Itaoui v Regina - [2006] NSWCCA 273

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Itaoui v Regina [2006] NSWCCA 273

FILE NUMBER(S):
2006/815

HEARING DATE(S): 28/08/06

DECISION DATE: 07/09/2006

PARTIES:
Ahmed Itaoui v Regina

JUDGMENT OF: Spigelman CJ Whealy J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3187

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
Mr D. Baran - Applicant
Ms J. Girdham - Crown/Respondent

SOLICITORS:
M. Dorrough - Applicant
S. Kavanagh (DPP) - Crown/Respondent

CATCHWORDS:
Leave to appela against severity of sentence. Guilty plea - no obligation to spell out mathematical calculation - psychiatric condition - adjustment disorder with depressive mood - not sufficient to diminish principles of general and specific deterrence - delay in sentencing - sentence not manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing & Procedure) Act 1999

DECISION:
Leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/815
SPIGELMAN CJ
WHEALY J
HOWIE J
THURSDAY 7 September 2006

Ahmed ITAOUI v REGINA

Judgment

SPIGELMAN CJ: I agree with Whealy J.
WHEALY J: On 17 May 2005 Ahmed Itaoui (“the applicant”) pleaded guilty to nine counts of obtaining a financial advantage by deception. These were charges under s 178BA of the Crimes Act 1900, each carrying a maximum penalty of five years imprisonment. The plea was dealt with by the learned sentencing judge on 12 September 2005. His Honour was also asked to take into account ten similar offences on a Form 1 and a further offence of attempting to obtain a benefit by deception.
The applicant has sought leave to appeal on seven grounds. It will be necessary to identify each of those grounds and, in discussion of those matters, to identify the reasons of the sentencing Judge in some greater detail.
The general background
It may be helpful to outline in broad terms the nature of the offences committed by the applicant. This background focuses on the applicant’s employment as a legal clerk at the offices of George Shad & Co Solicitors at Bankstown between August 2001 and October 2002. The applicant had been given employment in the middle of 1999 by Mr Shad. The applicant had been studying law part-time when he was engaged. The nature of his employment was, at first that the applicant looked after conveyancing matters from commencement until exchange of contracts. This included interviewing clients, liaising with real estate agents and ensuring that the reports in relation to the condition of the property under negotiation were satisfactory. As time passed, the applicant was given greater responsibilities. He was permitted to be involved with conveyancing matters up to completion. Mr Shad’s practice was essentially that of a conveyancer with a very considerable number of transactions flowing through his office. In the statement he provided to police, Mr Shad said that his firm settled approximately 60 conveyancing matters each week. His trust account was used extensively in the practice, with approximately sixteen to seventeen hundred trust account transaction entries in any one month.…

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 Itaoui v Regina

Details

AGLC: Itaoui v Regina [2006] NSWCCA 273
Case: [2006] NSWCCA 273
Decision Date: 7 September 2006

CaseChat Overview and Summary

The applicant, an employee of a law firm, appealed against the severity of their sentence after being found guilty of misappropriation of funds from the firm's trust account. The case was heard by the court which was required to determine the appropriate grounds for leave to appeal against the sentence. The court examined the applicant's psychiatric condition, an adjustment disorder with depressive mood, to assess whether it was sufficient to diminish the principles of general and specific deterrence. Additionally, the court considered the delay in sentencing and whether the sentence was manifestly excessive.

The court reasoned that while the applicant's psychiatric condition was acknowledged, it was not sufficient to warrant a reduction in sentence, given the gravity of the offence and the need to uphold principles of general and specific deterrence. The court also found that the delay in sentencing did not significantly impact the severity of the sentence. The court concluded that the sentence was not manifestly excessive and denied the application for leave to appeal.

The court's decision was based on a thorough examination of the applicant's psychiatric condition, the nature of the offence, and the principles of general and specific deterrence. The court found that the sentence was appropriate given the circumstances and denied the application for leave to appeal. The final orders of the court reflect this decision, upholding the original sentence imposed on the applicant.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought leave to appeal on seven grounds. It will be necessary to identify each of those grounds and, in discussion of those matters, to identify the reasons of the sentencing Judge in some greater detail.The general background It may be helpful to outline in broad terms the nature of the offences committed by the applicant. This background focuses on the applicant’s employment as a legal clerk at the offices of George Shad & Co Solicitors at Bankstown between August 2001 and October 2002. The applicant had been given employment in the middle of 1999 by Mr Shad. The applicant had been studying law part-time when he was engaged. The nature of his employment was, at first that the applicant looked after conveyancing matters from commencement until exchange of contracts. This included interviewing clients, liaising with real estate agents and ensuring that the reports in relation to the condition of the property under negotiation were satisfactory. As time passed, the applicant was given greater responsibilities. He was permitted to be involved with conveyancing matters up to completion. Mr Shad’s practice was essentially that of a conveyancer with a very considerable number of transactions flowing through his office. In the statement he provided to police, Mr Shad said that his firm settled approximately 60 conveyancing matters each week. His trust account was used extensively in the practice, with approximately sixteen to seventeen hundred trust account transaction entries in any one month. It appears that, over time, Mr Shad placed considerable reliance on the applicant and trusted him implicitly in relation to his dealings with the firm’s trust account. On 31 October 2002, Mr Garry Napper of the New South Wales Law Society carried out a random audit of the firm’s trust account. On 1 November 2002, Mr Napper told Mr Shad that he was generally satisfied with the audit of the firm’s trust account. He queried, however, one cheque drawn in favour of Marshall Motors. An examination of this brought to Mr Shad’s attention that the amounts of money involved in this particular transaction, in fact, belonged to four unrelated clients. Mr Shad said he recalled signing the cheque for Marshall Motors for an amount of $119,915. The applicant had been in charge of the conveyancing matter relating to this cheque. The cheque was drawn and signed on 4 September 2002. The applicant told Mr Shad that the cheque related to settlement monies where the client wanted the money drawn in favour of Marshall Motors. Mr Shad confronted the applicant who immediately admitted taking money from the four clients to pay $119,915 to Marshall Motors. The money had been used by the applicant to buy a Mercedes Benz Cabriolet car from Marshall Motors Pty Limited at Parramatta. The applicant admitted he had taken the money. In reference to other dealings with the trust accounts, he volunteered that there were “a lot more”. The applicant gave details of these to Mr Shad and authorised him to have access to the applicant’s personal bank account with the National Australia Bank. These banking records confirmed that, in most instances, the applicant had deposited the misappropriated trust funds straight into his account with the National Bank.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ WHEALY J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ WHEALY J

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