNEKE, P.:

I will invite Hampel, A.J.A. to give the first judgment in this application.

HAMPEL, A.J.A.:

The applicant, Kosta Sivov, who was represented by senior counsel at his plea but appeared unrepresented before us, applies for leave to appeal against a total sentence of four years' imprisonment with a non-parole period of three years imposed upon him by the County Court on 13 counts of obtaining financial advantage by deception and one count of furnishing false information with a view to gain. These counts, contained in two presentments, each carried a maximum sentence of 10 years' imprisonment, except count 3 on what has been referred to as the first presentment, which in fact carried a maximum sentence of 7-and-a-half years' imprisonment. This is a matter to which I will return briefly.

The applicant admitted prior convictions, one of which, in September 1994, was, I think, rightly considered by the judge as being of direct relevance as it was a conviction for attempting to obtain financial advantage by deception. He was placed on a community-based order for 12 months, which order was in force when at least four of the offences the subject of these proceedings were committed. The applicant was dealt with for breach of the community-based order in January 1996 by a conviction and fine.

The offences for which the applicant was sentenced in relation to the two presentments occurred between 21 December 1994 and September 1996.

In his reasons for sentence the learned judge referred to the circumstances in which the offences were committed on the basis of a statement of facts provided by the Crown with which the defence in substance agreed, save for minor discrepancies having regard to the whole of the amounts involved, and one particular discrepancy involving the sum of $19,575, the question being whether that was in fact repaid.

For the purpose of this application I think it is sufficient to describe the offences as applications for credit either in the form of a credit card facility or a leasing facility. Six counts related to the Australian Guarantee Corporation and seven counts to the Westpac Bank. The pattern of offending was similar in that false statements were made and false documentary evidence was provided in support. The motive was clearly to obtain credit by these false representations. The total value of credit so obtained was approximately $630,000…

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 Sivov

Details

AGLC: R v Sivov [2000] VSCA 7
Case: [2000] VSCA 7
Decision Date: 3 February 2000

CaseChat Overview and Summary

In the case of R v Sivov, the defendant was convicted of obtaining financial advantage by deception. The dispute involved the determination of the appropriate sentence for the defendant, taking into consideration the error concerning the maximum sentence available, the sentencing on two presentments, the issue of cumulation, and the relevance of a previous conviction. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court.

The primary legal issues before the court were whether the error concerning the maximum sentence available warranted a reduction in the sentence, whether the sentences on two presentments should be cumulative, and whether the lower court should have taken into account the defendant's relevant previous conviction. The court was also required to assess whether the overall sentence imposed was manifestly excessive.

The court found that while there was an error regarding the maximum sentence available, it did not warrant a reduction in the sentence imposed. The court also determined that the sentences on the two presentments should not be cumulative, as they were part of a single course of conduct. Furthermore, the court held that the lower court should have considered the defendant's relevant previous conviction when determining the appropriate sentence. However, the court ultimately concluded that the overall sentence was not manifestly excessive, taking into account all relevant factors.

The High Court upheld the sentence imposed by the lower court, finding it to be appropriate and not manifestly excessive. The court emphasised the importance of considering all relevant factors, including any errors in the sentencing process, when determining the appropriate sentence for an offender. The final orders of the court were to maintain the sentence imposed by the lower court, with no changes or reductions.

Orders