R v Soyturk; R v Ostojic - [2009] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 802 of 2008

THE QUEEN
v
CENGIZ SOYTURK
CENGIZ SOYTURK	and

No 834 of 2008

THE QUEEN

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); R v Michael Ostojic (Unreported, County Court of Victoria, Judge Coish, 18 September 2008) 1^st Revision 2 September 2009 Para [37] added

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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…

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.

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Details

Case: [2009] VSCA 180
Decision Date: 17 August 2009

CaseChat Overview and Summary

The respondents, Soyturk and Ostojic, were convicted of multiple counts of obtaining property by deception. The nature of their crimes involved a sophisticated scheme where they deceived victims into believing they were investing in a legitimate business, resulting in significant financial losses. The case was heard and determined in the High Court of Australia. The primary dispute in this case revolved around the sentencing of the respondents and the contention that the sentences imposed were manifestly excessive. Soyturk and Ostojic argued that the sentences should be reopened due to fresh evidence, specifically their diagnoses of pathological gambling and depressive disorder, which they claimed were not properly considered by the original sentencing judge.

The court was tasked with determining whether the sentencing discretion should be reopened due to the fresh evidence presented and whether the sentences were manifestly excessive and breached the parity principle. The court examined whether the psychological evidence was sufficiently before the sentencing judge and whether the disparity in sentences between the two respondents was justified by their respective roles in the offences and their prospects for rehabilitation. The High Court found that the psychological evidence was indeed before the sentencing judge, who had considered it in the context of the overall circumstances of the case. The court further held that the difference in sentences, given the respondents' differing roles and prospects for rehabilitation, was acceptable and did not constitute a manifest excess or breach the parity principle.

The reasoning of the court was grounded in the comprehensive consideration of the evidence presented at the original sentencing, including the psychological evaluations of the respondents. The court found that the sentences were proportionate to the gravity of the offences and the individual circumstances of each respondent. Given the vast majority of the proceeds of crime were received by one co-offender, the court concluded that an acceptable difference in sentences was warranted. The appeals by Soyturk and Ostojic were therefore dismissed, and the original sentences were upheld.

Orders