Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Abellanoza v R [2021] NSWCCA 4 Hearing dates: 5 August 2020 Decision date: 08 February 2021 Before: Meagher JA at [1];
Fullerton J at [4];
Button J at [39]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.Catchwords: CRIME — appeal against sentence — dishonestly obtain financial advantage by deception — money laundering — ongoing fraud of employer leading to loss in the millions of dollars — very large sum unaccounted for — aggravating and mitigating features — moral culpability as relevant factor on sentence — whether sentencing judge erred by failing to find offences motivated by gambling — whether error with regard to asserted nexus between mental conditions and offending — onuses of proof on sentence — sentence assertedly manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2), 193B(1)
Cases Cited: IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
Subramaniam v R [2013] NSWCCA 159
Category: Principal judgment Parties: Mary Ann Abellanoza (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
R Rodger (Applicant)
C Curtis (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/297610 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 05 November 2019
- Before:
- Culver DCJ
- File Number(s):
- 2018/297610
Judgment
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MEAGHER JA: I agree for the reasons given by Button J that whilst leave to appeal should be granted, Ms Abellanoza’s appeal against sentence must be dismissed. The applicant was sentenced for offences relating to the misappropriation of $3.7 million from her employer, Silver Sea Cruises, over a period of four years in which she held the position of Branch Accounting Supervisor in its Sydney office.
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Addressing the issue of her moral culpability, the applicant’s case was that she was motivated by a combination of factors, being disgruntlement in her employment, a gambling addiction, and a desire for additional funds to send to the Philippines and to spend on personal items and family holidays.
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The sentencing judge was not required to make a finding to the criminal standard as to the applicant’s motivation for her offending being one or more of those three factors. Nor did her Honour do so. That was wholly explicable in circumstances where it was common ground that $2.6 or $2.7 million of the misappropriated funds remained unaccounted for. In that context, the sentencing judge considered the question of moral culpability and was not satisfied that the offending resulted from a gambling addiction or that the psychological conditions described by Mr Borkowski were significantly causative of the offending. Neither of these conclusions is shown to have involved error, particularly when regard is had to the objective features of the offending – the period over which it occurred,…
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- AGLC
- Abellanoza v The Queen [2021] NSWCCA 4
- Case
- [2021] NSWCCA 4
- Decision Date
CaseChat Overview and Summary
The key legal issues were whether the sentencing judge had erred by not finding that the offences were motivated by gambling, whether there was an error regarding the asserted nexus between the appellant's mental conditions and his offending behaviour, and whether the onuses of proof on sentence were correctly applied. Additionally, the appellant argued that the sentence was manifestly excessive and that the judge had failed to adequately consider mitigating factors.
The court found that the sentencing judge had not erred in concluding that the offences were not motivated by gambling, as the evidence did not support this assertion. The judge's assessment of the nexus between the appellant's mental conditions and his offending behaviour was also found to be correct, as the evidence did not establish a clear link. The court held that the onuses of proof on sentence were correctly applied, and that the sentence was not manifestly excessive, as it was within the range of appropriate sentences for the crimes committed. The court found that the sentencing judge had adequately considered the mitigating factors, including the appellant's moral culpability, in arriving at the sentence.
The High Court dismissed the appeal, upholding the sentence imposed by the lower court. The court found no errors in the sentencing process and confirmed that the sentence was appropriate given the nature and circumstances of the offences.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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