R v Zotos - [2008] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 108 of 2007

THE QUEEN
	v
SPIRO ZOTOS

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JUDGES:	REDLICH and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2008
DATE OF JUDGMENT:	22 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 82

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CRIMINAL LAW – Sentencing – Dishonesty offences – obtaining/attempting to obtain financial advantage by deception; making false documents; using false documents; possession of drug of dependence;
Error resulting from accidental transposition of sentence for different offences; consequential unlawful sentence; manifest excess in respect of sentence for possession of drug of dependence.

CRIMINAL LAW – Resentencing; relevance of quantum of loss involved in different offences; pattern of offending as an indication of potential rehabilitation; recidivism; specific and general deterrence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Haines & Polites

REDLICH JA:

The respondent acknowledged at the commencement of the appeal that there were specific errors made in the sentencing process which would necessitate the re-sentencing of the appellant. For the reasons advanced by Osborn AJA, I agree that the appeal should be allowed and the appellant re-sentenced as his Honour’s proposes.

KELLAM JA:

I have had the opportunity to read the judgment of Osborn AJA in draft and for the reasons stated therein I agree that the appellant should be resentenced as proposed by him.

OSBORN AJA:

On 17 April 2007 the appellant was arraigned before the County Court at Melbourne on four counts of obtaining financial advantage by deception, one count of attempting to obtain financial advantage by deception, two counts of using false documents, two counts of making false documents and two counts of possessing a drug of dependence.

He pleaded guilty to each count and was sentenced on 20 April 2007 to a total effective sentence of 52 months’ imprisonment with a minimum of 34 months before becoming eligible for parole.

The appellant was also charged with two summary offences namely, possession of a regulated weapon and engaging in the business of a crowd controller without holding a licence. He pleaded guilty to the summary offences and was fined $1,000 on each.

He now appeals against the Court’s sentence other than that imposed with respect to the summary offences.

The circumstances associated with the offences were as follows. The first count arises out of an application made by the appellant in the name of Christopher Zotos, to obtain an American Express Gold credit card, in support of which he provided fraudulent information. In particular, he stated that he owned residential premises in Northcote, was employed as a manager at Bar 148 in Morwell and had been so employed for three and a half years. He also stated that his gross annual salary was $72,000. Each of these claims was untrue.

On the basis of that application, American Express issued the appellant with a credit card which was used from 3 December 2002…

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: [2008] VSCA 82
Decision Date: 22 May 2008

CaseChat Overview and Summary

The appellant, Zotos, was convicted of multiple offences including obtaining or attempting to obtain a financial advantage by deception, making and using false documents, and possession of a drug of dependence. He was sentenced to imprisonment by the Supreme Court of Victoria. Zotos appealed his sentence, arguing it was manifestly excessive in relation to the drug possession charge. The appeal was heard by the Court of Appeal.

The key issues before the court were whether the sentence imposed was manifestly excessive, particularly in respect of the drug possession charge, and if so, what the appropriate remedy would be. The court had to consider the principles of sentencing, including the need for specific and general deterrence, the gravity of the offences, and the appellant's pattern of offending and potential for rehabilitation. The court also needed to determine if the original sentence was unlawful due to a transposition error and whether the sentence was disproportionate to the loss caused by the various offences.

The Court of Appeal found that the sentence was indeed unlawful due to the transposition error, which resulted in an accidental increase in the sentence for the drug possession charge. The court noted that the original sentence was manifestly excessive in relation to this charge, and it did not take into account the relatively small loss involved. The court also considered the appellant's pattern of offending and potential for rehabilitation, but ultimately found that the gravity of the offences warranted a custodial sentence. The appeal was allowed, and the matter was remitted to the Supreme Court for resentencing.

The Court of Appeal ordered that the sentence for the drug possession charge be reduced to reflect the correct penalty for that offence. The court emphasised that the resentencing should take into account the quantum of loss involved in the various offences, the appellant's pattern of offending, and the need for specific and general deterrence. The court did not specify the new sentence but left it to the Supreme Court to determine an appropriate term within the legal framework.

Orders