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Gianello v The Queen

Gianello v The Queen

Case [2015] VSCA 205 5 August 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0266
ROBERT GIANELLO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2015
DATE OF JUDGMENT:	5 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 205
JUDGMENT APPEALED FROM:	DPP v Gianello (Unreported, County Court of Victoria, Judge Hampel, 7 November 2014)

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CRIMINAL LAW – Sentence – Appeal – 'White collar' offender – Multiple counts of dishonestly obtaining a financial advantage by deception – Parity – Whether principles of parity infringed – Whether judge erred in rejecting community correction order as an appropriate sentencing option – Serious offending – Community correction order not appropriate – Principles of parity not infringed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr K McDonald	Lawcorp Lawyers
For the Respondent	Mr J Dickie	Commonwealth Director of Public Prosecutions

WHELAN JA:

I invite Justice Beach to deliver the first judgment.

BEACH JA:

Introduction

On 7 November 2014, following a plea hearing conducted over five days in the County Court in August, October and November 2014, the appellant and two other offenders, Esra Ogru and Woei-Jia Jiang were sentenced for their roles in misappropriating funds from Phosphagenics Ltd (‘POH’) a publicly listed biotechnology company, and its wholly owned subsidiary, Vital Health Sciences Ltd (‘VHS’). The appellant was sentenced as follows:

Charge Offence Period of charge Amount obtained Maximum Penalty Sentence Imposed

1 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 29 November 2004 to 8 April 2008 $1,087,812 20 years’ imprisonment 2 years (cumulative upon the sentence for charge 2)

2 Dishonestly Obtain a Financial Advantage by Deception contrary to s 82(1) of the Crimes Act 1958 19 June 2008 to 8 July 2010 $1,331,495 20 years’ imprisonment 2 years (Base)

3 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 9 July 2010 to 20 August 2012 $2,216,610 20 years’ imprisonment 2 years (concurrent with charges 1 and 2)

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years

Pre-sentence detention declared: Nil

6AAA Statement: 6 years’ imprisonment with a non-parole period of 3 years

Sentenced as a continuing criminal enterprise offender in respect of each charge.

Ogru, who had been charged on a different indictment from the appellant, was sentenced as follows:

Charge Offence Period of charge Amount obtained Maximum Penalty Sentence Imposed

1 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 1 July 2004 to 8 April 2008 $1,087,812 20 years’ imprisonment 2 years (cumulative upon the sentence for charge 2)

2 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 19 June 2008 to 8 July 2010 $1,331,495 20 years’ imprisonment 2 years 6 months
(Base)

3 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 9 July 2010 to 15 May 2013.

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 Gianello v The Queen

Details

AGLC: Gianello v The Queen [2015] VSCA 205
Case: [2015] VSCA 205
Decision Date: 5 August 2015

CaseChat Overview and Summary

In the matter of Gianello v The Queen, the appellant, Gianello, contested the severity of the sentence imposed on him by the trial court, which had convicted him of multiple counts of dishonestly obtaining a financial advantage by deception. The case was brought to the court of appeal, where Gianello argued that the trial judge had erred in rejecting the imposition of a community correction order, asserting that such an order would have been an appropriate sentencing option. Gianello also contended that the principles of parity, which aim to ensure that similar offences are treated similarly, had been infringed by the trial judge’s decision.

The primary legal issues before the court of appeal were whether the trial judge had erred in rejecting a community correction order and whether the principles of parity had been infringed in the sentencing process. The court had to consider the nature and seriousness of Gianello’s offending, the appropriateness of a community correction order, and the overarching need to ensure that similar offences are treated consistently.

The court of appeal examined the trial judge’s reasoning and the principles of sentencing relevant to the case. It found that the trial judge had not erred in rejecting a community correction order, given the seriousness of Gianello’s offending and the need to maintain public confidence in the criminal justice system. The court also determined that the principles of parity had not been infringed, as the sentence imposed was consistent with those imposed in similar cases. Consequently, the appeal was dismissed, affirming the trial court's sentencing decision.

Orders