Baldini v Regina - [2007] NSWCCA 327

New South Wales
Court of Criminal Appeal

CITATION: Baldini v Regina [2007] NSWCCA 327

HEARING DATE(S): 21 November 2007

JUDGMENT DATE:
21 November 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 4

EX TEMPORE JUDGMENT DATE: 21 November 2007

DECISION: (i) Leave to appeal be granted. (ii) Quash the sentences imposed for counts 1, 2 and 3. (iii) Re-sentence the applicant under s 6(3) of the Criminal Appeal Act 1912 making an order under s 10A of the Crimes (Sentencing Procedure) Act 1999 on each count to the effect that the proceedings be disposed of on the basis that no other penalty be imposed. (iv) Order the release of the applicant forthwith.

CATCHWORDS: Criminal law - sentencing - accessory after the fact of fraud - pleas of guilty - assessment of objective seriousness - parity - assistance to authorities - special circumstances - no loss attributable to applicant's conduct - application of s 10A of Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes Act 1900 s 176A, s 347
Crimes (Sentencing Procedure) Act 1999 s 10A,
s 21A(2)(g), s 21A(2)(n),
Criminal Appeal Act 1912 s 6(3)

CASES CITED: Bikhit v Regina [2007] NSWCCA 202
R v Ilbay [2000] NSWCCA 251
R v Kollas & Mitchell [2002] NSWCCA 491
R v Negline NSWCCA 5 December 1990
Regina v Sukkar [2006] NSWCCA 92

PARTIES: Paul Baldini
Regina

FILE NUMBER(S): CCA 3011/2007

COUNSEL: S Hanley - Applicant
N Adams - Respondent

SOLICITORS: Watsons - Applicant
S Kavanagh Solicitor for Public Prosecutions - Repsondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0752

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

LOWER COURT DATE OF DECISION: 29 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Paul Enzo Baldini

3011/2007

McCLELLAN CJ at CL
HALL J
PRICE J
21 November 2007

Paul BALDINI v REGINA

Ex tempore Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 HALL J: I agree with Price J.

3 McCLELLAN CJ at CL: The orders proposed by Price J are the orders of the Court.

4 PRICE J: On 19 March 2007 Paul Enzo Baldini pleaded guilty in the Sydney District Court to an indictment which contained three counts of being an accessory after the fact to a serious indictable offence. The charges were brought under s 347 of the Crimes Act 1900. Pursuant to s 350 of the Crimes Act an accessory after the fact to any other serious indictable offence [other than murder] is liable to imprisonment for 5 years. The offences to which the applicant was an accessory were offences contrary to s 176A of the Crimes Act, namely a director of any body corporate or public company cheating or defrauding. Offences contrary to s 176A are punishable by imprisonment of up to 10 years and are for the purposes of s 350 a serious indictable offence.

5 The applicant asked that two offences contained on a Form 1 be taken…

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 Baldini v Regina

Details

AGLC: Baldini v Regina [2007] NSWCCA 327
Case: [2007] NSWCCA 327
Decision Date: 21 November 2007

CaseChat Overview and Summary

Baldini was sentenced in the District Court of New South Wales for being an accessory after the fact of fraud. The applicant admitted to knowing about the fraud but had not directly participated in it. The key issues for the court were to determine the appropriate sentence considering the objective seriousness of the offence, the need for parity in sentencing, the assistance provided to the authorities, and the special circumstances, including the lack of any loss attributable to the applicant's conduct. The court considered the principles set out in section 10A of the Crimes (Sentencing Procedure) Act 1999, which emphasises the objective seriousness of the offence and the need to ensure that sentences are proportionate and consistent with similar cases.

The court assessed the objective seriousness of the offence, taking into account the role of the applicant as an accessory rather than a primary perpetrator. While acknowledging the importance of the fraud, the court recognised that the applicant had not directly profited from the fraudulent scheme. The court also considered the assistance provided by the applicant to the authorities, which included cooperation and the provision of information that assisted in the investigation and prosecution of the primary offenders. Furthermore, the court noted the lack of any loss attributable to the applicant's conduct, which was a significant mitigating factor.

The court determined that while the offence was serious, the applicant's role was peripheral and the lack of direct loss mitigated the objective seriousness. The court emphasised the importance of parity in sentencing, ensuring that similar cases were treated consistently. After weighing all the factors, the court concluded that a sentence of imprisonment would be disproportionate given the applicant's limited involvement and the assistance provided to the authorities. The court ordered a fine and a supervision order as appropriate.

Orders