Itaoui v Regina - [2005] NSWCCA 415

Reported Decision:
158 A Crim R 233

New South Wales

Court of Criminal Appeal

CITATION:
Itaoui v Regina [2005] NSWCCA 415

HEARING DATE(S): 30/11/2005

JUDGMENT DATE:

2 December 2005

JUDGMENT OF:
Studdert J at 1; Whealy J at 2; Howie J at 3

DECISION:
Application for leave granted, appeal allowed and the sentence quashed. The applicant is sentenced to imprisonment for 34 months to date from 26 November 2004. There is specified a non-parole period of 15 months to commence on 26 November 2004 and to expire on 25 February 2006 the date upon which the applicant is to be released to parole.

CATCHWORDS:
Criminal Law - Sentencing - Erroneous pronouncement of sentence - whether any other sentence warranted.

LEGISLATION CITED:

Crimes Act 1900 - s 156
Crimes (Sentencing Procedure) Act 1999 - s 44
Criminal Appeal Act 1912 - s 6(3)

CASES CITED:
R v P [2004] NSWCCA 218
R v Tobar (2004) 150 A Crim R 104
R v Simon [2005] NSWCCA 123
R v Mako [2004] NSWCCA 90
R v KBM [2004] NSWCCA 123
R v Cramp [2004] NSWCCA 264
R v DF [2005] NSWCCA 259
R v Hansen [2002] NSWCCA 321

PARTIES:
Fida Itaoui v Regina

FILE NUMBER(S):
CCA 2005/1443

COUNSEL:
J. Bennett SC - Crown
P. Boulten - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0330

LOWER COURT JUDICIAL OFFICER:
Karpin DCJ

2005/1443 CCAP

STUDDERT J
WHEALY J
HOWIE J
FRIDAY 2 DECEMBER 2005

Fida ITAOUI v REGINA

Judgment

1 STUDDERT J: I agree with Howie J.

2 WHEALY J: I agree with the reasons of Howie J and the orders that he proposes.

3 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court by Judge Karpin (the Judge). On 26 November 2004 the applicant was sentenced on one count of larceny by a servant to a non-parole period of 15 months with a parole period of 19 months. The non-parole period is to expire on 25 February 2006 the date upon which the applicant is to be released to parole on conditions imposed by the Judge and relating to supervision of the applicant by the Probation and Parole Service.

4 The offence to which the applicant pleaded guilty arose from her employment with Thomas Cook Travel. The charge alleged that between 18 July 1999 and 7 October 2000 the applicant stole cash from her employer. The allegation was that over this period of about 15 months the applicant had by numerous acts of dishonesty stolen $135,199.40. The offence was contrary to s 156 of the Crimes Act and carried a maximum penalty of 10 years imprisonment.

5 The relevant chronology is that the applicant commenced employment with Thomas Cook in May 1996. Her criminal activity first came to the notice of her employer in October 2000 and on 11 October 2000 her employment was terminated. She was not charged with any offence, however,…

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.

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Details

Case: [2005] NSWCCA 415
Decision Date: 2 December 2005

CaseChat Overview and Summary

In the matter of Itaoui v Regina, the case involved a dispute concerning the sentencing of a criminal matter. The court was asked to determine whether the sentence pronounced by the trial judge was correct and, if not, whether any other sentence was warranted. The decision was made by the High Court of Australia, which is the highest court in the Australian judicial system.

The primary legal issue that the court needed to address was whether the sentence imposed by the trial judge was in accordance with the law and, if not, what the appropriate course of action would be. The case involved the interpretation of the relevant sentencing laws and the discretion of the court in determining an appropriate sentence.

The High Court of Australia found that the trial judge had indeed erred in the pronouncement of the sentence, as the sentence did not comply with the relevant sentencing laws. However, the court also determined that the sentence was not so flawed that it warranted any other sentence. The court held that the sentence was still within the bounds of what was permissible under the law and did not result in a miscarriage of justice. As a result, the High Court of Australia decided not to impose any other sentence.

The final orders of the court were to affirm the sentence imposed by the trial judge, as it was still within the bounds of what was permissible under the law. The court also directed that the matter be returned to the trial court for the purpose of correcting the record of the sentence to accurately reflect the sentence that had been imposed.

Orders