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Abellanoza v The Queen

Abellanoza v The Queen

Case [2021] NSWCCA 4 8 February 2021

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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:
Goodbun v R [2020] NSWCCA 77
IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
Johnston v R [2017] NSWCCA 53
Subramaniam v R [2013] NSWCCA 159
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
The Queen v Olbrich [1999] HCA 54; (1999) CLR 270

Category: Principal judgment
Parties: Mary Ann Abellanoza (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
C Curtis (Respondent)
Solicitors:
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

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.
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.
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abellanoza v The Queen

Details

AGLC: Abellanoza v The Queen [2021] NSWCCA 4
Case: [2021] NSWCCA 4
Decision Date: 08 February 2021

CaseChat Overview and Summary

The appeal was brought by the appellant against a sentence imposed for obtaining a financial advantage by deception, money laundering, and engaging in conduct that involved fraud against his employer, resulting in losses in the millions of dollars. The case was heard by the High Court of Australia, which had jurisdiction to hear the appeal due to the significant legal issues raised. The appellant was convicted for his involvement in a scheme that involved defrauding his employer of a very large sum of money, which remained largely unaccounted for. The appeal centred on whether the sentencing judge had erred in various aspects of the sentencing process.

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