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Court of Criminal Appeal 2 December 2005

Itaoui v Regina

[2005] NSWCCA 415

Also reported as 158 A Crim R 233
Fraud & dishonesty
CRIMINAL LAW SENTENCING ERRONEOUS PRONOUNCEMENT OF SENTENCE WHETHER ANY OTHER SENTENCE WARRANTED.

Citation: Itaoui v Regina [2005] NSWCCA 415
Court: New South Wales Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Studdert J, Whealy J, Howie J

Background

The appellant had pleaded guilty in the District Court to one count of larceny by a servant under s 156 of the Crimes Act 1900. Over approximately 15 months while employed at Thomas Cook Travel, she stole $135,199.40 from her employer through a sustained and sophisticated series of fraudulent acts, including false electronic transfers, delayed receipt entries, and false authorisation numbers for cash advances on her own credit card.

The District Court sentenced her to a non-parole period of 15 months commencing 26 November 2004, with a balance of term of 19 months. She sought leave to appeal, arguing that the sentencing judge had misapplied the statutory sentencing provisions, failed to give adequate weight to her psychiatric condition, and failed to properly account for the delay between the offending and the laying of charges.

  • Whether the sentencing judge misapplied s 44 of the Crimes (Sentencing Procedure) Act 1999 in the way sentence was pronounced
  • Whether the sentencing judge gave insufficient weight to the appellant's psychiatric and physical condition at the time of offending and sentencing
  • Whether the sentencing judge failed to give sufficient weight to the delay of nearly two years between the commission of the offence and the laying of charges
  • Whether any different sentence was warranted under s 6(3) of the Criminal Appeal Act 1912

Decision

On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had erred in pronouncing sentence. The judge had expressed the sentence in terms of a non-parole period and a separate balance of term, rather than pronouncing a total head sentence from which the non-parole period is then specified. This reflected a transitional confusion following amendments to s 44 of the Crimes (Sentencing Procedure) Act 1999, but it constituted an error in form. The correct approach was to impose a total term of imprisonment and then specify the non-parole period within it.

On the psychiatric condition ground, the Court found no error warranting appellate intervention. The sentencing judge had taken the appellant's physical and mental health into account in adjusting the ratio between the non-parole period and the parole period, and had also factored her condition into the discount for the guilty plea. Although the Court noted the judge's method of adjusting the plea discount by reference to mental state was not strictly correct in principle (since utilitarian value of a plea is unaffected by personal circumstances), that error operated in the appellant's favour.

On the delay ground, the Court was similarly unpersuaded. The sentencing judge had expressly acknowledged the nearly two-year delay between offending and charge and directed it to be taken into account in the appellant's favour. No error was established in the treatment of that factor.

Despite identifying the formal error in how sentence was pronounced, the Court was not satisfied that any different sentence was warranted. The total effective sentence remained the same: 34 months imprisonment with a non-parole period of 15 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed and re-pronounced as: imprisonment for 34 months, to date from 26 November 2004, with a non-parole period of 15 months commencing 26 November 2004 and expiring 25 February 2006, the date of release to parole

Key Takeaways

  • An erroneous pronouncement of sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999, specifically stating a non-parole period and a balance of term rather than a total head sentence, constitutes a legal error sufficient to warrant the sentence being quashed and re-pronounced, even where the effective outcome is unchanged.
  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea is determined by timing and practical benefit, not by the offender's personal or psychiatric circumstances at the time of sentencing.
  • Where a sentencing judge expressly acknowledges a mitigating factor, such as pre-charge delay, and directs it to operate in the offender's favour, no error arises merely because the weight given to that factor is disputed on appeal.
  • Sufficient adjustment for an offender's psychiatric condition may be made through alterations to the ratio of non-parole period to parole period, rather than necessarily reducing the head sentence.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will not impose a different sentence on appeal simply because a formal error has been identified: the question is whether a different sentence is warranted in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 156
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v P [2004] NSWCCA 218
- R v Tobar (2004) 150 A Crim R 104
- R v Simon [2005] NSWCCA 123
- R v Mako [2004] NSWCCA 90
- R v KBM [2004] NSWCCA 123
- R v Cramp [2004] NSWCCA 264
- R v DF [2005] NSWCCA 259
- R v Hansen [2002] NSWCCA 321