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R v Aller

R v Aller

Case [2004] NSWCCA 378 5 November 2004

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CITATION: Regina v Aller [2004] NSWCCA 378

HEARING DATE(S): 21/10/04

JUDGMENT DATE:
5 November 2004

JUDGMENT OF: Hulme J at 1; Buddin J at 3; M W Campbell AJ at 4

DECISION: Appeal dismissed

CATCHWORDS: Sentence - Crown Appeal - Defrauding the Commonwealth - Impact of imprisonment of mother on invalid son - Whether suspended sentence justified - Importance of general deterrence.

LEGISLATION CITED: Crimes Act 1914 (Cth) ss16A(2)(p), 20(1)(b), 29D
Criminal Code Act 1995 (Cth) s134.2.(1)

CASES CITED: R V Purdon (unrep CCA 27 March 1997
R v Luu (unrep CCA 7 December 1984)
R V Medina (unrep CCA 29 May 1990)
R v Sopher (1993) 70A Crim R 57
R v Hinton (2002) 134 A Crim R 286
R v Keir [2004] NSWCCA 106 19 May 2004
R v Togias (2001) 127 A Crim R 23

PARTIES :
Regina
Noeline Marie ALLER

FILE NUMBER(S): CCA 04/1830

COUNSEL: Mr G J Bellew - Crown
Mr R A Hulme SC - Respondent

SOLICITORS: Ms S Calomeris - DPP
Ms J King - Legal Aid Commission of NSW

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0323

LOWER COURT
JUDICIAL OFFICER : Charteris DCJ

CCA 2004/1830

HULME J
BUDDIN J
M W CAMPBELL AJ
Friday 5 November 2004

REGINA v Noeline Marie ALLER

JUDGMENT

1 HULME J: Subject to one matter, I agree with the reasons for judgment of Campbell AJ.

2 Without further consideration which, in the circumstances of this case, it is unnecessary to give, I would not wish to be taken as agreeing with the remarks of Howie J in R v Hinton (2002) 124 A Crim R 286 which Campbell AJ has cited. The characterisation of circumstances as exceptional is not a finding of primary fact. An appellate court is in just a good a position as a primary judge in deciding whether circumstances found by that judge fall within the description “exceptional”. No doubt an appellate court will give weight to the primary judge’s view but I very much doubt whether the appellate court is as constrained as Howie J suggests.

3 BUDDIN J: I agree with Campbell AJ.

4 CAMPBELL AJ: The Crown appealed, on the ground of manifest inadequacy, against sentences imposed upon the respondent (Noeline Marie Aller) by Judge Charteris of the District Court on 4 June 2004 when she appeared for sentences on two counts which were as follows:

1. One count under s 29D of the Crimes Act 1914 (Cth) of defraud the Commonwealth between about 5 July 1985 and 22 May 2001 by obtaining Social Security payments in the name of Nola Benson;

Criminal Code Act

5 For each offence she was sentenced to two years imprisonment with an…

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 Aller

Details

AGLC: R v Aller [2004] NSWCCA 378
Case: [2004] NSWCCA 378
Decision Date: 5 November 2004

CaseChat Overview and Summary

In the case of R v Aller, the respondent, Aller, appealed against his sentence for defrauding the Commonwealth. The case reached the court following a conviction for engaging in fraudulent activities that resulted in significant financial loss to the Commonwealth. The dispute centred on the appropriateness of the sentence imposed, specifically whether the court had correctly considered the impact of the sentence on Aller's invalid son and his mother, as well as the principles of general deterrence in sentencing.

The primary legal issue before the court was whether the trial judge had erred in imposing a suspended sentence instead of an immediate custodial sentence. The court was required to assess whether the trial judge appropriately balanced the factors of general deterrence, the impact of imprisonment on Aller's son, and the overall circumstances of the offence in arriving at the sentence. The court also needed to determine if the trial judge had sufficiently considered the principles of sentencing as outlined in relevant legislation and case law.

The court found that the trial judge had indeed considered the relevant factors, including the impact of imprisonment on Aller's invalid son and his mother. The court held that the trial judge appropriately exercised their discretion in imposing a suspended sentence, acknowledging the personal circumstances of Aller while also emphasising the importance of general deterrence in cases of defrauding the Commonwealth. The court concluded that the sentence imposed was not manifestly excessive or inadequate and upheld the decision of the trial judge.

The court further determined that the trial judge had correctly applied the principles of sentencing and had not erred in their assessment of the circumstances. Consequently, the appeal was dismissed, and the original sentence of a suspended imprisonment term was upheld. The court's decision underscored the importance of balancing individual circumstances with the broader societal need for deterrence in criminal sentencing.

Orders