Citation: REGINA v BATTIATO [1999] NSWCCA 44 revised - 07/04/99
Court: NSW Court of Criminal Appeal (from District Court)
Date: 8 March 1999
Judge(s): Simpson J; Smart AJ
Background
The applicant was a bank employee who pleaded guilty in the District Court to nine counts of obtaining financial advantage by deception. Between July 1993 and August 1996, she used her position to alter bank accounts in ways that made funds accessible to her while delaying detection. The total amount involved was $490,000.
The applicant's conduct was driven by two overlapping motivations. She spent large sums on a partner to strengthen his dependence on her, and she also had a gambling problem, having developed an intention to replace the misappropriated funds through gambling winnings.
Graham DCJ sentenced her to four and a half years' imprisonment on each count, comprising a minimum term of two and a half years and an additional term of two years, with special circumstances found under the Sentencing Act 1989. The applicant sought leave to appeal, not on the ground of manifest excess, but on the basis that her substantial cooperation with the bank and police had not been properly recognised at sentencing.
Legal Issues
- Whether the sentencing judge erred by failing to give adequate weight to the applicant's cooperation and assistance following the discovery of the offences
- Whether fresh evidence of that cooperation, admitted without objection on appeal, provided a proper basis for resentencing
- What sentence was appropriate when all relevant matters, including the cooperation, were properly taken into account
Decision
Ground 1: Failure to recognise cooperation
The Court found that, although some evidence of the applicant's cooperation existed before the sentencing judge, it was effectively buried within a large volume of other material and no particular emphasis was placed on it. As a result, the sentencing judge made no mention of it in his remarks on sentence. Simpson J characterised this as an absence of material rather than an error by the sentencing judge, but concluded it nonetheless contributed to a result that required correction.
Additional correspondence clarifying the extent of the cooperation was admitted in the Court of Criminal Appeal without Crown objection. That correspondence confirmed the applicant had disclosed the full extent of her activities at an early stage, naming accounts and customers, which materially assisted both the bank's and police's investigations. Section 442B of the Crimes Act required such cooperation to be taken into account in sentencing.
Ground 2: Resentencing
Simpson J held that resentencing was appropriate, but observed that the original sentences were already relatively lenient given the duration and continuity of the offences and their commission from a position of trust. The subjective circumstances were also noted: the applicant had no prior criminal history, was genuinely remorseful, suffered from symptoms associated with obsessive compulsive disorder, and her family relationships had been seriously affected. The scope for reduction was therefore modest.
Smart AJ agreed that the sentencing judge had made no error on the material before him and expressed reservations about whether the appeal warranted any reduction, given the gravity of the offences. However, he ultimately agreed with Simpson J's proposed course.
Orders Made
- Leave to appeal granted
- Original sentences quashed
- Applicant resentenced on each count to a total term of four years' imprisonment, comprising a minimum term of two years and three months commencing 11 March 1998 and expiring 10 June 2000, and an additional term of one year and nine months commencing 11 June 2000 and expiring 10 March 2002
Key Takeaways
- Where a sentencing court fails to give adequate weight to an offender's cooperation with authorities, and that gap is attributable to the material not being properly placed before the court rather than a legal error, the Court of Criminal Appeal may nonetheless intervene if fresh evidence admitted on appeal establishes the cooperation's significance.
- Under section 442B of the Crimes Act, an offender's cooperation with investigating authorities is a matter that must be taken into account in sentencing, and its omission can ground a successful appeal.
- Fresh evidence admitted without objection on appeal can provide the basis for resentencing even where no identifiable error by the original sentencing judge is established.
- A reduction in sentence for cooperation may be modest where the underlying offences are serious, prolonged, and committed in breach of a position of trust, even if the offender's subjective circumstances are otherwise favourable.
- The Court confirmed that sentences already at the lenient end of the available range leave little room for further reduction, and any reduction granted in such circumstances will reflect only the discrete factor that was previously omitted.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated