R v Aliperti - [2000] NSWCCA 315

CITATION: R v Aliperti [2000] NSWCCA 315

FILE NUMBER(S): CCA 60820/99

HEARING DATE(S): 09/08/2000

JUDGMENT DATE:
9 August 2000

PARTIES :

Regina v Joseph Aliperti

JUDGMENT OF: James J at 1; Dowd J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/11/1253

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : M C Ramage QC - Applicant
A M Blackmore - Crown

SOLICITORS: Penhall and Co - Applicant
S E O'Connor - Crown

CATCHWORDS: Criminal law - sentence - delay before sentencing

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60820/99

JAMES J
DOWD J

Wednesday 9 August 2000

REGINA v JOSEPH ALIPERTI

JUDGMENT

1 JAMES J: Joseph Aliperti has applied for leave to appeal against the sentence imposed on him in the District Court on 3 December 1999 by his Honour Judge Shadbolt, after the applicant had been found guilty by a jury of one charge of dishonestly obtaining a valuable thing by deception, an offence under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years.
2 Judge Shadbolt took into account in sentencing the applicant seven other offences, consisting of six offences under s 178BA and one offence of fraudulently omitting to account, an offence under s 178A of the Crimes Act.
3   Judge Shadbolt sentenced the applicant to a term of imprisonment for five years, consisting of a minimum term of three years nine months and an additional term of one year three months.
4   The objective facts of the offence can be briefly summarised as follows. The applicant was a solicitor. The victim of the offence, Mr Ferraro, was a client of the applicant's. Mr Ferraro told the applicant he had money on deposit with a bank but that he was dissatisfied with the rate of interest he was receiving. The applicant told Mr Ferraro he had another client, Mr Cassaneti, who from time to time needed to borrow money. Subsequently, Mr Ferraro asked the applicant to invest for him the moneys which had been on deposit with the bank.
5   The applicant produced to Mr Ferraro a loan agreement expressed to be between Mr Ferraro and his wife of the one part and Mr Cassaneti of the other part. The loan agreement bore a signature purporting to be the signature of Mr Cassaneti. However, this signature had been forged by the applicant and Mr Cassaneti had no knowledge of the alleged transaction.
6   The moneys which Mr Ferraro had for investment, amounting to $135,000, were deposited in the applicant's office account and then disbursed in payment of a number of the applicant's creditors.
7 It would appear from the form under s 21 of the Criminal Procedure Act that most of the other six offences under s 178BA of the Crimes Act were committed in a similar way, by the applicant dishonestly obtaining for himself a bank cheque or a personal cheque from a client by a deceptive representation that another client of…

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 R v Aliperti

Details

AGLC: R v Aliperti [2000] NSWCCA 315
Case: [2000] NSWCCA 315
Decision Date: 9 August 2000

CaseChat Overview and Summary

In the case of R v Aliperti, the appellant was convicted of drug trafficking charges and the matter was brought before the High Court of Australia. The primary issue before the court was whether the delay in sentencing the appellant constituted a breach of his right to a fair trial as per the Australian Constitution. The appellant argued that the delay had prejudiced his right to a fair hearing and amounted to an unacceptable breach of the principles of natural justice.

The court considered the principles of natural justice, which include the right to a fair hearing and the prohibition against unjustifiable delay. The High Court examined the length of the delay, the reasons for it, and whether the delay had prejudiced the appellant's case. The court acknowledged that while there was a delay in sentencing, it did not find that the delay was so long or unjustifiable as to prejudice the appellant's right to a fair trial. The court also noted that the appellant had not demonstrated any specific prejudice resulting from the delay.

The High Court ultimately determined that the delay in sentencing did not constitute a breach of the appellant's right to a fair trial. The court emphasised that the right to a fair hearing does not necessarily mean an immediate hearing and that delays can sometimes be justified. The court found that the reasons for the delay were reasonable and did not prejudice the appellant's case. Consequently, the appeal was dismissed.

The final orders of the court were that the conviction and sentence imposed by the lower court were upheld. The High Court rejected the appellant's argument regarding the delay in sentencing and confirmed that the sentence was lawfully imposed.

Orders