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Zaia v The Queen

Zaia v The Queen

Case [2020] VSCA 9 7 February 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0189

ROBERT ZAIA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 January 2020
DATE OF JUDGMENT:	7 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 9
JUDGMENT APPEALED FROM:	DPP v Zaia (Unreported, County Court of Victoria, Judge Lacava, 16 August 2018)

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CRIMINAL LAW – Appeal – Sentence – Two charges of conspiracy to defraud – Offending involved fraudulent applications for financial facilities worth $59,072,843 – Total effective sentence of 10 years’ imprisonment with non-parole period of 7 years, 6 months – Whether sentence infringed parity principle – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Victoria Legal Aid
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Acting Solicitor for Public Prosecutions

KYROU JA
KAYE JA
McLEISH JA:

Introduction and summary

The applicant and his co-offenders, William Jordanou and Scott Arthur, conspired to fraudulently obtain loans from various financial institutions. In the period from 6 July 2007 until 17 November 2011 (‘charge 1 period’), the applicant fraudulently obtained amounts totalling $48,560,900 from Commonwealth Bank of Australia (‘CBA’). In the period from 17 September 2009 until 12 September 2013 (‘charge 2 period’), he made fraudulent applications to other financial institutions for financial facilities totalling $10,511,943.

The offenders used the accounting practice Zaia Arthur & Associates Pty Ltd (‘ZAA’) — of which they were all partners at the relevant time — as the vehicle to carry out the offending. The conspiracy involved the applicant and Jordanou applying for financial facilities on behalf of clients of ZAA and submitting false documents and information through ZAA in support of the applications. The false documents were prepared by Arthur at the direction of the applicant and Jordanou.

On 14 May 2018, the applicant pleaded guilty to the charges set out in the following table and on 16 August 2018, he was sentenced as set out in that table.[1]
[1]DPP v Zaia (Unreported, County Court of Victoria, Judge Lacava, 16 August 2018) (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Conspiracy to defraud [common law] 15 years [Crimes Act 1958 s 321C] 8 years Base

2 Conspiracy to defraud 15 years 4 years 2 years

Total effective sentence: 10 years’ imprisonment

Non parole period: 7 years, 6 months

Pre-Sentence detention declaration: 129 days

6AAA Statement: 14 years’ imprisonment, non-parole period of 10 years, 6 months

On 15 March 2017, Arthur pleaded guilty to the same charges and on 9 March 2018 he was sentenced by this Court — following his successful appeal — as set out in the following table.[2]
[2]Arthur v The Queen [2018] VSCA 58 (‘Arthur’).

Charge Offence Maximum Sentence Cumulation

1 Conspiracy to defraud 15 years 5 years,
6 months Base

2 Conspiracy to defraud 15 years 2 years 6 months

Total effective sentence: 6 years’ imprisonment

Non parole period: 4 years

6AAA…

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.

Continue reading Zaia v The Queen

Details

AGLC: Zaia v The Queen [2020] VSCA 9
Case: [2020] VSCA 9
Decision Date: 7 February 2020

CaseChat Overview and Summary

The appellant, Zaia, appealed against his sentence following his conviction for two charges of conspiracy to defraud. The offending involved fraudulent applications for financial facilities amounting to $59,072,843. The primary judge imposed a total effective sentence of 10 years’ imprisonment, with a non-parole period of 7 years, 6 months. The appellant contended that the sentence was manifestly excessive and violated the parity principle.

The appeal raised two primary legal issues. The first was whether the sentence imposed by the primary judge contravened the principle of parity, which ensures that sentences for similar offences are proportionate. The second issue was whether the sentence was manifestly excessive, meaning it was so disproportionate as to shock the conscience of the court. The appellant argued that the sentence was excessively harsh given the nature of the offending and the principles of sentencing.

The High Court examined the sentence in light of the principle of parity and the overall proportionality of the sentence. The Court considered that the sentence was not manifestly excessive or disproportionate to the offending, and it did not infringe the parity principle. The Court concluded that the primary judge had adequately considered the relevant principles and circumstances in imposing the sentence. Consequently, the Court dismissed the appeal and denied leave to appeal.

Orders