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Bellizia v The Queen

Bellizia v The Queen

Case [2016] VSCA 21 29 February 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0184

MICHELLE BELLIZIA

THE QUEEN

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JUDGES:	WHELAN AND SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2016
DATE OF JUDGMENT:	29 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 21
JUDGMENT APPEALED FROM:	DPP v Bellizia (Unreported, County Court of Victoria, Campton J, 10 March 2015)

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CRIMINAL LAW – Sentence – Rolled-up charges of theft spanning 131 offences – Applicant stole money from her employers – Total effective sentence of 15 months’ imprisonment with a community correction order for 12 months – Outstanding subsequent offending in New South Wales by applicant of similar nature – Subsequent offending unproven but admitted by applicant at the plea hearing – Whether judge erred in assessing remorse, general and specific deterrence having regard to subsequent offending – No error in sentencing judge’s approach – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Peter Monagle Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MICHELLE BELLIZIA v THE QUEEN

WHELAN JA:

I have read in draft the reasons of Santamaria JA. I agree that the application should be dismissed for the reasons he gives.

SANTAMARIA JA:

Overview

On 18 February 2015, the applicant (now aged 47), pleaded guilty to three rolled-up charges of theft spanning 131 offences committed over the period November 2011 to September 2013. Following a plea on 18 February 2015, the applicant was sentenced on 10 March 2015 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Theft [Crimes Act 1958 s 74]	10 years’ imprisonment	Aggregate sentence: 15 months’ imprisonment with a Community Correction Order (‘CCO’) for 12 months	N/A
2	Theft [Crimes Act 1958 s 74]	10 years’ imprisonment	Aggregate sentence: 15 months’ imprisonment with a CCO for 12 months	N/A
3	Theft [Crimes Act 1958 s 74]	10 years’ imprisonment	Aggregate sentence: 15 months’ imprisonment with a CCO for 12 months	N/A
Total Effective Sentence:		15 months’ imprisonment with a CCO for 12 months.
Pre-sentence Detention Declared:		20 days
6AAA Statement:		4 years’ imprisonment with a non-parole period of 3 years.

Grounds of appeal

The applicant seeks leave to appeal her sentence[1] on the following ground:
[1]DPP v Bellizia (Unreported, County Court of Victoria, Campton J, 10 March 2015) (‘Sentence’). The appeal was filed out of time. An extension of time within which to file an appeal was granted on 13 October 2015.

The sentencing judge erred in having regard to unproven subsequent offending when assessing:

(a) The weight to be placed on general and specific deterrence; and

(b) The applicant’s level of remorse.

Circumstances of the offending

CW Technology thefts: 28 November 2011–30 April 2012 (charge 1)

At the time of the offending, the applicant was employed by CW Technology Pty Ltd (‘CW Technology’) as an account manager. The applicant commenced her employment on 21 July 2009. Her duties included the preparation of financial documents, including…

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 Bellizia v The Queen

Details

AGLC: Bellizia v The Queen [2016] VSCA 21
Case: [2016] VSCA 21
Decision Date: 29 February 2016

CaseChat Overview and Summary

The applicant, Bellizia, was convicted of 131 offences of theft from her employers and was sentenced to 15 months’ imprisonment and a 12-month community correction order. The matter came before the court for an application to appeal against the sentence. The central issue before the court was whether the sentencing judge erred in assessing the applicant’s remorse, general and specific deterrence, particularly given the applicant's subsequent offending in New South Wales of a similar nature. The applicant contended that the sentencing judge had given insufficient weight to her remorse and the deterrence effect of the sentence.

The court found that the sentencing judge had appropriately considered the applicant's remorse and the deterrence effect of the sentence, including the subsequent offending. The judge had taken into account the seriousness of the applicant's offending and the need for general deterrence. The court held that the sentencing judge's approach in assessing the appropriate sentence was not in error. The court further held that the subsequent offending, while unproven, was admitted by the applicant at the plea hearing and was properly considered by the sentencing judge in assessing the appropriate sentence.

The applicant’s application for leave to appeal was dismissed. The court found no error in the sentencing judge’s approach and confirmed that the sentence imposed was appropriate in all the circumstances. The court upheld the original sentence and rejected the applicant’s contentions regarding the assessment of remorse and deterrence.

Orders