Reported Decision : (2002) 129 A Crim R 89 New South Wales Court of Criminal Appeal CITATION : Regina v Slav Steve Gorgievski [2002] NSWCCA 45 FILE NUMBER(S) : CCA 60668/01 HEARING DATE(S) : 15 February 2002 JUDGMENT DATE : 15 February 2002 PARTIES : Regina Slav Steve Gorgievski JUDGMENT OF : Kirby J at 21; Buddin J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0081 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : PG Ingram (Crown) P Byrne SC (Applicant) SOLICITORS : SE O'Connor (Crown) Mark Klees & Associates (Applicant) CATCHWORDS : Application for leave to appeal against sentence - charges of make and use false instrument and firearms offence - discount for plea of guilty and for assistance to the authorities - "special circumstances" Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act Pearce v The Queen (1998) 194 CLR 610 R v C (1994) 75 A Crim R 309 CASES CITED: R v Carter [2001] NSWCCA 245 R v Thomson v Houlton [2000] 49 NSWLR 383 R v Richards (1981) 2 NSWLR 464 R v Simpson [2001] NSWCCA 534 DECISION : Leave to appeal granted; Appeal allowed; Sentence passed in District Court quashed; On charge of possessing loaded pistol applicant sentenced to 15 months imprisonment to commence on 21 June 2001 and to expire on 20 September 2002; on charge of using a false instrument sentence of 4 years imprisonment and non-parole period of 2 years confirmed; that sentence will commence on 20 September 2002 and expire on 19 September 2006 and non-parole period will expire on 19 September 2004. On remaining charges, fixed term of 29 months commencing on 21 June 2001 and expiring on 20 November 2003 confirmed. IN THE COURT OF CRIMINAL APPEAL 60668/01 KIRBY J BUDDIN J Friday 15 February 2002 REGINA v SLAV STEVE GORGIEVSKI Judgment 1 KIRBY J: The Court is in a position to give judgment and I ask Buddin J to give the first judgment. 2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court by Judge Gibson. The applicant had originally pleaded guilty before a Magistrate to five charges, pursuant to s 300(1) of the Crimes Act 1900, of making a false instrument with the intention of using it to induce a person to accept the instrument as genuine, and because of that, to do or not do an act to another person's prejudice. 3 He also pleaded guilty at the same time to five charges pursuant to s 300(2) of the Crimes Act 1900, of using an instrument which he knew to be false with the intention of inducing a person to accept the instrument as genuine and because of that, to do or not do an act to another person's prejudice. Twenty-one additional offences, all but one of which was laid pursuant to either s 300(1) or (2) were taken into account on a Form 1. Finally, the applicant pleaded guilty to possession of a loaded revolver, a charge brought pursuant to s 93G(1)(a)(i) of the Crimes Act 1900. The applicant adhered to each of his pleas in the District Court. The maximum penalty for each of those offences is ten years imprisonment. 4 In respect of the firearms offence, Gibson DCJ sentenced the applicant to imprisonment for a fixed term of twenty-two months to commence on 21 June 2001 and to expire on 20 April 2003. In respect of one of the matters charged pursuant to s 300(2), and after having taken into account the Form 1 matters, his Honour imposed a sentence of four years imprisonment, to commence on 20 April 2003 and to expire on 19 April 2007. A non-parole period of two years imprisonment commencing on 20 April 2003 and expiring on 19 April 2005 was fixed. In respect of the remaining nine matters brought pursuant to s 300(1) and (2) of the Crimes Act, concurrent terms of twenty-nine months were fixed. 5 The false instrument charges all involved acts of dishonesty perpetrated by the applicant and at least one other person, a John Lerovski, upon various financial institutions, namely St George Bank, Commonwealth Bank, Primary Industry Bank of Australia and Thomas Cook Financial Services. On 4 February 1999 the applicant opened an account at the Liverpool Commonwealth Bank in the name of John Oppedisano. In support of the application, the applicant produced a passport, a birth certificate and a driver's licence in the name of Mr Oppedisano. That person already held a genuine account at another branch of the bank. Later on that day a telephone funds transfer in the sum of $20,000 was made from the genuine account to the false account, after the telephone consultant who received the call had asked the caller a number of questions relating to the account, such as the name, address and date of birth of the account holder, and the last transaction on the account. Over the following month, the applicant on thirteen separate occasions used withdrawal slips at the Commonwealth Bank to withdraw a total sum in excess of $972,000 from the account opened at Liverpool. It was in relation to that matter that the applicant received the sentence to which I have earlier referred. 6 In all, approximately $2 million was obtained from the various financial institutions. None of the money has been recovered. It was when the applicant was arrested by police that the loaded revolver was found in his possession. He was later interviewed by police. During the interview the applicant admitted committing the offences and stated that he had been acting on instructions from John Lerovski. Lerovski, he said, had supplied the false identification and had dictated where and how the offences would be committed. The applicant stated that he had received $8,000 to $10,000 each time he had committed an offence. The applicant said that he had bought the revolver earlier on the evening of his arrest for $600, so as to protect himself from Lerovski, from whom he had received threats to his life. His Honour found that the applicant was a "leading player" although it was clear that in addition to Lerovski, other persons probably within the various institutions were also involved. His Honour was unable to determine exactly what benefit the applicant derived from the offences. There were no obvious trappings of a lavish lifestyle and it is likely that the applicant dissipated most of what he received on alcohol and gambling. 7 The first complaint made on behalf of the applicant relates to the first term of imprisonment imposed upon him which, as I have said earlier, was a fixed term of twenty-two months in respect of the firearm offence. His Honour said: Irrespective of how he got the gun any person armed with a loaded pistol when arrested is looking at a condign sentence and I will allow only 5% by way of discount, as it was an overwhelming Crown case. (ROS page 6) 8 The plea of guilty was entered at the first available opportunity and had, as I have noted, been preceded by admissions made by the applicant to the police in a recorded interview. It is submitted that his Honour erred in having regard to the strength of the Crown case in considering the appropriate discount to be given for the plea of guilty, and in particular, to the utilitarian benefits which flowed from the plea. The submission is supported by authority of this Court. In R v Thomson & Houlton [2000] 49 NSWLR 383 Spigelman CJ said: Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission: see R v Slater (at 525-526); Bond v The Queen (at 7); Winchester v The Queen (at 350); R v Bishop (Court of Criminal Appeal, 23 September 1996, unreported); Bulger v The Queen [1990] 2 Qd R 559 at 564. In Winchester v The Queen , Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): '... The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.' In my opinion his Honour was correct to link the question of the Crown case only to the issue of contrition or remorse. A 'recognition of the inevitable' may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea." See also R v Carter [2001] NSWCCA 245. 9 The Crown concedes that in linking the discount for the plea of guilty to the relative strength of the Crown case his Honour fell into error. However, it is submitted that given the somewhat limited extent of the utilitarian benefits to the community, a discount in the order of 20% – 25% for which the applicant contends, would not be appropriate. Rather, it is submitted that a discount in the range of 10% – 15% should be allowed. 10 The second complaint is that his Honour erred when he said that "The last two charges were committed whilst the prisoner was on bail for the earlier offences" (ROS at 8). It is a well-established principle that the commission of further offences by a person whilst on bail, particularly if the offences are of a like nature, is a matter of aggravation (see R v Richards (1981) 2 NSWLR 464). 11 It is common ground that his Honour was in error in passing the remarks to which I have just referred. As the Crown points out, it may very well be the case that his Honour was misled by the wrong dates having appeared on the relevant charge sheets. Whatever be the explanation, the fact remains that his Honour proceeded upon an erroneous basis. 12 Evidence was led from Detective Gerondis, who was one of the informants, that the applicant had been of assistance in the prosecution of Mr Lerovski. There seems to be some support for the applicant's evidence that as a consequence he had suffered injuries as a result of reprisals from Mr Lerovski or someone acting on his behalf. The applicant signed an undertaking to give evidence against Mr Lerovski in relation to various of the fraud matters, based upon material he had disclosed to the police in a statement and in records of interview. He had also offered to assist the further investigation of Mr Lerovski by agreeing to wear a listening device in order to record conversations between the two of them. Detective Gerondis declined that offer on the basis that such an undertaking was too dangerous, given Mr Lerovski's capacity for violence. 13 During the course of sentence proceedings, the Crown indicated that there were "no antecedents" in respect of the applicant. Evidence was led from the applicant that he had never been in trouble with the police. However, it then emerged that the applicant had been convicted and fined in 1995 on charges of aiding and abetting the opening of a bank account in a false name, and aiding and abetting the making of a false statement to obtain a passport. His Honour noted that those prior convictions were "germane" to the present matters, as clearly they were. His Honour rejected the applicant's explanation as to why he had misled the Court in relation to his prior convictions. It was open to his Honour to do so. 14 This turn of events prompted his Honour to say: "It is my view that from the moment he gave false evidence as to his background that any use he may have had as a Crown witness vanished, and he was of no assistance to the Crown, particularly in my view, when he only gave evidence implicating the other man in matters which he knew the police had some other material. I do not intend to allow any discount for any suggested assistance to the police or prosecution". 15 The complaint is that his Honour erred in allowing no discount whatsoever for his assistance to the authorities. S 23(1) of the Crimes (Sentencing Procedure) Act empowers a court to impose a lesser sentence than it would otherwise do on account of assistance provided to law enforcement authorities. In making such a decision a court is obliged to have regard to various considerations which are set out in subs (2). Included in the list is the usefulness of the evidence to the relevant authorities. It is also relevant to take into account any injury suffered by the offender or his family or any danger of such injury which results from that assistance (see R v C (1994) 75 A Crim R 309). The assistance to authorities to which the section refers is not confined to giving evidence in a prosecution, but extends to assistance given "in the prosecution, detection or investigation of ... the offence concerned or any other offence". 16 In all the circumstances I have concluded that notwithstanding the fact that the applicant's credit was so damaged as to make it impossible to rely upon him as a witness in any prosecution of Mr Lerovski, it was not appropriate to conclude that no discount at all would be extended to him on account of his assistance to the authorities. Having said that, only a modest discount could be contemplated. 17 The final complaint concerns the way in which his Honour approached the question of "special circumstances" in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour's approach to this aspect of the matter appears in the following passage: "Ordinarily when a person has the minor record that the accused has and the work background of the accused, coupled with the offer of work together with the fact of his age at forty-two years, and he has never been in prison before, the problems brought about by his conduct, drinking and gambling, the Court would think of finding special circumstances. However, when I consider the multiplicity of the offences ranging from October 1998 until the middle of 2000. His conduct in misleading the Court. My inability to accept the fact that he truly understands the seriousness of his actions. The large amount of money taken, none of which has been recovered and the fact that he then arms himself with a loaded pistol, I have come to the conclusion that this is not a case in which to find special circumstances ... excepting the way I will later indicate (ROS at 6-7)." 18 When his Honour came to impose sentence for the various offences, it was necessary for him to consider the question of totality, as well as the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. His Honour said, "I find special circumstances in accumulation of the sentences". The applicant submits that his Honour erred in relation to the proper test to be applied concerning the question of "special circumstances". The relevant principles were recently enunciated by this Court in R v Simpson [2001] NSWCCA 534. 19 It is apparent from the sentences which his Honour imposed that, in practical terms, an adjustment to the non-parole period, albeit modest, was in fact made to accommodate the finding of "special circumstances". In those circumstances I am not persuaded that any error has been demonstrated in respect of this aspect of the matter. 20 Having concluded that the sentencing process miscarried in a number of respects, it is then necessary to consider whether intervention by this Court is warranted. It hardly needs to be said that the various offences of which the applicant was convicted reveal very significant criminality. The fraud offences involved very large sums of money, were perpetrated over an extended period of time and were calculated in their nature. Moreover, the possession of the loaded pistol was a separate offence for which an additional penalty was, and should have been, imposed. Nevertheless, in view of the accumulation of errors in the sentencing process, I have come to the view that "some other sentence[s)]... [were] warranted in law and should have been passed": s 6(3) of the Criminal Appeal Act. I would make a finding of "special circumstances" for the same reasons as Gibson DCJ. It is not appropriate in this case to quantify the discount which is attributable to the plea of guilty to the firearm offence because that consideration overlaps with other factors such as the assistance to the authorities. Having taken into account all the relevant factors, I would propose the following orders: 1 Leave to appeal granted. 2 Appeal allowed. 3 The sentence passed in the District Court is quashed and in lieu thereof on the charge of possessing a loaded pistol, the applicant is sentenced to imprisonment for fifteen months to commence on 21 June 2001 and to expire on 20 September 2002. On the charge of using a false instrument the sentence of four years imprisonment and the non-parole period of two years is confirmed. That sentence will commence on 20 September 2002 and expire on 19 September 2006 and the non-parole period will expire on 19 September 2004. On the remaining charges, the fixed term of 29 months commencing on 21 June 2001 and expiring on 20 November 2003 are confirmed. 21 KIRBY J: I agree with the orders proposed by Buddin J and the reasons that he has provided. The orders of the Court will therefore be as proposed by Buddin J. **************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.