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Dela Cruz v R

Dela Cruz v R

Case [2010] NSWCCA 333 30 November 2010

Obtaining Financial Advantage by Deception

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Dela Cruz v R [2010] NSWCCA 333

FILE NUMBER(S):
2009/149201
2009/149414

HEARING DATE(S):
30 November 2010

EX TEMPORE DATE:
30 November 2010

PARTIES:
Amie Dela Cruz (Applicant)
Regina (Respondent)

JUDGMENT OF:
Simpson J Blanch J Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/11/0819

LOWER COURT JUDICIAL OFFICER:
Knox DCJ

LOWER COURT DATE OF DECISION:
10 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
R v Amie Dela Cruz

COUNSEL:
D O'Neil (Applicant)
V Lydiard (Respondent)

SOLICITORS:
S O'Connor, Legal Aid Commission
S Kavanagh, Solicitor for Public Prosecutions

CATCHWORDS:
CRIMINAL LAW
obtaining financial advantage by deception
breach of trust
money laundering offence charged additionally to principal offence
no additional criminality
sentence to be concurrent not cumulative

LEGISLATION CITED:
Crimes Act 1900, s178BA(1), s193B(2)
Criminal Code (Cth), s400.4(1)
Criminal Appeal Act 1912, s6(3)

CASES CITED:
R v George NSWCCA (unreported) 23 September 1994
R v Hare [2007] NSWCCA 303
R v Itaoui [2006] NSWCCA 273
Nahlous v R [2010] NSWCCA 58
Pearce v The Queen (2998) 194 CLR 610
R v Prasad 2 A Crim R 45
Schembri v Regina [2010] NSWCCA 149
R v Strano [2002] NSWCCA 531
Thorn v The Queen [2009] NSWCCA 294
R v Trim [2002] NSWCCA 82
R v Tripodina 35 A Crim R 183

TEXTS CITED:

DECISION:
(1) Leave to appeal be granted;
(2) In relation to the first count under s178BA that the sentence of a non-parole period of 2 years to commence 8 April, 2009 and to expire on 7 April, 2011 with an additional term of 1 year to expire 7 April, 2012 be confirmed;
(3) The sentence in respect of the second charge under s178BA of imprisonment of a non-parole period of 2 years commencing 8 April, 2011 and expiring on 7 April, 2013 with an additional term of 1 year to expire on 7 April, 2014 be confirmed;
(4) The sentence imposed on the count under s193B(2) of the Crimes Act be quashed and instead and taking into account the matters on the Form 1, sentenced to imprisonment for a period of 14 months from 8 February, 2012 and a balance of term of 2 years. The total sentence would be a non-parole period of 4 years from 8 April, 2009 with a balance of term of 2 years and she would be eligible for release to parole on 7 April, 2013. Since that last sentence is under 3 years I direct she be released to parole on 7 April, 2013.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 2009/149201
CCA 2009/149414

SIMPSON J
BLANCH J
RA HULME J

30 November, 2010

Amie DELA CRUZ v Regina

JUDGMENT

SIMPSON J: I agree with the orders of Blanch J.
BLANCH J: The applicant appeared before the District Court and on 10 December, 2009 she was sentenced as follows:
1. On a charge of obtaining a financial advantage by deception on 24 May, 2007 to imprisonment for a non-parole period of 2…

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 Dela Cruz v R

Details

AGLC: Dela Cruz v R [2010] NSWCCA 333
Case: [2010] NSWCCA 333
Decision Date: 30 November 2010

CaseChat Overview and Summary

Dela Cruz was charged with obtaining financial advantage by deception and breaching trust. In addition, a money laundering offence was also charged in relation to the same conduct. The case was heard by the Court of Appeal. The primary issue for the Court was whether the money laundering charge should be considered a separate offence or an additional charge for the same conduct, and whether it should be concurrent or cumulative with the sentence for the primary offence. The Court also had to consider whether the money laundering charge involved any additional criminality beyond that already encompassed by the principal offence.

The Court noted that the money laundering offence was an additional charge in relation to the same conduct as the principal offence. However, the Court found that there was no additional criminality involved in the money laundering charge beyond that already encompassed by the principal offence. The Court held that the sentence for the money laundering offence should be concurrent with the sentence for the principal offence, not cumulative. This is because the money laundering charge did not involve any additional criminality beyond that already encompassed by the principal offence. The Court emphasised the importance of ensuring that the sentence is not disproportionate to the offence committed.

The Court of Appeal allowed the appeal and ordered that the sentence for the money laundering offence be concurrent with the sentence for the principal offence. The Court held that the sentence should not be cumulative, as this would result in an excessive punishment for the same conduct. The Court emphasised the importance of ensuring that the sentence is proportionate to the offence committed and does not involve double punishment for the same conduct. The Court also noted that the sentence should reflect the totality of the offender's conduct, and not just the individual offences charged.

Orders