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DPP (Cth) v Alateras

DPP (Cth) v Alateras

Case [2004] VSCA 214 30 November 2004

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 233 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
	Appellant
v.
ANGELO ALATERAS	Respondent

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JUDGES:	CALLAWAY, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2004
DATE OF JUDGMENT:	30 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 214	1^st Revision – 17 December 2004

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Criminal law – Sentencing – Defrauding Commonwealth Department of Social Security - $92,149.84 – Delay and other special circumstances – Nine months' imprisonment with immediate release on recognizance not manifestly inadequate – Crimes Act 1914 (Cth), s.29D – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G.J.C. Silbert	Commonwealth Director of Public Prosecutions
For the Respondent	Mr M.J. Croucher	Theo Magazis & Associates

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Nettle, J.A. I agree with his Honour that the appeal should be dismissed, but I have reached that conclusion by a more direct route.

In R. v. Osenkowski[1], in a passage which has often been cited, King, C.J. said:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”

In my opinion this was such a case. Leniency, very considerable leniency, was extended by an experienced judge in what were accepted by the Crown to be unusual circumstances.[2] There was accordingly no departure from principle or violation of sentencing standards.

EAMES, J.A.:

[1](1982) 30 S.A.S.R. 212 at 212-213.

[2]I enter this caveat: if it proves that Robin Hoods are widespread in the social security system, such leniency may not be available in future. It may have to give way to the requirements of general deterrence.

I have had the benefit of reading in draft the reasons of Nettle, J.A. and I gratefully adopt his Honour’s review of the facts and competing contentions on this appeal. Whilst I agree with his Honour that the appeal should be dismissed, I have reached that conclusion on the basis that the Director has failed to establish that the sentence imposed was manifestly inadequate.

In my view, the cases to which we were referred in which courts have made strong statements about the need for deterrent sentences in cases involving social security fraud have only limited application to this case. As Mr Silbert conceded, the

circumstances of the offending in this case were unique. The judge described it as being an exceptional case and concluded that the respondent had played the role of a “self-appointed good Samaritan”. The judge concluded that the respondent had not…

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 DPP (Cth) v Alateras

Details

AGLC: DPP (Cth) v Alateras [2004] VSCA 214
Case: [2004] VSCA 214
Decision Date: 30 November 2004

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions (Commonwealth) as the appellant against Alateras, the respondent, who was convicted of defrauding the Commonwealth Department of Social Security of $92,149.84. The dispute was heard in the High Court of Australia, which was asked to determine whether the sentence imposed on Alateras was manifestly inadequate. The appellant argued that the sentence of nine months' imprisonment with immediate release on recognizance was not sufficient given the gravity of the offence and the amount defrauded. The court was tasked with interpreting the meaning of "manifestly inadequate" under section 29D of the Crimes Act 1914 (Cth) and deciding whether the sentence imposed was within the bounds of what could be considered appropriate under the circumstances.

The legal issues before the court were the interpretation of the phrase "manifestly inadequate" in the context of sentencing and whether the sentence imposed was appropriate given the delay in the proceedings and other special circumstances. The court had to consider the principles of sentencing, the nature of the offence, the amount defrauded, and the delay in bringing the case to trial. It was necessary to determine whether the sentence was so inadequate as to shock the conscience of the community or whether it was within the range of acceptable sentences for the offence committed.

The court held that the sentence of nine months' imprisonment with immediate release on recognizance was not manifestly inadequate. It reasoned that the sentence was within the range of sentences that could be considered appropriate for the offence of defrauding the Commonwealth Department of Social Security, taking into account the delay in the proceedings and other special circumstances. The court found that the sentence imposed was not so excessive or lenient as to shock the conscience of the community and that it was within the bounds of what could be considered appropriate under the circumstances. The appeal was dismissed, affirming the lower court's decision.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the lower court. The court held that the sentence was not manifestly inadequate and was within the range of acceptable sentences for the offence committed. The delay in bringing the case to trial and other special circumstances were taken into account in determining the appropriate sentence. The respondent was required to serve the sentence imposed, which was nine months' imprisonment with immediate release on recognizance.

Orders