DPP v Roujnikov (Unreported, County Court of Victoria, Judge Stuart, 6 February 2015)
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CRIMINAL LAW – Sentence – One charge of obtaining financial advantage by deception ($106,587) and one charge of attempting to obtain financial advantage by deception ($98,023) – Applicant and co-offender participated in elaborate scheme to defraud applicant’s employer – Multiple instances of falsification of documents, creation of fake bank accounts and making false insurance claims over 10 month period – Total effective sentence of 9 months’ imprisonment with 5 year CCO (300 hours community work) – Co-offender received non-custodial sentence of 4 year CCO (400 hours community work) and $20,000 fine – Whether disparity in sentences gives rise to justifiable sense of grievance – Applicant’s offending involved additional element of breach of trust – Disparity between sentences appropriate – Whether sentence manifestly excessive – Both applicant’s and co-offender’s sentences lenient – Leave to appeal refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr S R Johns
Galbally & O’Bryan
For the Crown
Ms D I Piekusis
Ms V Anscombe, Acting Solicitor for Public Prosecutions
WEINBERG JA KYROU JA:
The applicant pleaded guilty in the County Court at Melbourne to one charge of attempting to obtain a financial advantage by deception, one charge of obtaining financial advantage by deception, and one charge of possession of a drug of dependence. He was sentenced on 6 February 2015 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Attempting to obtain financial advantage by deception [Crimes Act 1958 s 321M]
5 years
Aggregate sentence of 9 months imprisonment together with a 5 year community correction order (300 hours)
2
Obtaining financial advantage by deception [Crimes Act 1958 s 82(1)]
[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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AGLC
Roujnikov v The Queen [2015] VSCA 97
Case
[2015] VSCA 97
Decision Date
CaseChat Overview and Summary
In the case of Roujnikov v The Queen, the applicant, who had been convicted of obtaining financial advantage by deception and attempting to obtain financial advantage by deception, appealed against his sentence. The applicant, along with a co-offender, had engaged in a sophisticated and prolonged scheme to defraud the applicant's employer over a period of ten months, involving multiple instances of document falsification, the creation of fake bank accounts, and the making of false insurance claims. The applicant was sentenced to nine months' imprisonment, with a five-year community correction order requiring 300 hours of community work, while the co-offender received a non-custodial sentence of a four-year community correction order with 400 hours of community work and a $20,000 fine. The applicant argued that the disparity in their sentences gave rise to a justifiable sense of grievance and that his sentence was manifestly excessive.
The court considered whether the disparity between the sentences was appropriate, taking into account the additional element of breach of trust in the applicant's offending. The court held that the disparity was justified, as the applicant's involvement in the scheme was more significant and involved a higher degree of planning and execution compared to the co-offender. The court also noted that both sentences were lenient, considering the gravity and extent of the offending. The court ultimately concluded that the applicant's sentence was not manifestly excessive and denied the leave to appeal.
The court's reasoning was based on the principle that the sentence should reflect the seriousness of the offending, the degree of planning and execution, and the breach of trust involved. The court found that the applicant's sentence appropriately reflected these factors and that the disparity between the sentences was justified. The applicant's appeal against his sentence was, therefore, dismissed. The final orders of the court were that the applicant's sentence of nine months' imprisonment, with a five-year community correction order requiring 300 hours of community work, was upheld, and the leave to appeal was refused.