Legal Research
Cases
De Angelis v R

De Angelis v R

Case [2015] NSWCCA 197 24 July 2015

Appeal

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: De Angelis v R [2015] NSWCCA 197
Hearing dates: 13 July 2015
Decision date: 24 July 2015
Before: Simpson JA at [1]; Button J at [70]; Fagan J at [71]
Decision:
(1) Extend the time for filing an application for leave to appeal against sentence to 17 April 2015;

(2) Grant leave to appeal against sentence;
(3) Dismiss the appeal.
Catchwords:
APPEAL - sentencing - fourteen counts of fraud as a company director, Crimes Act 1900 (NSW) s 176A - two counts of obtaining money by deception, Crimes Act 1900 (NSW) s 176BA - whether sufficient consideration of utilitarian value of guilty plea - where plea was made following a fitness for trial determination - at no point was applicant unfit to be tried or significantly impaired in his capacity to plead - plea not made at earliest opportunity
APPEAL - sentencing - manifest excess - whether applicant suffered from mental condition which warranted imposition of a lesser sentence - no evidence of a condition of sufficient severity - no causal connection between condition and offending - offending was of a deliberate and continuing nature - sentence not manifestly excessive - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 21A(2), s 44(2), s 53A
Crimes Act 1900 (NSW), s 176A, s 178BA
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Hatfield v R [2011] NSWCCA 286
House v The King [1936] HCA 40; 55 CLR 499
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Sharrouf [2009] NSWSC 1002
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: Dimitri De Angelis (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
E Balodis (Respondent)
Solicitors:
A Harmstorf (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/70664
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

1 March 2013

Before:

Cogswell DCJ

File Number(s):

2010/70664

Judgment

SIMPSON JA: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed upon him, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), on 1 March 2013, following his pleas of guilty to 16 counts of fraud offences on an indictment. (In order to do so, he needed an extension of time, which the Crown does not oppose, and which ought to be granted.) Fourteen of the counts on the indictment were of fraud as a company director, contrary to s 176A of the Crimes Act 1900 (NSW) (now repealed); each of these offences exposed the applicant to a maximum penalty of imprisonment for 10 years. The remaining two counts were of obtaining money by deception, contrary to s 178BA of the Crimes…

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 De Angelis v R

Details

AGLC: De Angelis v R [2015] NSWCCA 197
Case: [2015] NSWCCA 197
Decision Date: 24 July 2015

CaseChat Overview and Summary

In this appeal, the respondent, a company director, sought to appeal against the sentence imposed following a conviction on fourteen counts of fraud and two counts of obtaining money by deception. The appellant was sentenced to imprisonment, with an early release scheme, and ordered to pay fines and restitution. The sentence was imposed by the Supreme Court of New South Wales following a guilty plea. The appellant argued that the sentence was manifestly excessive, and that the court did not sufficiently consider the utilitarian value of his guilty plea. He also argued that the sentence should have been reduced due to a mental condition that he suffered from at the time of the offending.

The legal issues in the appeal were whether the court had considered the utilitarian value of the appellant's guilty plea, and whether the sentence was manifestly excessive. The court considered the principles of sentencing for fraud and deception, and the factors that should be considered in determining the appropriate sentence. The court also considered the impact of the appellant's guilty plea and the effect of his mental condition on his offending.

The court held that the sentence was not manifestly excessive, and that the court had considered the utilitarian value of the guilty plea. The court found that the appellant's plea was not made at the earliest opportunity, and that the appellant was not unfit to be tried or significantly impaired in his capacity to plead. The court also found that there was no evidence of a mental condition of sufficient severity to warrant a lesser sentence, and that there was no causal connection between the appellant's condition and his offending. The court held that the offending was of a deliberate and continuing nature, and that the sentence was appropriate in the circumstances.

Leave to appeal was granted, but the appeal was ultimately dismissed. The court found that the sentence was not manifestly excessive, and that the court had appropriately considered the factors relevant to sentencing. The court held that the appellant's guilty plea did not warrant a significant reduction in sentence, and that the sentence imposed was just and appropriate. The final orders of the court were that the appeal be dismissed, and that the sentence imposed by the Supreme Court of New South Wales be upheld.

Orders