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 JRA 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…
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- AGLC
- Dela Cruz v R [2010] NSWCCA 333
- Case
- [2010] NSWCCA 333
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: SIMPSON J
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