R v Stanisavljevic
[2004] VSCA 144
•3 August 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 64 of 2004
| THE QUEEN |
| v. |
| ZANKLINA STANISAVLJEVIC |
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JUDGES: | BATT, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2004 | |
DATE OF JUDGMENT: | 3 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 144 | |
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Criminal law – Sentence – Obtaining property by deception – Attempting to obtain property by deception – Appellant with prior relevant convictions – Appellant’s mother was victim of offences – Manifest excess – Impact of imprisonment on appellant’s partner and young son – “Amateurish” nature of appellant’s conduct – Whether sentencing judge should have ordered greater degree of concurrency as offences were related and proximate in time – Whether sentencing judge erred in his considerations of a wholly suspended sentence – Whether sentencing judge erred in not taking into account the victim’s view that her daughter not be incarcerated – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Ms H. Spowart | Victoria Legal Aid |
BATT, J.A.:
I will ask Vincent, J.A. to deliver the first judgment in this matter.
VINCENT, J.A.:
The appellant pleaded guilty before the County Court at Melbourne on 29 March 2004 to nine counts of obtaining property by deception and one count of attempting to obtain property by deception. She admitted eight previous findings of guilt from a Magistrates' Court appearance on 31 January 1995. They related to seven charges of theft and one of obtaining property by deception. The appellant on that occasion was released on entering into an undertaking to be of good behaviour for a period of 12 months. She also admitted three previous convictions from a Magistrates' Court appearance on 27 June 1995. They also assume relevance in the present context as they arose from two charges of theft, and one of stating a false name and address.
After hearing a plea in mitigation of penalty, the learned sentencing judge on 30 March 2004 imposed the following terms of imprisonment:
On count 1 - 1 month
On count 2 - 1 month
On count 3 - 9 months
On count 4 - 6 months
On count 5 - 9 months
On count 6 - 1 month
On count 7 - 1 month
On count 8 - 1 month
On count 9 - 1 month
On count 10 - 1 month.
His Honour directed that two weeks of the sentences imposed on counts 1, 2 and 6 to 10 inclusive be served cumulatively upon each other and upon the sentence imposed on count 3. He directed that three months of each of the sentences on counts 4 and 5 be served cumulatively upon each other and the other sentences imposed. This created a total effective sentence of one year three months and 14 weeks. His Honour directed that the service of 12 months of the sentence be suspended for a period of two years.
Having been granted leave to do so, the appellant appeals against the sentence on the following grounds:
"1. The sentence imposed by the court is manifestly excessive.
2.The learned sentencing judge erred in the orders he made for cumulation.
3.The sentence imposed on count 4 is disproportionate.
4.The learned sentencing judge erred in his consideration of whether a wholly suspended sentence should be imposed.
5.The learned sentencing judge erred in treating the amateurishness of the [appellant's] offences as irrelevant for sentencing purposes.
6.The learned sentencing judge erred in not taking into account the view of the [appellant's] mother, the victim of the offences, in passing sentence.
7.In the light of the impact on the [appellant's] partner and son of her imprisonment this Court should reduce the term of imprisonment to be served by the [appellant]."
The background
On 26 October 2002, the appellant's mother, Ms Radmila Stojanovic, had the good fortune to win a Tattslotto dividend in the sum of $748,500.93. Over the following months she expended part of this sum by way of gifts to family and friends, leaving her with approximately $400,000 which was deposited in a Bank of Melbourne Cash Management account accessible by a debit card and a cheque book.
Counts 1 and 2
On 5 December 2002 the appellant went to her mother's unit in Noble Park and, while Ms Stojanovic was in another room, took her debit card from her purse. She then proceeded to her mother's bedroom where she located her personal identification number for the card. So equipped, she was able to make two cash withdrawals of $500 from an automatic teller machine, at the Parkmore Shopping Centre.
Count 3
Later that day she went to the Bank of Melbourne branch at the shopping centre. Posing as Radmila Stojanovic and using her mother's debit card and PIN, she obtained a bank cheque in the sum of $50,000, payable to Mr Bernard Kovac, the father of the appellant's child. She contacted Mr Kovac, requested him to meet her at the shopping centre and when he did so, gave him the cheque saying that it was a present to her from her mother. She asked Mr Kovac to deposit the cheque into his account in order to avoid her social security benefits being affected. He agreed to do this and the cheque was paid into his National Bank account on the same day. She then returned to her mother's unit. By that stage Ms Stojanovic had realised that her card was missing. The appellant dealt with this problem by placing the card near a couch in the unit and then pretending to find it. The proceeds of the cheque were subsequently withdrawn and spent by the appellant.
Count 4
On 8 January 2003, while at her mother's house, the appellant took a personal cheque form from her mother's purse. She wrote a cheque in the sum of $70,000 payable to Bernard Kovac and forged Ms Stojanovic's signature. The appellant met Mr Kovac later that day, and handed the cheque to him, indicating again that it was a gift. The cheque was then presented by him at the Bank of Melbourne at Dandenong for deposit into his account. Within two days a discrepancy between the signature on the cheque and the bank's record of Ms Stojanovic's signature was detected and it was dishonoured. The appellant said that she had adopted this technique because "I had no other way of obtaining that keycard again".
Count 5
On 10 January 2003 the appellant attended at the Bank of Melbourne in Dandenong. Again she presented herself as Radmila Stojanovic and used her mother's debit card and PIN, which she had managed to secure, to obtain a cheque in the sum of $70,000. The cheque was also made payable to Mr Kovac who agreed to have the money paid into his account. As on the previous occasions, the appellant informed him that her mother had given her the money and that she had agreed to make the cheque payable to him so as not to affect the appellant's social security benefits. The cheque was paid into Mr Kovac's account on 11 January 2003. He subsequently withdrew the proceeds and handed the money to the appellant. She gave $50,000 to one of her brothers and spent the remainder.
Count 6
On the same day the appellant went to the Parkmore Shopping Centre where she used her mother's debit card and PIN to withdraw $500 from an ATM. The money was spent on clothing for her son and herself.
Counts 7 to 10
On 13 January 2003 the appellant went to an ATM in Noble Park and using her mother's debit card and PIN withdrew $1,500 in three separate transactions of $500 each. On the same day she went to another ATM at Keysborough and withdrew a further $500.
The total amount secured by the appellant through the commission of these offences was $123,500 and she attempted to obtain the $70,000 encompassed by count 4. When interviewed by the police the appellant said that her reason for engaging in this conduct was "growing up in a shit-arse life all my life with her running my life".
The Grounds
It is convenient to deal first with the assertions of specific error advanced before us and to commence with a consideration of ground 2.
Ground 2
On behalf of the appellant, counsel submitted that as counts 1, 2 and 3 were committed on the same day and with identical conduct involved in counts 1 and 2 which were committed in immediate succession, they should have been treated as a single transaction and with little or no cumulation ordered with respect to them. A similar submission was advanced in relation to the offences encompassed by counts 7, 8, 9 and 10 which were also committed within a short timeframe, on a single day, and involved identical conduct. Whilst the behaviour underlying counts 4 and 5 was different and the offences were committed on separate days, the sentencing judge fell into error, it was asserted, by not directing a greater degree of concurrency, as they were obviously related and proximate in time.
The proper approach to be adopted by a sentencing judge with respect to the circumstances in which an order for cumulation should be made and the amount of cumulation to be ordered has been the subject of consideration by this Court on many occasions. I need only refer to the judgments in DPP v. Grabovac[1] and R. v. Lomax[2] in this context. It is clear enough that the sentencing judge in this case adopted the approach of imposing what he regarded as an appropriate sentence for each separate offence. His Honour then addressed the question of the relationship between the various offences and the principle of totality through the making of orders for partial cumulation with respect to some of them. With regard to the offences in counts 1 and 2, as counsel pointed out, they were committed in immediate succession but they nevertheless constituted separate crimes. The individual sentences imposed in respect of them were clearly within the range available to the sentencing judge and the effective period of imprisonment of four weeks created by his Honour's orders for cumulation can be similarly described.
[1][1998] 1 V.R. 664.
[2][1998] 1 V.R. 551.
The same point can be made with regard to the offences in counts 7, 8, 9 and 10.
Counts 3, 4 and 5 relate to significantly different forms of conduct designed to secure access to substantial sums of money in the appellant's mother's bank account. To that extent they were, of course, related, as indeed in the same sense were all of the offences committed by the appellant. The crimes encompassed by each of these three counts were, individually considered, very serious. Each involved conduct of a blatantly criminal character and they were committed in quite different circumstances on separate days. Some measure of cumulation was obviously called for to reflect these features. I am far from persuaded that the sentencing judge fell into error in making any of the orders for cumulation that he did.
In summary, I am of the view that none of the complaints of specific error contained in ground 2 possesses substance and that, accordingly, this ground must fail.
Ground 3
Counsel contended that the sentence imposed on count 4 was disproportionately heavy when compared with that imposed on count 5. The argument rested upon the difference between the maximum penalty of 10 years' imprisonment that can be handed down for the completed offence of obtaining property by deception (the offence underlying count 5) and the maximum penalty of five years' imprisonment that can be imposed for an attempt to commit it (the offence involved in count 4). However, it must be remembered that the sentences here were six months' imprisonment on count 4 and nine months' imprisonment on count 5 respectively. Each of the sentences fell within the range of those available in the circumstances. Indeed, both could reasonably be described as moderate, in my opinion. The sentence handed down for the completed offence was 50 per cent longer than that imposed for the attempt. No disproportion of the kind asserted has been demonstrated by reference to his Honour's sentencing remarks, nor can any be detected upon comparison of the sentences themselves when regard is had to the particular circumstances in which they occurred. Nor, indeed, can any be seen to arise by reference to the maximum penalty applicable to each of those offences.
Ground 4
This ground also fails, in my opinion. The learned sentencing judge considered the question of the possible suspension of at least part of the term of imprisonment that he determined was required in the proper exercise of his discretion in the circumstances. Although his Honour, in discussion, indicated that he had "never been terribly impressed with the efficacy of suspended sentences",[3] nevertheless he did direct that the service of approximately two-thirds of the term imposed be suspended. As his Honour remarked:
"Notwithstanding the matters that may be put in your favour, in my view, the seriousness of your offending and the amount of money involved does involve some part of your sentence to be served in custody."[4]
[3]T.20.
[4]Sentence T.36.
I am unable to detect any error in his Honour's approach to this aspect. The seriousness of the appellant's conduct and the amount involved were both relevant matters to be taken into account in determining whether the service of any and what part of the sentence should be suspended. It is apparent that his Honour also had regard to what he referred to as "the matters that may be put in your favour"[5] when dealing with this aspect. I consider that it was clearly open to him to conclude that the proper exercise of the sentencing discretion required the handing down of a sentence involving a period of immediate incarceration. That period of approximately eight months cannot be properly described as inappropriate or manifestly excessive in the circumstances. Nor do I consider that his Honour's general view of the value of suspended sentences can be seen to have led him into error in this case.
[5]Sentence T.36.
Ground 5
In the course of handing down sentence, his Honour stated:
"It was said by Mr Bourke that these offences were committed in an unsophisticated manner and that you were bound to be caught, in particular because you passed yourself off as your mother on one occasion when obtaining the bank cheque, giving the Bank details of your full name and date of birth.
I must say I do not find that submission a very attractive one. Whether you were an amateur or an incompetent fraudster or an expert one does not, in my view, reduce your moral culpability, or indeed your criminal culpability."[6]
[6]Sentence T35.
Counsel submitted in support of this ground that the sentencing judge fell into error in this passage, arguing that the absence of sophistication that can be detected in the appellant's behaviour reveals a great deal about her motivation, lifestyle and the circumstances in which her offences were committed. There is no need, in the context of the present case, to attempt to expound upon the various ways in which the presence or absence of expertise in the commission of particular forms of criminal offending can be taken into account by a sentencing judge. Sometimes the techniques employed may be very elaborate and demonstrate a high level of expertise, planning and criminality. On occasions they may suggest the opposite. However, the level of competence in offending of itself may not be particularly helpful and incompetence is not of itself a mitigatory factor. Many of those who appear quite regularly before the criminal courts in this State try to compensate for a low level of competence by demonstrating a high degree of persistence.
I interpret the judge's comments in this case as primarily directed to indicating his Honour's view of the morality of the appellant in stealing from her mother and the criminal seriousness of such conduct in the circumstances before him, and not as expressing the opinion that the amateurish nature of a person's conduct would never assume relevance in the assessment of an individual's situation for sentencing purposes. In any event, even if I am incorrect with respect to my interpretation of his Honour's remarks, I do not consider that they suggest error of a king that would justify the intervention of this Court.
Ground 6
It was argued in support of this ground that the sentencing judge failed to have regard to the wish of the mother, who was described as the victim of the offences, that the appellant should not be incarcerated. Setting to one side the very difficult question of the circumstances and extent to which a sentencing judge can properly take such wishes into account, this ground is misconceived. At one point in his sentencing remarks, his Honour stated:
"Counsel informed me that your mother had been substantially reimbursed by the Bank for the moneys that you had taken out of her account. However, whether she was reimbursed by the Bank or not, either your mother or the Bank, or probably both of them, were the victims of your deceit and dishonesty."[7]
A little later he said:
"I am informed, however, that while some of the money which you took was spent on your own expenses, a substantial part was given to your younger brother and to charity. I might say, the fact that the Bank was defrauded of this money because it was required to compensate your mother takes this matter out of the area of a domestic family type issue and raises broader questions."[8]
[7]Sentence T.34.
[8]Sentence T.35.
There is no reason to suppose that his Honour had forgotten or discarded the evidence given by the appellant's mother before him, nor to infer that he failed to have adequate regard to it. Indeed, in the second passage, he appears to be making a direct reference to this evidence, but his Honour also recognised that the appellant's mother was not the only victim, nor ultimately did she bear the substantial part of the loss.
This ground must fail.
Ground 7
In the course of this proceeding an application was made on behalf of the appellant that the Court receive and consider an affidavit sworn by Bernard Kovac, who, as I have earlier mentioned, is the father of the appellant's four-year-old son. It was submitted that the material contained in the affidavit established that both Mr Kovac and the child were experiencing exceptional hardship as a result of the appellant's imprisonment and that as a consequence the period of immediate incarceration, to which she was subjected, should be reduced.
The members of the Court, mindful in particular of the potential harm that may be suffered by a young child as a result of separation from its mother, decided to accede to the application in the interests of justice, although it was apparent that some attention was given to this very aspect by the sentencing judge.
According to his affidavit, Mr Kovac is experiencing the kinds of difficulties which are regrettably all too commonly experienced by one parent when the other is imprisoned.
There can be, as I have indicated, no doubt that the sentencing judge was conscious of the position of the young child, as, in the absence of any submissions concerning the child's situation, he made reference to it in the course of the plea hearing. He adverted to the age of the child when handing down sentence and stated that he was taking into account "your personal circumstances".[9] The consequences for Mr Kovac and the son of the appellant were of the kind and character that might be perceived as distinctly possible and were clearly so regarded by the sentencing judge. Accordingly I am of the view that this is not a case in which the true significance of facts which existed at the time of sentencing has later emerged or in which, as a consequence of exceptional hardship, the intervention of the Court could be justified. In one sense it is simply another example of the terrible consequences which are experienced by families of persons who are sentenced to prison.
[9]Sentence T.36.
Ground 1
The argument in support of this ground rested upon the alleged errors asserted in the other grounds. As each of those grounds must fail, this ground also lacks substance.
In summary, for the reasons given, none of the grounds of appeal having succeeded in my view, I would dismiss this appeal.
BATT, J.A.:
I agree. I add only one comment, and that in relation to ground 4. The fact that his Honour concluded that some part of the aggregate term was to be actually served shows that, despite his comment in the course of argument referred to by Vincent, J.A., his Honour considered and rejected total suspension. For that reason, and the detailed reasons given by Vincent, J.A., I am of the view that this appeal must be dismissed.
EAMES, J.A.:
For the reasons given by Vincent, J.A., I agree that the appeal should be dismissed.
BATT, J.A.:
The order of the Court is that the appeal against sentence is dismissed.
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