Paragalli v R - [2006] NSWCCA 87

CITATION: Joseph Paragalli v Regina [2006] NSWCCA 87
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 March 2006

JUDGMENT DATE:
29 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 38

DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed

LEGISLATION CITED: Bankruptcy Act 1966 (C'th)
Crimes Act 1914 (C'th)

PARTIES: Joseph Paragalli
Regina

FILE NUMBER(S): CCA 2005/2486

COUNSEL: W. J. Abraham QC - Crown
H. J. Dhanji - Applicant

SOLICITORS: Comonwealth DPP - Crown
Legal Aid Commission of NSW - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1127

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

2005/2486

McCLELLAN CJ at CL
SULLY J
HISLOP J
29 March 2006

Joseph PARAGALLI v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Sully J.

2 SULLY J: In February 2005 the applicant, Mr. Paragalli, was presented before his Honour the Chief Judge of the District Court, upon an indictment containing 4 counts. The first count charged that the applicant had carried on business without disclosing to every person with whom he dealt the fact that he was an undischarged bankrupt. The second, third and fourth charges each alleged that the applicant had obtained credit without informing the credit provider that he, the applicant, was an undischarged bankrupt. Any such offence contravenes section 269(1) of the Bankruptcy Act 1966 (C’th) and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 3 years.

3 On 22 April 2005 the applicant appeared before his Honour Judge Blackmore in the District Court at Sydney. He asked that two further matters be taken into account pursuant to the provisions in that behalf of section 16BA of the Crimes Act 1914 (C’th), and Judge Blackmore acceded to that request. Proceedings on sentence were completed and the applicant was remanded in custody until 2 May 2005.

4 On 2 May 2005 Judge Blackmore passed sentence upon the applicant. The details are:

Count 1 Imprisonment for 15 months from 22 July 2006 to 21 October 2007. This sentence takes into account the two additional offences earlier mentioned.

Count 2 Imprisonment for 12 months from 22 April 2005 to 21 April 2006.

Count 3 Imprisonment for 12 months from 22 July 2005 to 21 July 2006.

Count 4

5 His Honour made, pursuant to section 20(1)(b) of the Crimes Act 1914, an order that the applicant be released on 21 October 2006 after having served a period of imprisonment of 18 months and upon his giving security in the sum of $1,000 to be of good behaviour for 3 years.

6 His Honour made an order pursuant to section 21E of the Crimes Act 1914, but its details are of no present concern.

7 The sentence structure thus adopted entails an aggregate head sentence of 2 years…

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 Paragalli v R

Details

AGLC: Joseph Paragalli v Regina [2006] NSWCCA 87
Case: [2006] NSWCCA 87
Decision Date: 29 March 2006

CaseChat Overview and Summary

Joseph Paragalli, the appellant, appealed against his sentence on the grounds that it was manifestly excessive. The appeal was heard in the New South Wales Court of Criminal Appeal, with the Honourable McClellan CJ at CL, Sully J, and Hislop J presiding. The appellant, who was an undischarged bankrupt, had been found guilty of carrying on business without disclosing his bankruptcy status and of obtaining credit without informing credit providers of his bankruptcy. The District Court had sentenced the appellant to an effective head sentence of 2 years and 6 months, with a non-parole period of 1 year and 6 months. The appellant argued that the 3-year recognizance release order was excessive and that the non-parole period did not reflect the sentencing judge's intended variation to the customary ratio. The court dismissed the appeal against the sentence, finding that the sentence was not manifestly excessive and that the recognizance release order was not excessive.

The court found that the sentencing judge had taken a severe view of the objective criminality of the offences and had properly discounted the sentence to account for subjective matters. The court noted that the appellant had a history of dishonesty and that general deterrence was a significant factor in maintaining the integrity of the bankruptcy law. The court found that the recognizance release order was within the 5-year cap provided by the Crimes Act 1914 and that the appellant was bound to obey the law throughout the stated term. The court concluded that the sentence was appropriate in all the circumstances of the case and that the appeal against the sentence should be dismissed. Leave to appeal against the sentence was granted.

Orders