Citation: REGINA v BATTIATO [1999] NSWCCA 44 revised - 07/04/99
Court: NSW Court of Criminal Appeal
Date: 8 March 1999
Judge(s): Simpson J; Smart AJ
Background
The applicant, a bank employee, pleaded guilty in the District Court to nine counts of obtaining financial advantage by deception. Between July 1993 and August 1996, she exploited her position to manipulate customer accounts so that approximately $490,000 became accessible to her, while delaying detection of the withdrawals. The funds were used to support a romantic relationship and to fund gambling activity, with the applicant intending to repay the money through gambling winnings.
Once the bank grew suspicious, the applicant sought legal advice and cooperated fully with both the bank and police. She disclosed the full extent of her conduct at an early stage, including nominating the affected accounts and customer names, which significantly assisted the subsequent investigation.
Graham DCJ sentenced her to four and a half years' imprisonment on each count, divided into a minimum term of two and a half years and an additional term of two years, after finding special circumstances under the Sentencing Act 1989. The applicant sought leave to appeal, not on the basis of manifest excess, but on the ground that the sentencing judge failed to give adequate weight to her cooperation.
Legal Issues
- Whether the sentencing judge erred by failing to give sufficient weight to the applicant's cooperation with the bank and police following discovery of the offences
- Whether additional correspondence, received without objection on appeal, established a level of cooperation that should have affected the sentence
- What sentence was appropriate once the cooperation material was properly taken into account
Decision
The Court of Criminal Appeal accepted that the sentencing judge had not in fact erred on the materials that were before him. The cooperation evidence had been effectively buried in a large volume of other material, and no emphasis had been placed on it during the sentencing hearing. As a result, Graham DCJ made no mention of it in his remarks on sentence. The error was not attributed to the judge but arose from the manner in which the case was presented below.
Fresh correspondence clarifying the extent of the applicant's assistance was admitted on appeal without objection. Simpson J was satisfied that this material demonstrated a high degree of cooperation that had materially assisted the investigation, and that the statutory obligation under section 442B of the Crimes Act to take such assistance into account had not been met in the circumstances. This created the basis for resentencing.
In determining the new sentence, the Court acknowledged that the original sentences were already relatively lenient given the duration of the offending, the breach of trust involved, and the substantial sum of money taken. Because the only relevant error was the omission of the cooperation factor, and given the overall seriousness of the offending, the reduction available was modest. Smart AJ agreed with the resentencing course, though he noted he would otherwise have dismissed the appeal having regard to the gravity of the offences.
Orders Made
- Leave to appeal granted
- Original sentences quashed
- Applicant resentenced on each count to a total term of four years, comprising:
- A minimum term of two years and three months commencing 11 March 1998 and expiring 10 June 2000
- An additional term of one year and nine months commencing 11 June 2000 and expiring 10 March 2002
Key Takeaways
- Where cooperation evidence is not given due emphasis at a sentencing hearing, it may effectively be overlooked even without any fault on the part of the sentencing judge, and this can ground an appeal.
- Under section 442B of the Crimes Act, a court is required to take into account assistance provided by an offender to investigating authorities; a failure to do so, even through procedural circumstances rather than judicial error, may warrant resentencing.
- Fresh evidence of cooperation may be admitted on appeal where the Crown raises no objection, and the Court of Criminal Appeal can then sentence afresh on the fuller picture.
- The availability of a reduction for cooperation is not unlimited. Where sentences are already at the lenient end of the range for serious, prolonged offending involving a breach of trust, any reduction attributable solely to the cooperation factor will be constrained.
- A finding that no error occurred at first instance does not preclude resentencing on appeal if additional material, properly admitted before the appellate court, establishes that a relevant sentencing factor was not adequately addressed.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW), s 5 (special circumstances)
- Crimes Act 1900 (NSW), s 442B (assistance to authorities as mitigating factor)
Cases cited: No cases were cited in the judgment text provided.