Citation: Regina v Elie Gittani [2002] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 19 April 2002
Judge(s): Ipp AJA, Sully J, Bell J
Background
The appellant was arrested at Flemington Markets in April 2001 after security officers chased and apprehended him. At the time of his arrest, he was wearing a bum bag that contained 91 counterfeit Australian $50 notes, along with $490.10 in genuine currency and a Kmart receipt bearing his wife's name and home address.
At trial in the District Court before Kinchington DCJ, the appellant gave evidence that he had found the bum bag near the car park stairs and had strapped it on while deciding what to do with it. The jury rejected that account and convicted him of knowingly possessing counterfeit money, contrary to section 9(1)(a) of the Crimes (Currency) Act 1981 (Cth). That offence carries a maximum penalty of 10 years' imprisonment and/or a $66,000 fine.
Kinchington DCJ sentenced the appellant to 2 years' imprisonment, with release after 6 months upon entering a recognisance to be of good behaviour for the remainder of the term. The appellant sought leave to appeal, contending the sentence was manifestly excessive and that a custodial term was not warranted at all.
Legal Issues
- Whether the sentencing judge erred by imposing a custodial sentence rather than a wholly suspended term
- Whether the sentencing judge failed to find hardship or give sufficient weight to the appellant's good character
- Whether the sentencing judge wrongly treated the appellant's lack of remorse as an aggravating factor
- Whether the sentencing judge erred in finding an intention to commit a more serious offence and in placing undue weight on general deterrence
- Whether there was any error of fact or law in the primary sentencing discretion that would warrant appellate intervention
Decision
Sully J (with whom Ipp AJA and Bell J agreed) began by restating the threshold for appellate intervention in sentencing matters. Before the Court of Criminal Appeal can interfere with a first-instance sentence, an applicant must demonstrate that the primary sentencing discretion miscarried through some error of fact, law, or both. Error alone is not sufficient; the Court must also be satisfied that some other sentence is "warranted in law" under section 6(3) of the Criminal Appeal Act 1912 (NSW).
Sully J rejected the submission that a sentencing judge dealing with Commonwealth offences under section 16A of the Crimes Act 1914 (Cth) is required to work through all the matters in section 16A(2) as an explicit statutory checklist. His Honour observed that such an approach would encourage artificial reasoning and technical challenges to sentences, rather than sound sentencing practice.
On the substantive grounds, the Court found no error in the sentencing judge's approach to general deterrence. Referring to English authority on counterfeit currency offences, Sully J endorsed the principle that the quantity of notes in an offender's possession indicates proximity to the source of the counterfeiting operation, and that offences of this kind will in nearly every case require a custodial sentence. The primary purpose is punishment, with significant weight also given to general deterrence as a signal to others who might seek to profit from handling counterfeit notes.
The Court found no substance in any of the individual grounds of appeal.
Orders Made
- Leave to appeal against sentence granted
- Substantive appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that appellate intervention in sentencing requires demonstrated error of fact or law in the primary sentencing discretion, and a further finding that some other sentence is warranted in law.
- A sentencing judge dealing with Commonwealth offences is not required to treat the matters listed in section 16A(2) of the Crimes Act 1914 (Cth) as a mandatory checklist, each to be explicitly addressed in reasons.
- Where a defendant is found in possession of a substantial quantity of counterfeit notes, the quantity itself is a significant indicator of the offender's proximity to the source of the counterfeiting operation, which weighs heavily in sentencing.
- Upholding the custodial sentence, the Court of Criminal Appeal affirmed that possession of counterfeit currency will ordinarily attract a term of imprisonment, with general deterrence carrying particular importance in this category of offence.
- No error was established in the sentencing judge's treatment of remorse, good character, hardship, or the principle of general deterrence, and each ground of appeal was dismissed.
Legislation and Cases Referenced
Legislation
- Crimes (Currency) Act 1981 (Cth), section 9(1)(a)
- Crimes Act 1914 (Cth), section 16A
- Criminal Appeal Act 1912 (NSW), section 6(3)
Cases
- Reg v Simpson [2001] NSWCCA 534
- The Queen v De Simoni (1981) 147 CLR 383
- Anthony Frank Howard (1985) 82 Cr App R 262
- Vachalec [1981] 1 NSWLR 351
- Visconti [1982] 2 NSWLR 104
- Astill (No. 2) (1992) 64 A Crim R 289