Roujnikov v The Queen

[2015] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0045

SERGE ROUJNIKOV	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2015
DATE OF JUDGMENT:	8 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 97
JUDGMENT APPEALED FROM:	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:

1. 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)]	10 years
3	Possessing a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 s 73]	1 year	Proven and dismissed
Total Effective Sentence:		9 months’ imprisonment together with a 5 year community correction order (300 hours)
Pre-sentence Detention Declared:		N/A
6AAA Statement:		3 years 6 months’ imprisonment with a non-parole period of 2 years
Other Relevant Orders:		§  Forensic Sample Order §  Forfeiture Order §  Disposal Order (heroin)

1. The applicant’s co-offender, Ivan Zozulya, was sentenced on the same day by the same judge as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Attempting to obtain financial advantage by deception [Crimes Act 1958 s 321M]	15 years	Aggregate 4 year community correction order (400 hours on all charges) and a $20,000 fine (on charges 1 & 2)
2	Obtaining financial advantage by deception [Crimes Act 1958 s 82(1)]	10 years
Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Summary Charges x 4	Drive whilst licence suspended [Road Safety Act 1986]	2 years or a fine of 240 penalty units
Other Relevant Orders:		§ In respect of the summary charges, licence cancelled and disqualified for 1 year § Forensic Sample Order

1. The applicant now seeks leave to appeal on the following grounds:

1.The learned sentencing judge erred in his application of the principle of parity in that he imposed a sentence on the applicant that:

(a)is markedly disparate to the sentence imposed upon the co-offender;

(b)the disparity is disproportionate to the differences in circumstances between the applicant and the co-offender; and

(c)the disparity is such that it engenders a justifiable sense of grievance in the applicant or gives the appearance in the mind of an objective observer that justice has not been done.

2.The learned sentencing judge erred in his application of s 5(4C) of the Sentencing Act 1991 (‘Sentencing Act’) in that he:

(a)attributed too much weight to the ‘breach of trust’ factor in light of the maximum penalties for the offences and the sum of money obtained;

(b)attributed too little weight to matters in mitigation including restitution, plea of guilty and steps towards rehabilitation; and

(c)undervalued the punitive effect of community correction orders (‘CCO’).

3.The learned sentencing judge erred in imposing an aggregate sentence that is manifestly excessive having regard to:

(a)proportionality;

(b)totality;

(c)the circumstances of the offending;

(d)the matters in mitigation;

(e)the maximum penalties;

(f)the sentence imposed upon the co-offender; and

(g)the 6AAA declaration.

Background facts

1. Briefly speaking, between 20 May 2013 and 17 March 2014, the applicant and his co-offender engaged in a sophisticated fraud against CGU Insurance, the applicant’s then employer.

1. Charge 1 involved an attempt to obtain a total of $98,023.31.  This was a ‘rolled-up’ charge involving two separate components.  The first concerned the creation of a false refund of $81,911 in relation to Ryan’s Staff Services (‘Ryan’s), a client of CGU.  The false refund was created by a falsely reduced premium.  The banking details of Ryan’s had been fraudulently altered so that the refund was to be sent to a false bank account.  The attempt failed because the refund was paid by a cheque sent direct to Ryan’s, rather than by way of electronic transfer.  The second concerned an attempt, using a fraudulent claim in the name of a non-existent employee of a legitimate company, and supported by three false certificates of capacity, to obtain the sum of $16,112.

1. Charge 2 was a ‘rolled-up’ charge relating to obtaining a financial advantage in the sum of $106,587.  This charge reflected a number of instances where a combination of false claims, false companies, false employees of legitimate companies, falsification of contact and banking details for legitimate companies, and false bank accounts were used to defraud CGU.  The fraud encompassed a number of deceptions including:

·the creation of false company details;

·the creation of false documents including medical statements, certificates of capacity, claim forms, and identification documents;

·the use of false documents to create bank accounts in false names;

·diversion of phone contact details; and

·the creation of false employees.

Submissions on the plea

1. The applicant came to this country from Russia when he was aged 14.  It was submitted on his behalf that he had struggled as a young man to adjust.  He had begun using marijuana at 15, and moved on to heroin at 18. 

1. At the time of the offending, the applicant was still addicted to heroin, although there had been periods of remission between the ages of 23 and 30.  A number of medical and psychological reports were tendered  on the plea, attesting to his treatment for drug addiction from about December 2012.  The applicant had presented himself to Windana (Drug Detoxification Centre) in March 2014, just prior to his arrest.  After his arrest, he had undergone counselling and detoxification, and had continued to consult with both a psychologist, and his general practitioner, regarding his drug problems.

1. It was submitted on the applicant’s behalf that he was a well-educated man, who had completed a psychology degree at Swinburne University, as well as a Masters degree in business at Deakin University.  The Masters degree had been partly funded and supported by CGU. 

1. It was acknowledged that the offending had been sophisticated, and should be viewed as serious.  On the other hand, it was submitted that the applicant had displayed remorse, both by having confessed to his crimes, and having apologised to his employer after his arrest.  Obviously, his employment at CGU was terminated.  He subsequently worked as a tiler and handyman.

1. Put simply, it was submitted that the applicant’s offending was borne out of his drug addiction.  As that addiction had spiralled out of control, the applicant had built up a large debt.  It was that debt that brought about the fraudulent conduct that gave rise to these offences.

1. It was further put on behalf of the applicant that he should be treated more leniently as a result of having pleaded guilty.  It was noted that he had the support of his family.  Full restitution had been made, half by the applicant, and half by his co-offender.  This too was said to be a significant mitigating factor.  The applicant had been forced to sell his home, and had, in effect, lost everything.

1. It was conceded that the applicant’s offending involved a gross breach of trust.  It was submitted, however, that this should not be regarded as an aggravating feature vis-à-vis Zozulya, given that each offender played a major role in the elaborate nature of the scheme. 

1. Finally, it was submitted that this was a case that warranted a non-custodial disposition, since the applicant would require monitoring and intensive support to continue on the path to rehabilitation.

1. The Crown submitted that this offending was sophisticated, carefully planned, designed to avoid detection, and took place over a lengthy period.  In these circumstances, general deterrence was the primary sentencing consideration and required, for both offenders, an immediate term of imprisonment.

1. The hearing of the plea was adjourned until after this Court delivered judgment in Boulton v The Queen.[1]  That occurred on 22 December 2014.  A further plea hearing then took place on 4 February 2015, during the course of which the implications of the Guideline Judgment were canvassed.

   [1][2014] VSCA 342 (‘Guideline Judgment’).

1. It was noted, on that day, that the Guideline Judgment made it clear that, properly constructed, CCOs are to be regarded as punitive.  It was submitted, in the light of that decision, that notwithstanding the relatively serious nature of this offending, a CCO would be an appropriate disposition in this case.

1. The applicant submitted that, to the extent that his offending was aggravated by the breach of trust involved, that factor could be given appropriate weight by imposing a longer CCO than that to be fixed for Zozulya. The applicant relied, in particular, upon s 5(4C) of the Sentencing Act which prohibits the imposition of a sentence of imprisonment unless the sentencing court concludes that the purposes of a sentence cannot be achieved by a CCO to which specified conditions are attached.

1. The Crown submitted that the gravity of the offending, and the applicant’s moral culpability, meant that nothing short of an immediate custodial term would be sufficient so far as he was concerned.  It accepted, however, that a CCO back-ended on to an appropriately lengthy term of imprisonment would be open.  It submitted that the applicant should receive a heavier sentence than Zozulya because his offending involved a breach of trust, whereas that of Zozulya did not.   

Sentencing remarks

1. The sentencing judge, correctly in our view, treated the applicant as having no prior convictions despite his having previously offended by making false documentation when he was aged just 17.  However, his Honour did observe that it could properly be said that the applicant was no stranger to making false documents, and using them. 

1. The judge accepted that there were a number of mitigating factors present.  He noted that the applicant had pleaded guilty at the earliest opportunity, and thereby saved the community the cost of what would have been a complex and lengthy trial.  He accepted that the applicant had shown remorse, and had made restitution to CGU.  He found that the applicant had done all that he could to rehabilitate himself since his arrest, that he had the support of his family, and was in gainful employment.

1. Nonetheless, his Honour recognised that the primary sentencing consideration in a case such as this had to be general deterrence.  In addition, the applicant had to be punished appropriately for his conduct and his offending denounced.  He gave careful consideration to the Guideline Judgment.

1. His Honour found that the applicant stood in a different position to Zozulya.  The applicant had exploited his position at CGU, and his offending involved a gross breach of trust.  That meant that in his case, unlike that of Zozulya, there had to be a term of immediate imprisonment.  It was in those circumstances that he imposed the aggregate sentence of 9 months’ imprisonment, followed by a 5 year CCO, upon the applicant, whereas Zozulya escaped with a 4 year CCO and a $20,000 fine. 

Conclusion

1. Dealing first with ground 1, the principles governing parity are well-established.  This Court recently dealt with this very issue in Khoa v The Queen.[2]There, the Court cited the following passage from the judgment of the plurality in the decision of the High Court in Green v The Queen: [3]

In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’ The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[4]

[2][2015] VSCA 80.

[3](2011) 244 CLR 462.

[4]Ibid 474–5 [31] (citations omitted).

1. In McCloskey-Sharp v The Queen,[5] Osborn JA, in refusing leave to appeal against sentence, formulated the relevant principle as follows:

The principle of parity is an aspect of equal justice. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a marked disparity between sentences which gives rise to a justifiable sense of grievance on an applicant’s part, the principle may be said to have been infringed.[6] No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[7] [8]

[5][2015] VSCA 87.

[6]Postiglione v The Queen (1997) 189 CLR 295, 301; Lowe v The Queen (1984) 154 CLR 606, 610, 613, 623.

[7]R v Wolfe [2008] VSCA 248, [9].

[8]McCloskey-Sharp v The Queen [2015] VSCA 87, [17].

1. The sentencing judge in this case gave considerable weight to the fact that the applicant, unlike his co-offender, was involved in a significant breach of trust.  In a case such as this, that is a factor that is capable of differentiating between a custodial sentence, and a non-custodial disposition.  It was, in our opinion, reasonably open to his Honour to view the matter in that way.

1. The fact that the applicant received an aggregate sentence of 9 months’ imprisonment, together with a 5 year CCO (300 hours), and the co-offender escaped a custodial sentence, instead being given a 4 year CCO (400 hours) and a $20,000 fine does not strike us as being in any way surprising, still less as being inappropriate.  For one thing, it may be said that the applicant’s role in the commission of these offences was more central than that of the co-offender (although we note the matter was dealt with on the plea on the basis that each was equally culpable).  For another, the obvious point should be made that the breach of trust was egregious.  It was not just a matter of stealing from an employer.  The applicant made use of skills and techniques that had been imparted to him by way of trust from his employer for the purposes of his employment.  It can properly be said, in our view, that general deterrence plays an even more important role in such cases.  The temptation to engage in conduct of that kind by persons who are in a position of trust must be met with the knowledge that there will be stern consequences if that trust is, in fact, violated.

1. Nothing in the Guideline Judgment suggests that his Honour fell into error in attaching a CCO to what we regard as a relatively modest term of imprisonment so far as the applicant was concerned.  Both the sentence that he received, and perhaps more particularly, the sentence imposed upon the co-offender, could be viewed as lenient.  We reject ground 1.

1. For essentially the same reasons, ground 2 seems to us to have little substance.  That ground is also rejected.

1. Ground 3, which asserts manifest excess, was scarcely pressed and, under some persuasion from the Court, effectively abandoned.  It is a ground that is entirely devoid of merit.  On no view could it be said that the sentence imposed upon the applicant was wholly outside the range reasonably available to the sentencing judge.

1. Accordingly, leave to appeal should be refused.

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