R v Del Busso - [2024] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation: R v Del Busso [2024] NSWLC 4
Hearing dates: 13 February 2024
Date of orders: 13 February 2024
Decision date: 13 February 2024
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
See orders at [41]

Catchwords:
SENTENCING – Crimes Act, 156 – larceny of a clerk – defendant responsible for banking duties committed systematic theft of patient funds – Crimes (Sentencing Procedure) Act 1999, s 5 – whether there are any alternatives to the imposition of a sentence of imprisonment – s 5 threshold is met on the basis of a multitude of sentencing factors – factors include the 10 year maximum penalty for the offence; the objective seriousness of the crime; the additional punishment that must be imposed for the Form 1 offence; the crimes were committed over a number of months and only ceased once the defendant’s conduct had been detected; the amount of money involved; the serious breach of trust; the importance of general and personal deterrence, denunciation and accountability; and the degree of planning
SENTENCING – jurisdictional limits – requirement of court to determine the sentence by reference to the maximum penalty prescribed and not to have regard to the jurisdictional limit of the Local Court – requirement to apply Park v The Queen (2021) 273 CLR 303

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:
Abbas v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
FL v R [2020] NSWCCA 114
Markarian v The Queen (2005) 228 CLR 357
Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
Power v The Queen (1974) 131 CLR 623
R v Boughen [2012] NSWCCA 17
R v El-Rashid (unrep, 7/4/95, NSWCCA)
R v Mungomery [2004] NSWCCA 450
Stanley v DPP (NSW) [2023] HCA 3; (2023) 296 ALJR 107
R v Pantano (1990) 49 A Crim R 328
Totaan v R [2022] NSWCCA 75

Texts Cited:
Nil

Category: Principal judgment
Parties:
Police (Prosecution)
Arabella Del Busso (Defendant)
Representation:
Solicitors:

Mr Stewart (Defendant)
Sergeant Lolis (Prosecution)

File Number(s): 2021/00156741
Publication restriction: No

Judgment

Arabella Del Busso (hereafter the defendant) has pleaded guilty to one offence of larceny by a clerk under s 156 of the Crimes Act 1900 (NSW). The defendant stole $35,785 from the Kogarah branch of a company known as Rheumatology Specialist Care (hereafter the Company) between 25 September 2019 and 6 February 2020 whilst she was responsible for banking patient fees.
The defendant has also admitted to committing another offence of larceny by a clerk under s 156 of the Crimes Act 1900. She admitted taking $16,565 from the Randwick branch of the same organisation in similar circumstances to the first offence. The second offence has been placed on a Form 1 document and is to be taken into account in…

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 Del Busso

Details

AGLC: R v Del Busso [2024] NSWLC 4
Case: [2024] NSWLC 4
Decision Date: 13 February 2024

CaseChat Overview and Summary

The defendant, Del Busso, was convicted of larceny by a clerk under the Crimes Act. Del Busso, who was responsible for banking duties, systematically stole funds from patients over several months, a crime that only ceased once his conduct was detected. The case reached the court for sentencing, where the primary issue was whether there were any alternatives to imposing a sentence of imprisonment. The court considered the maximum penalty for the offence, the objective seriousness of the crime, the need for additional punishment due to the Form 1 offence, the prolonged duration of the crimes, the substantial amount of money involved, the breach of trust, and the importance of general and personal deterrence, denunciation, and accountability.

The court thoroughly evaluated the multitude of sentencing factors, including the statutory maximum penalty of 10 years, the gravity of the offence, and the necessity for additional punishment. It was noted that the crimes were meticulously planned and executed over a significant period, reflecting a serious breach of trust. The court acknowledged the importance of imposing a sentence that serves as a deterrent and ensures accountability. It applied the principles from Park v The Queen, ensuring that the sentence was determined by reference to the maximum penalty prescribed by law, rather than jurisdictional limits of the Local Court. Based on these considerations, the court concluded that imprisonment was necessary.

In light of the analysis, the court determined that the defendant’s conduct warranted a sentence of imprisonment. It balanced the various factors and concluded that a custodial sentence was essential to uphold the objectives of punishment, deterrence, and accountability. The court’s decision was influenced by the need to address the severity of the breach of trust and the substantial impact on the victims.

The final orders of the court, detailed at [41], reflect the sentencing decision, taking into account the comprehensive analysis of the relevant factors and the applicable legal principles.

Orders

Orders of the court

See orders at [41]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Del Busso [2024] NSWLC 4
Hearing dates:	13 February 2024
Date of orders:	13 February 2024
Decision date:	13 February 2024
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	See orders at [41]
Catchwords:	SENTENCING – Crimes Act, 156 – larceny of a clerk – defendant responsible for banking duties committed systematic theft of patient funds – Crimes (Sentencing Procedure) Act 1999, s 5 – whether there are any alternatives to the imposition of a sentence of imprisonment – s 5 threshold is met on the basis of a multitude of sentencing factors – factors include the 10 year maximum penalty for the offence; the objective seriousness of the crime; the additional punishment that must be imposed for the Form 1 offence; the crimes were committed over a number of months and only ceased once the defendant’s conduct had been detected; the amount of money involved; the serious breach of trust; the importance of general and personal deterrence, denunciation and accountability; and the degree of planning SENTENCING – jurisdictional limits – requirement of court to determine the sentence by reference to the maximum penalty prescribed and not to have regard to the jurisdictional limit of the Local Court – requirement to apply Park v The Queen (2021) 273 CLR 303
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited:	Abbas v R [2013] NSWCCA 115 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 FL v R [2020] NSWCCA 114 Markarian v The Queen (2005) 228 CLR 357 Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 Power v The Queen (1974) 131 CLR 623 R v Boughen [2012] NSWCCA 17 R v El-Rashid (unrep, 7/4/95, NSWCCA) R v Mungomery [2004] NSWCCA 450 Stanley v DPP (NSW) [2023] HCA 3; (2023) 296 ALJR 107 R v Pantano (1990) 49 A Crim R 328 Totaan v R [2022] NSWCCA 75
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Police (Prosecution) Arabella Del Busso (Defendant)
Representation:	Solicitors: Mr Stewart (Defendant) Sergeant Lolis (Prosecution)
File Number(s):	2021/00156741
Publication restriction:	No