Brancatella v The Queen - [2016] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0039

ANTHONY VITO BRANCATELLA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP and COGHLAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2016
DATE OF JUDGMENT:	6 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 94	1^st Revision 13 July 2016; para [2] Table
JUDGMENT APPEALED FROM:	DPP v Brancatella (Unreported, County Court of Victoria, Judge Douglas, 10 February 2016)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant convicted of 62 charges of wrongful conversion and false accounts pursuant to ss 91(1)(a)(i) and 91(1)(a)(ii) of the Estate Agents Act 1980 – Total effective sentence three years and four months’ imprisonment with non-parole period of 20 months – Applicant maintained he intended to repay funds taken – 62 separate victims – Offending involved using trust monies received from clients - General deterrence, punishment and denunciation important sentencing considerations – Sentence not manifestly excessive – Application for leave to appeal refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Melasecca	Melasecca Kelly & Zayler
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP:

I agree with Coghlan JA.

COGHLAN JA:

On 1 February 2016 the applicant pleaded guilty in the County Court at Melbourne to 62 separate offences under the Estate Agents Act 1980. On 10 February 2016 he was sentenced as set out below:

Charge on
Indictment Offence Maximum Sentence Cumulation

1. Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

2. Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

3.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

4.
Estate Agent – Convert Money for Own Use [s 1(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 10 months

5.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

6.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 2 months

7.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

Charge on

Indictment
Offence Maximum Sentence Cumulation

8.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 2 months

9.
Estate Agent – Convert Money for Own Use [s 91(1)(a)(ii) Estate Agents Act 1980] 10 years [s 91(1) Estate Agents Act 1980] 8 months

10.
Estate Agent…

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 Brancatella v The Queen

Details

AGLC: Brancatella v The Queen [2016] VSCA 94
Case: [2016] VSCA 94
Decision Date: 6 May 2016

CaseChat Overview and Summary

The case of Brancatella v The Queen involved the applicant who was convicted on 62 charges of wrongful conversion and false accounts under the Estate Agents Act 1980. The applicant, who was found to have used trust monies received from clients, was sentenced to an effective term of imprisonment of three years and four months, with a non-parole period of 20 months. The applicant argued that the sentence was excessive, claiming that he intended to repay the funds taken from the 62 separate victims. The applicant sought leave to appeal against the sentence, which was subsequently refused by the court.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the applicant should be granted leave to appeal. The court considered the principles of sentencing, including general deterrence, punishment, and denunciation, in relation to the applicant's offending. The court also examined whether the sentence imposed was disproportionate to the offending and whether it failed to achieve the purposes of sentencing.

In assessing the application for leave to appeal, the court found that the sentence imposed was not manifestly excessive. The court recognised that the applicant's offending involved significant breaches of trust and had a substantial impact on multiple victims. However, the court determined that the sentence reflected the seriousness of the offending and served the purposes of general deterrence, punishment, and denunciation. The court concluded that the sentence was proportionate to the offending and did not warrant the grant of leave to appeal.

Accordingly, the application for leave to appeal was refused by the court. The court upheld the sentence imposed by the lower court and determined that it appropriately reflected the gravity of the applicant's offending. The court emphasised the importance of maintaining public confidence in the administration of justice and the need for sentences to reflect the seriousness of the offending.

Orders