R v Vasil

[2000] NSWCCA 421

CITATION:	R v VASIL [2000] NSWCCA 421
FILE NUMBER(S):	CCA 60053/2000
HEARING DATE(S):	11 October 2000
JUDGMENT DATE:	11 October 2000
PARTIES :	Regina Stephen Vasil
JUDGMENT OF:	Hulme J at 1; Barr J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0616
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	Crown: P Hock Appellant: MJ Finnane QC
SOLICITORS:	Crown: SE O'Connor Appellant: Xenos Jordan
DECISION:	Leave to appeal granted; Appeal dismissed

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IN THE COURT OF
CRIMINAL APPEAL
No: 60053/00


HULME J
BARR J

Wednesday, 11 October 2000
REGINA -v- Stephen VASIL
JUDGMENT

1 HULME J: This applicant for leave to appeal appeared before Twigg DCJ on twenty-one charges under s 300(2) of the Crimes Act of using an instrument which he knew to be false with the intention of inducing another person to accept the instrument as genuine and, because of that acceptance, to do or not to do some act to that other person's or another person's prejudice. Nineteen of the instruments were bank loan applications or other bank documents. One was a birth certificate and one a driver's licence.

2    His Honour was also asked to take into account a number of offences on a Form 1. Of these:-
(i) Thirteen were offences under s 24(1) of the Financial Transaction Reports Act of opening an account with a dealer in a false name.
(ii) Two were offences under s 178BB of the Crimes Act of making a false statement with intent to obtain money.
(iii) Two were offences under s 302 of the Crimes Act of having custody of a false instrument,
and
(iv) Twenty were offences under s 300(1) of the Crimes Act of making a false instrument.

3    The penalties prescribed for each of these offences are:-
(i) Those under s 300(1) and (2): ten years.
(ii) Those under s 24(1): two years.
(iii) Those under s 178BB: five years.
(iv) Those under s 302: ten years.

4 In respect of the first charge under s 300(2) and taking into account the matters on Form 1, Twigg DCJ sentenced the applicant to six years' imprisonment consisting of a minimum term of three years from 11 January 2000 and an additional term of three years commencing 11 January 2003. In respect of the other twenty offences under s 300(2), the applicant was sentenced to a fixed term of imprisonment of two years commencing on 11 January 2000.

5    The activities of the applicant which led to the charges consisted of a systematic scheme of defrauding banks over a period from late 1996 to May 1998 when he was arrested. They included the use of false documents to establish false identities and those identities for documentation in relation to the sale and purchase of real estate, to open bank accounts and to obtain loans. In aid, false employment records were also created.

6    The loss to the banks arising out of these transactions was, in round figures, $4 million. The gain to the applicant was $1,453,254, although it would seem that in large part this was dissipated either in gambling or by remission to his former wife in Greece. Something of the order of $750,000 was able to be seized from bank accounts he controlled at about the time of his arrest but it is not clear to me whether this formed part of the $1.4 million to which I have referred.

7    On behalf of the applicant it was submitted that his Honour had imposed a sentence which was excessive and that the applicant should be re-sentenced to a term of imprisonment of three years and six months, including a non-parole period of eighteen months commencing on 11 January 2000. Included within the criticisms of his Honour's approach - and which I repeat solely for the purposes of illustration without any attempt to be comprehensive - were the following:-

"5.1 That his Honour failed in his reasons to give sufficient weight to the plea of guilty.

5.2 That his Honour, when imposing sentence failed to follow the requirements of section 5 of the Sentencing Act 1989 in that he failed first to specify a minimum term of imprisonment and then to set an additional term.

5.3 That his Honour failed to find that a substantial discount or reduction in sentence should be given to the appellant on sentence, or give reasons why such a discount ought not to be given on sentence.

5.4 The absence of the fact that no discount had been allowed for the appellant's early plea of guilty and his assistance to the authorities leads to the conclusion that no such discount has been allowed by his Honour. ( Regina v Gallagher (1991) 23 NSWLR 220 at 234C per Hunt J.)

5.5 The effect of his Honour's reasoning is that the sentence imposed on the appellant was for him to serve an additional term equivalent to 100 per cent of the minimum terms and the only reasons given for that finding are that "the special circumstances of the need for rehabilitation and counselling". (Page 19 Judgment on Sentence 11.1.00).

5.6 If it is found that by the use of the words "the prisoner is entitled to the benefit of any early plea" (p 2 Judgment on Sentence 11.1.00, emphasis added), this amounts to a reference to a discount on sentence, his Honour did not spell out the way in which it was taken into account on sentence, or, if discounted, to explain why that was so. ( Regina v Carroll (1999) NSWCCA 237 at (14) Wood CJ at CL.)

5.7 As a matter of logic, the imposition of a head sentence of 6 years for offences that carry a maximum of ten years, shows that his Honour did not give sufficient weight to the early plea of guilty nor to the fact that the appellant had no previous convictions.

5.8 It was both appropriate and desirable in the sentencing of this appellant for his Honour to provide reasons for the discount in respect of the plea of guilty and the contrition factors in favour of the appellant. This was not done. ( Regina v Gallagher .)

5.9 His Honour failed to discount the sentence by eight days after taking into account that the appellant was in custody between 22 May 1998 and 28 May 1998.

5.10 The imposition of a sentence of 60 per cent of the maximum for a first offender demonstrates that his Honour failed to give any discount for an early plea of guilty."

8    The proposition that, for the criminality with which the applicant stood charged and to which he pleaded guilty, the sentence imposed is excessive has only to be stated to be rejected. Indeed, I would place on record my own view that for criminality of the magnitude of the applicant's, yielding the benefits that it did, the sentence imposed is one which gives woefully insufficient recognition to the objects of general deterrence and retribution.

9 Section 6(3) of the Criminal Appeal Act obliges the Court to dismiss any appeal against sentence unless it is of the opinion that some other sentence whether more or less severe is warranted in law. Even if I concluded that the sentencing proceedings before his Honour had entirely miscarried and all of the criticisms of the process followed by his Honour were made out, I would not contemplate reducing downwards the applicant's sentence.

10    I would add in that regard that, of course, in respect of any particular charge, the applicant ought to be sentenced solely on the basis of the facts relevant to that charge and, in the case of the offences where the matters on the Form 1 were taken into account, those matters. That said, my remarks about not reducing downwards the applicant's sentence still apply.

11    In the circumstances, I do not regard it as necessary to waste the time of the Court in dealing individually with the criticisms - many carping and of no significance - contained in the grounds of appeal and arguments advanced in support. I propose that leave to appeal be granted but that the appeal be dismissed.

12    BARR J: The applicant systematically defrauded banks and others of about $4 million for a period of two and a half years. He personally gained the benefit of about $1.4 million of the money he tricked others into parting with. His criminality was enormous and in my opinion a minimum term of three years was entirely inadequate to cope with that criminality.

13    I agree with the reasons given by the presiding Judge. This appeal ought to be dismissed.

14    HULME J: The order of the Court is that leave to appeal be granted and the appeal is dismissed.

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