Caruana v The Queen - [2011] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0311

SHARON LOUISE CARUANA	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 May 2011
DATE OF JUDGMENT	12 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 180
JUDGMENT APPEALED FROM	DPP v Caruana (Unreported, County Court of Victoria, Judge Montgomery, 6 August 2010)

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CRIMINAL LAW – Sentence appeal – Appellant defrauded her employer of almost $375,000 – Sentenced to total effective sentence of three years’ imprisonment with non-parole period of 18 months – Whether sentencing judge failed to adequately take into account appellant’s diagnosed high-level neuroticism – Whether sentencing judge failed to adequately take into account delay between offending and determination of appellant’s sentence – No error demonstrated – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Galbally & O’Bryan
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

The appellant is a 36‑year‑old woman. Between 2001 and 2007, she worked in the accounts receivable department at CSL Limited (‘CSL’) and, whilst working at CSL, used her position to defraud it of almost $375,000. This resulted in her being indicted on five charges of obtaining financial advantage by deception and three charges of theft.

Between 29 May 2003 and 21 November 2007, the appellant fraudulently transferred CSL funds to three separate credit card accounts. These accounts were in the names of two of her former boyfriends and a travel agent through whom she arranged travel. The total amount transferred was $356,119.89. The appellant concealed her offending by making these transactions appear to be refunds to legitimate CSL customers. The first recipient was the appellant’s boyfriend from about 1996 to 2005. Money transferred to him was used to pay her rent and to finance the renovation of her parents’ home. The second recipient was the appellant’s boyfriend from about 2006 to 2008. Money transferred to him was used for a variety of purposes, including to pay for his living expenses and to buy things for his children. Money transferred to the travel agent was used to pay for the appellant’s travel to and from Queensland, where the second boyfriend lived, as well as a 10‑day holiday in Thailand that she took. These offences formed the substance of charges 1, 4, 5, 6 and 8.

On three separate occasions, the appellant also failed to reimburse CSL for money she had obtained through a foreign exchange account that CSL had with American Express. The total amount stolen by her in this way was $18,591.11. These thefts formed the basis of charges 2, 3 and 7.

The appellant’s offending was initially detected in late 2007 by CSL’s financial controller. She has no prior convictions, has previously been of exemplary character and, over the last 10 years or so, has acted as a carer for both of her parents. The appellant’s mother died in January 2009 and her father died in March 2010. The…

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.

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Details

AGLC: Caruana v The Queen [2011] VSCA 180
Case: [2011] VSCA 180
Decision Date: 12 May 2011

CaseChat Overview and Summary

The appellant, Caruana, appealed against her sentence for defrauding her employer of almost $375,000. The appeal was heard by the High Court of Australia. The central issue in the appeal was whether the sentencing judge failed to adequately consider the appellant's diagnosed high-level neuroticism and the significant delay between the offending and the determination of her sentence. The appellant argued that these factors warranted a lesser sentence.

The court considered the arguments put forth by the appellant regarding the impact of her neuroticism and the delay in sentencing. The court reviewed the sentencing judge's assessment of these factors and found that the judge had appropriately considered them within the broader context of the appellant's offending. The court held that the sentencing judge had not erred in failing to reduce the sentence based on these factors. The appeal was dismissed, and the original sentence was upheld.

The court confirmed that the sentencing judge had taken into account the appellant's mental health and the delay in sentencing but found these factors did not warrant a reduction in the sentence. The court also highlighted the severity of the appellant's fraudulent conduct and the need for deterrence. The High Court's decision affirmed the original sentence, which included a total effective sentence of three years’ imprisonment with a non-parole period of 18 months.

Orders