R v Soyturk; R v Ostojic
[2009] VSCA 180
•17 August 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 802 of 2008
| THE QUEEN |
| v |
| CENGIZ SOYTURK |
| and |
No 834 of 2008
| THE QUEEN |
| v |
| MICHAEL OSTOJIC |
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| JUDGES | BUCHANAN JA, BONGIORNO and LASRY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 July 2009 |
| DATE OF JUDGMENT | 17 August 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 180 |
| JUDGMENT APPEALED FROM | R v Cengiz Soyturk (Unreported, County Court of Victoria, Judge Smallwood, 22 August 2008); 1st Revision 2 September 2009 |
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CRIMINAL LAW – Sentencing – Obtaining property by deception – Reopening sentencing discretion due to fresh evidence – Pathological gambling diagnosis – Depressive disorder diagnosis – Sentencing discretion not reopened – Psychological evidence squarely before sentencing judge - Manifest excess – Parity – Role in commission of offences – Vast majority of proceeds of crime received by one co-offender – Acceptable difference in sentences of two offenders in light of respective roles and prospects for rehabilitation – Parity principle not breached – Sentence not manifestly excessive – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Mr C Hyland Solicitor for Public Prosecutions |
| For the Appellant Soyturk | Mr C B Boyce | Victoria Legal Aid |
| For the Appellant Ostojic | Mr R Edney | Victoria Legal Aid |
LASRY AJA:
Both appellants, Cengiz Soyturk and Michael Ostojic, pleaded guilty at the Melbourne County Court to two counts of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958.
The counts against each appellant were identical in terms and alleged that $215,937.74 had been dishonestly obtained from Perpetual Trustees Victoria Limited on 3 September 2004 (count 1) and that $182,141.34 had been obtained from Perpetual Trustees Victoria Limited on 29 December 2004 (count 2).
Both appellants pleaded guilty to the two counts before different judges of the County Court at separate hearings. The first appellant, Soyturk, admitted 36 previous convictions arising from five court appearances. Those convictions included offences of dishonesty, such as theft, obtaining property by deception, possession of money being the proceeds of crime and a large number of offences for entering a casino contrary to an exclusion order.
On 22 August 2008, Soyturk was sentenced to three years’ imprisonment on count 1 and three years’ imprisonment on count 2. Six months of the sentence on count 2 was ordered to be cumulative on the sentence on count 1, giving a total effective sentence of three years and six months. The sentencing judge directed that the first appellant serve two years and three months before he would become eligible for release on parole.
On 18 September 2008, the second appellant, Ostojic, who was without any prior convictions, was sentenced to two years’ imprisonment on count 1 and two years’ imprisonment on count 2. The sentencing judge directed that six months of the sentence on count 2 be served cumulatively with the sentence on count 1. That resulted in a total effective sentence of two years and six months, and his Honour ordered that 18 months of that sentence be served before he became eligible for release on parole.
Both Soyturk and Ostojic filed a Notice of Appeal in relation to these sentences. Leave to appeal was granted to both appellants by Kellam JA on 21 May 2009.
The circumstances of the offending
At the time of the offences, Soyturk’s parents owned property at Deer Park and Soyturk’s wife’s parents owned property at St Albans. In 2004, whilst his mother was in Turkey, Soyturk arranged to make an application for a loan that would be secured by his parents’ Deer Park property. The second appellant, Ostojic, was, at the time, the Sales Manager (Finance) for Capital Securities (Capital) in East Ivanhoe. Capital is a business that arranges finance and submits loan applications for funds provided by Perpetual Trustees Victoria Limited, the victim in the two offences. By arrangement between the two appellants, Ostojic prepared the loan application. To facilitate and provide the security for the loan, a transfer of land was provided which purported to transfer five percent of Soyturk’s parents’ property at Deer Park to Soyturk and his wife. The transfer of land was signed by Soyturk pursuant to a power of attorney from his mother which was, in fact, fraudulent, and which had been prepared without her knowledge. Soyturk’s father’s signature had also been forged on the transfer of land, and the signatures of both of Soyturk’s parents on the loan documents were false. Ostojic witnessed the false signatures of Soyturk’s parents on the loan documents and also witnessed the false power of attorney.
On the strength of that false documentation, Perpetual Trustees approved the loan and transferred $215,937 into an account in the name of Soyturk’s wife. Most of the loan funds, excepting some $2,000, were withdrawn by Soyturk and no loan repayments were made. The offence was discovered by Soyturk’s parents when they received an insurance renewal for the Deer Park property indicating that Soyturk and his wife had been added as interested parties.
Soyturk paid Ostojic a sum of $900 for his role in this transaction.
A similar process was adopted by Soyturk and Ostojic for Count 2. A loan application was completed in the names of Soyturk’s parents-in-law purporting to nominate the St Albans property as security on the loan. Forged signatures were again used to complete the documentation, and so Perpetual Trustees paid $182,141.44 into an account styled Jenco Holdings Pty Ltd of which the appellant, Soyturk was the sole director. Again, the money was withdrawn by him and no loan repayments were made. This offence was discovered when Soyturk’s mother-in-law discovered a letter from the mortgagee’s solicitors regarding payment defaults on the loan.
For his assistance in this transaction, Soyturk paid Ostojic the sum of $2,700 and according to Soyturk’s confessional statement, Ostojic had told him that there were more people involved and therefore requiring payment to secure the second loan.
Soyturk admitted his role in these offences to police and made, among other things, a confessional statement in November 2006 in which he implicated his co-accused, Michael Ostojic. Seemingly as a result of the making of that statement, Ostojic, who had previously denied any criminal conduct, made admissions and disclosed his role in the offending. None of the money which was paid by Perpetual Trustees in September or December 2004 has been recovered from Soyturk, however Perpetual initiated separate proceedings in the County Court to recover the debt against Capital, Soyturk, his parents and his wife and obtained judgment in its favour[1].
[1]Perpetual Trustees and Anor v Capital Securities (Aust) Pty Ltd and Anor [2009] VCC 0034.
Ultimately, Ostojic’s benefit from assisting in the commission of these offences was relatively modest, particularly in comparison with Soyturk. In total, he received about $3,600.
Soyturk’s appeal
Two main grounds of appeal were argued before us. The principal ground of appeal concerned what was characterised as ‘fresh evidence’ regarding the psychological condition of the appellant and which was material that was not before the sentencing judge for reasons which I will come to shortly.
The other grounds of appeal sought to be relied upon were the subject of an application for leave to add further grounds on the day of the hearing of the appeal. Those further grounds asserted that the total effective sentence was manifestly excessive; that the sentencing judge failed to properly take into account the appellant’s assistance to authorities and a ground which concerned the parity principle by reference to the sentences imposed on Ostojic.
Fresh evidence
The plea on behalf of the appellant commenced on Friday, 26 October 2007. During the course of that plea the sentencing judge expressed concern that mitigatory matters were being put from the Bar table which he required be substantiated with some form of subjective independent material. The result was intended to be an adjournment of the proceedings until 17 December 2007 but as a result of matters which were irrelevant to the conduct of this case the matter did not resume until 21 August 2008. Soyturk was sentenced the following day.
Amongst the material before the sentencing judge was a report prepared by the appellant’s consulting clinical and forensic psychologist Mr Jeffrey Cummins. That report was dated 15 February 2008 and was based on an assessment carried out by Mr Cummins on 24 January 2008. The appellant also attended Mr Cummins’ rooms with his wife on 14 February 2008, the day before the report was prepared. The report contains Mr Cummins’ conclusion that the appellant was suffering from a pathological gambling condition (DSM-IV–TR Code 312.31). Mr Cummins recited a lengthy history which he had obtained from the appellant and which included the following:
On the basis of his comments at interview I formed the opinion he has suffered from a Pathological Gambling Disorder. He stated over approximately the past 14/15 years – with the exclusion of approximately the last three years – he has invariably been preoccupied with gambling, has made repeated unsuccessful efforts to control or cut back or stop his gambling, has become restless, irritable and verbally and sometimes aggressive when gambling, has gambled as a way of coping with feelings of depression and anxiety, has regularly chased his losses, has regularly lied to his wife, his own parents and his in‑laws and friends regarding his gambling and has jeopardised friendships and has committed criminal offences (including matters referred to in the Further Presentment and the current offending) in order to obtain money to continue gambling.
The report of Mr Cummins was not before the sentencing judge until 21 August 2008 and became Exhibit 3 in the course of the plea. His Honour indicated that he had received the report and read it. Some analysis was developed during the course of the plea about Mr Cummins’ report and one of the significant debates in the course of the proceedings was whether or not the money obtained by the commission of these offences was for the purpose of gambling or some other purpose.
In his reasons for sentence, the sentencing judge referred to the report of Mr Cummins as well as another psychologist Mr Ives, but concluded it was hard for him to accept that the money was obtained simply for the purpose of gambling. His Honour then said:
The fact of the matter is that the crimes, whether they be for gambling or otherwise, were thought out, were done with the co‑accused and involved the forging of signatures and the making of false documents. They were not, as what sometimes happens in gambling related matters, opportunistic taking of money from an employer or someone similar. The whole thing was thought out.
I am aware of the remarks made by Mr Justice Redlich in the case of R v Grossi [2006] VSCA 405. What his Honour is referring to, is not as I mentioned before, the opportunistic taking by a desperate person from an employer of amounts which then add up over a period of time. His Honour is talking about the calculated choice to steal large sums of money to either gamble or do what you like with.
The benefit or mitigation that can be received by an accused in a situation such as this is very limited indeed.
The sentencing judge went on to observe that Mr Cummins had concluded the appellant was suffering from a pathological gambling disorder.
On behalf of the appellant it was submitted that, unbeknownst to the sentencing judge on 21 August 2008, a further assessment by Mr Cummins had taken place on 5 August 2008 which had resulted in either a change or a development of Mr Cummins’ opinion. Principally, Mr Cummins formed the opinion on further investigation that the appellant was suffering from a dysthymic disorder (a depressive disorder, one level of severity below that of major depressive order) over many years which was probably the trigger for the development of the pathological gambling disorder. That conclusion was the result of an additional history obtained at interview on 5 August 2008.
In an affidavit sworn by the appellant’s solicitor, Ms Carrie Erica O’Shea on 4 May 2009, she deposed that the supplementary report was not provided to the sentencing judge on the resumed plea because the appellant had exhausted his funds and was not able to secure the release of the report.
On behalf of the appellant it was submitted to us that the new assessment by Mr Cummins outlined a severe depressive disorder which might have been at the basis of the gambling disorder from which the appellant was said to suffer. It was argued that such knowledge may have affected the conclusions expressed by his Honour as to weight to be given to the gambling addiction disorder in the sentence to be imposed.
It is exceptional for this Court to entertain new evidence in relation to appeals against sentence:
The Court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence.[2]
[2]See R v WEF [1998] 2 VR 385, per Winneke P at 388 and R v Eliasen (1991) 53 A Crim R 391 per Crockett J at 394.
In my view the so-called fresh evidence should not lead to the imposition of a sentence different from that imposed by the sentencing judge. The issue of the depression of the appellant as connected with his gambling activity was squarely before the sentencing judge as a result of Mr Cummins’ first report of 15 February 2008. It may be that the subsequent report cemented the connection and enabled the gambling addiction to be examined other than in isolation but in my opinion that was open to be done on the material before the sentencing judge. The fact that such an analysis was not conducted does not bear upon the likelihood of the fresh evidence affecting the result.
Bearing in mind that conclusion, it seems to me unnecessary to resolve the question of whether or not the material relied upon is genuinely fresh evidence.
Appellant’s assistance to authorities
This is a short point. It was contended in the course of the application before us that in making the required declaration pursuant to s 6AAA of the Sentencing Act the sentencing judge identified a period of six months as being the discount not only for the plea of guilty but also for the cooperation given by the appellant to the authorities by virtue of his statement implicating Ostojic. In my opinion that is a misinterpretation of his Honour’s reasons for sentence. In the course of those reasons his Honour identified what he regarded as the ‘fictional’ nature of the declaration he was required to make. That is no doubt a reflection on the artificiality of separating a plea of guilty from other mitigatory factors including cooperation with the authorities in order to quantify the discount. His Honour concluded his sentencing remarks by saying:
As I have indicated this figure I am about to give does not include the discount for cooperation and assistance to the prosecution. Pursuant to s 6AAA I say that had you - but for the plea of guilty I would have sentenced you to a period of four years – and two years, nine months as a minimum term.
In my opinion, it is clear that his Honour’s discount of six months was only attributable to the plea of guilty and the declaration required by s 6AAA of the Act.
Bearing in mind the appellant’s 36 prior convictions to which I have previously referred and given the methodical manner in which these offences were committed by him in combination with his co‑accused, it could not be said on any view that the sentence imposed on him was manifestly excessive. I will deal with the parity issue in the course of dealing with the appeal by Mr Ostojic.
I would grant leave to add the further grounds of appeal and dismiss the appeal.
Appeal by Ostojic
The appellant Ostojic’s appeal is broadly based on two arguments. First, that the sentencing judge erred in his application of the principle of parity in relation to the sentence imposed on Soyturk and secondly, that the sentence was manifestly excessive.
Before us it was submitted that the problem in relation to parity arose in connection with the different roles of Ostojic and Soyturk. As Buchanan JA pointed out in argument, although the counts to which both pleaded guilty were identical, the relevant elements are quite different between the two accused. On behalf of Ostojic it was submitted that Soyturk played the dominant role in the commission of the offences and reliance was placed on the fact that he received the vast majority of the benefit. It is true that the vast majority of the proceeds were used by Soyturk and the other significant difference is that unlike Soyturk, Ostojic was a man without prior convictions. On behalf of the Crown it was submitted to us that the roles of each of Ostojic and Soyturk were different but complemented each other.
The principle of parity in sentencing contemplates that those who have been parties to the commission of the same offences should receive the same sentence ‘if other things are equal’[3]. However there is not always equality in the considerations that are relevant. Here the submission is aimed at establishing that although there was a difference in the sentences imposed, the difference was not sufficient.
[3]Lowe v R (1984) 154 CLR 606 at 609.
As Dodds-Streeton JA observed in R v Hildebrandt[4]:
Judicial expositions of the meaning of theparity principle are not entirely uniform. The term “theparityprinciple” is used in at least two senses in the relevant authorities. First, to express the recognition that like cases should be treated alike (itself an emanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the ‘appropriate comparability’ of co-offenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition.
[4][2008] VSCA 142.
In this case the sentencing judge was aware of the sentence imposed on Soyturk and was conscious of the parity issue. He concluded as follows:
The learned prosecutor submitted that on the material before me I ought not distinguish between you and the co‑accused in respect of role. You knew the documentation in respect of these loans was false. Further, the relevant fraud here was a fraud on financial institutions. I agree with these last two submissions.
I have carefully considered the respective roles, antecedents and prospects of rehabilitation of you and the co‑accused. Whilst I do not consider there is much to distinguish between the two of you in respect of role there are significant differences in the antecedents of each of you and in your respective prospects of rehabilitation, and I have accordingly imposed lesser sentences upon you.
This was a carefully planned fraud involving the use of false documents, signatures and elaborate deception. The role of Ostojic was indispensable to the offences being successfully committed. In my opinion, in the context of these offences, there was nothing inappropriate in the observations of the sentencing judge to which I have referred and the difference between the two sentences adequately dealt with the application of the principles of parity. Mr Ostojic received a sentence which was a year shorter as to the head sentence and nine months shorter as to the minimum term to be served before eligibility for parole in the overall context of the head sentence imposed on Mr Soyturk of three years and six months. In my opinion, the difference in the sentence imposed on the two appellants was within an acceptable range as reflecting the relevant differences between them.
In support of the further submission that the sentence was manifestly excessive, counsel identified a number of matters of mitigation which included the appellant’s age; his plea of guilty; his remorse; the lack of prior convictions; his difficult personal circumstances; good employment history; good character; his good prospects of rehabilitation and some delay between offending and sentence. A reading of the reasons for sentence indicates that the sentencing judge clearly took these matters into account. As against those considerations, however, he correctly observed that these offences represented ‘… significant frauds involving a gross breach of trust committed upon your employer. Large sums of money were involved.’ With respect, I agree with his Honour’s reasoning and I am not persuaded that the sentence is manifestly excessive.
I would dismiss the appeal.
BUCHANAN JA:
I agree with Lasry AJA.
BONGIORNO AJA:
I also agree with Lasry AJA.
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