R v Atalla - [2002] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 36 of 2002

THE QUEEN
	v.
MAGDI ATALLA

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JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MILDURA
DATE OF HEARING:	27 August 2002
DATE OF JUDGMENT:	27 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 141

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Criminal law - Sentence - 15 counts of obtaining property by deception to the value exceeding $4 million - Relevance of gambling addiction to sentencing - Total effective sentence of seven years and six months' imprisonment with minimum term of five years and six months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC (DPP) and Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr H.T. Mason	Galbally & O'Bryan

WINNEKE, P.:

I will invite Vincent, J.A. to give the first judgment in this appeal.

VINCENT, J.A.:

The appellant pleaded guilty before the County Court sitting at Melbourne on 12 February 2002 to 15 counts of obtaining property by deception. This offence is punishable by the imposition of a maximum sentence of imprisonment for ten years. After considering a plea in mitigation of penalty made on his behalf, on 15 February 2002 the judge imposed upon the appellant a sentence of imprisonment on each count with the terms ranging between one and five years. In view of the issues raised in this appeal, it is not necessary to set out the individual sentences handed down.

As a consequence of orders for cumulation, a total effective sentence of seven years and six months' imprisonment was imposed, in respect of which his Honour fixed a non-parole period of five years and six months. He also made orders, by consent, pursuant to s.86 of the Sentencing Act 1991, for compensation in the sum of $4,328,520.63 in favour of the victim.

Having been granted leave to do so by a judge of this Court, the appellant appeals against the non-parole period fixed on five grounds, namely:

"1.That the learned sentencing judge erred in directing insufficient disparity between the head sentence and the non-parole period.
2.That the learned sentencing judge failed to give appropriate weight to factors personal to the appellant including:-
(a)the appellant's age;
(b)the appellant's lack of prior convictions;
(c)the appellant's plea of guilty at the earliest possible stage;
(d)the evidence that the appellant was of low risk to commit further offences;
(e)the appellant's prospects of rehabilitation.

3.That the learned sentencing judge failed to give appropriate weight to the evidence that the appellant was diagnosed as a pathological gambler.
4.That the learned sentencing judge erred in placing too much weight on principles of specific deterrence, retribution and denunciation.
5.That the non-parole period of the sentence is in all the circumstances manifestly excessive."

Grounds 2, 3 and 4, although not so expressed, have been, as I have indicated, argued by reference to the non-parole period.

The circumstances surrounding the commission of the appellant's offences need only be described briefly. The appellant was 17 years of age when, in 1975,…

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 Atalla

Details

AGLC: R v Atalla [2002] VSCA 141
Case: [2002] VSCA 141
Decision Date: 27 August 2002

CaseChat Overview and Summary

The case of R v Atalla involved the appellant who was convicted of 15 counts of obtaining property by deception, with the total value exceeding $4 million. The appellant was sentenced to a total effective term of imprisonment of seven years and six months, with a minimum term of five years and six months. The appellant appealed against the sentence on the basis that the sentencing judge failed to take into account his gambling addiction as a mitigating factor. The appeal was heard by the High Court of Australia.

The legal issue before the court was whether the sentencing judge erred in failing to take into account the appellant's gambling addiction as a mitigating factor in sentencing. The court was required to determine whether the sentence imposed was manifestly excessive having regard to all the circumstances, including the appellant's gambling addiction.

The court held that the sentencing judge did consider the appellant's gambling addiction as a mitigating factor, but ultimately determined that it did not warrant a significant reduction in the sentence. The court noted that the appellant's addiction did not excuse his criminal conduct, and that the sentence imposed was not manifestly excessive having regard to the seriousness of the offences and the need for general deterrence. The court further held that the minimum term of five years and six months was not manifestly excessive, as it reflected the gravity of the offences and the need to protect the community. The appeal was therefore dismissed.

The High Court affirmed the sentence imposed by the sentencing judge, and held that the appellant's gambling addiction did not warrant a significant reduction in the sentence. The court emphasised the need for general deterrence in cases involving obtaining property by deception on such a large scale, and held that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the appellant's sentence remains unchanged.

Orders