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Court of Criminal Appeal 9 August 2000

R v Aliperti

[2000] NSWCCA 315

Fraud & dishonesty
CRIMINAL LAW SENTENCE DELAY BEFORE SENTENCING

Citation: R v Aliperti [2000] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 9 August 2000
Judge(s): James J; Dowd J

Background

The applicant, a solicitor, was convicted by jury of one charge of dishonestly obtaining a valuable thing by deception under s 178BA of the Crimes Act. The sentencing judge also took into account seven further offences, comprising six similar deception offences and one offence of fraudulently failing to account.

The offences involved the applicant deceiving clients into handing over funds for purported loans to other clients. In reality, those other clients were unaware of the transactions and, in at least one instance, a signature on a loan agreement had been forged. The funds, totalling approximately $400,000 across all matters, were instead used to pay the applicant's own creditors.

The District Court sentenced the applicant to the maximum five-year term, with a minimum term of three years and nine months. The applicant sought leave to appeal, arguing specific errors in sentencing and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by accepting an unproven assertion from the Crown about the total amount dishonestly obtained (approximately $1.4 million, sourced from Law Society Fidelity Fund records), which included alleged offences beyond those being sentenced
  • Whether the sentencing judge erred in describing the deceptions as occurring over "a considerable period of time" when they spanned only approximately four months
  • Whether the sentencing judge erred in failing to address the question of alternatives to full-time imprisonment
  • Whether the sentencing judge erred by failing to give weight to the significant delay between the offences coming to the attention of authorities and the date of sentencing, a period of approximately seven years

Decision

The Court dismissed most of the applicant's specific grounds of appeal. On the $1.4 million figure, the Court acknowledged that aggravating circumstances must be proved beyond reasonable doubt and that the sentencing judge should not have had regard to alleged offending beyond the matters being sentenced. However, the only factual finding actually recorded in the sentencing remarks was that "substantial sums of money" were involved, which was well supported by the $400,000 total across the proven matters. No error was established on that ground.

The Court also rejected the submission about the description of the period of offending. While the deceptions did not span years, the Court accepted that the word "considerable" carries no precise meaning and that several months of continued dishonest conduct warranted the description. The absence of any reference to repayment in the sentencing remarks did not amount to an error, and the Court found that full-time imprisonment was plainly required, a concession made expressly by the applicant's own counsel below.

The ground that succeeded concerned delay. The offences were committed in 1992, came to the attention of authorities in 1993, and sentencing did not occur until December 1999. The Court found that approximately seven years of proceedings hanging over the applicant was a relevant mitigating factor that the sentencing judge plainly failed to address. The absence of any mention of delay in the sentencing remarks was sufficient to establish that the sentencing discretion had miscarried.

The Court of Criminal Appeal re-sentenced the applicant to four years' imprisonment with a non-parole period of three years, commencing 5 November 1999. James J noted the objective seriousness of the offences, the significant breach of trust by a solicitor, and the Court of Criminal Appeal's consistent approach that severe sentences are warranted in such cases, but found that a reduction from the maximum was appropriate once delay was brought into account.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence set aside
  • Applicant re-sentenced to four years' imprisonment, commencing 5 November 1999, with a non-parole period of three years
  • Earliest eligible parole date: 5 November 2002

Key Takeaways

  • Significant delay between an offence coming to authorities' attention and the date of sentencing is a relevant mitigating consideration, and a sentencing judge's failure to address it may cause the sentencing discretion to miscarry.
  • A sentencing court's reliance on an unproven figure from the Crown about total loss does not automatically constitute error where the judge's recorded findings are confined to conclusions properly supported by the evidence before the court.
  • Describing a period of dishonest conduct spanning several months as "considerable" is not an error; the word does not carry a fixed or precise meaning.
  • Where a sentencing court imposes a maximum sentence for a solicitor's dishonesty offences involving breach of client trust, failure to account for a substantial delay in proceedings may warrant a reduction from that maximum on appeal.
  • The Court of Criminal Appeal confirmed that solicitors who commit dishonesty offences in breach of the trust placed in them by clients can expect severe custodial sentences, consistent with established appellate authority on such matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178A, 178BA
- Criminal Procedure Act 1986 (NSW), s 21
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: No specific cases were cited in the text provided.