Citation: Regina v Giarratano [2000] NSWCCA 418
Court: New South Wales Court of Criminal Appeal
Date: 14 February 2000
Judge(s): Sully J; Carruthers AJ
Background
The appellant was a clerk employed by a shipping company whose role included preparing cheques for payment to creditors. Over approximately 19 months between April 1994 and November 1995, he altered company cheques by adding the words "Petty Cash" after obtaining authorised signatures, then exchanged those cheques for cash at a bank. The total amount obtained was $367,000, which he used to fund a gambling addiction. The Commonwealth Bank subsequently repaid that amount to the company.
The appellant was sentenced in the Penrith District Court in July 1999 on 27 counts, including making a false instrument, using a false instrument, and stealing a valuable security under the Crimes Act 1900. A further 57 similar matters were taken into account on a Form 1 (a document listing additional offences formally acknowledged at sentencing). The sentencing judge imposed a principal sentence with a minimum term of two years and an additional term of two years, with concurrent fixed terms on the remaining counts.
The appellant sought leave to appeal against those sentences. He did not appear before the Court of Criminal Appeal, relying instead on written submissions. His grounds focused entirely on personal hardship, including the difficulty of imprisonment, his rehabilitation efforts, and separation from his wife and three young children.
Legal Issues
- Whether the sentences imposed by the District Court were affected by any legal error, including the consideration of irrelevant matters or failure to give adequate weight to relevant matters
- Whether personal hardship and subjective circumstances alone can ground a successful application for leave to appeal against sentence
Decision
The Court of Criminal Appeal found no basis on which to grant leave to appeal. Carruthers AJ reviewed the sentences imposed and noted that, far from being excessive, they sat very close to the lower end of the available discretionary range given the seriousness and duration of the offending. He observed that it was somewhat surprising the Crown had not itself appealed the leniency of the sentences.
No material was placed before the Court to suggest the sentencing judge had considered anything he should not have, or that he had failed to give appropriate weight to relevant factors. The sentencing discretion had been exercised properly on the material available.
The Court acknowledged the genuine personal hardship described by the appellant, including his separation from his young family. However, sympathy for those circumstances cannot substitute for a proper legal basis for appeal. Because the application rested purely on subjective grounds and disclosed no appellable error, it was entirely without foundation. Sully J agreed with Carruthers AJ's proposed order.
Orders Made
- Leave to appeal refused.
Key Takeaways
- An application for leave to appeal against sentence requires more than reliance on subjective personal circumstances; without an identifiable legal error in the exercise of the sentencing discretion, such an application will fail.
- Separation from family and personal hardship in custody, while acknowledged with sympathy, do not constitute sufficient grounds for the Court of Criminal Appeal to grant leave to appeal.
- No error was established in the sentencing judge's approach: the Court found he had neither considered irrelevant matters nor failed to give due weight to matters he was required to address.
- Upholding the refusal of leave, the Court noted that the original sentences were notably lenient relative to the scale and duration of the offending, involving $367,000 obtained across almost two years through systematic fraud.
- Where an appellant does not appear and relies solely on written submissions, the Court will still assess the application on its legal merits and will refuse leave where those merits are absent.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 300(1) (making a false instrument, maximum 10 years penal servitude)
- Crimes Act 1900 (NSW), s 300(2) (using a false instrument, maximum 10 years penal servitude)
- Crimes Act 1900 (NSW), s 34 (stealing a valuable security, maximum 5 years imprisonment)
Cases cited: None cited in the judgment.