R v Elias - [2007] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 401 of 2006

THE QUEEN
	V
MARIA TERESA ELIAS

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JUDGES:	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2007
DATE OF JUDGMENT:	19 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 125

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Criminal law – Sentence of 20 months imprisonment with a non-parole period of 12 months for 19 counts of theft committed over a period exceeding three and a half years – Whether manifestly excessive – Whether non-parole period too high – Whether suspended sentence appropriate – “Impaired mental functioning” attributable to marital abuse – Applicability of Verdins principles in the circumstances – Sentence not manifestly excessive - Appeal dismissed.

R v Verdins [2007] VSCA 102

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms Angela Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Galbally & O’Bryan

NETTLE JA:

I agree with Ashley JA, for the reasons which his Honour gives, that this appeal should be dismissed.

ASHLEY JA:

This is an appeal by leave against sentence passed upon the appellant, Maria Elias, in the County Count on 1 December 2006. The appellant, who had earlier pleaded guilty to 19 counts of theft,[1] was sentenced on that day to a total effective sentence of 20 months’ imprisonment with a non-parole period of 12 months.
[1]Crimes Act 1958, s 72. The maximum sentence for each offence was ten years’ imprisonment. The individual sentences, and provision for cumulation, were as follows: Count 1 – 2 months; Count 2 – 2 months; Count 3 – 2 months; Count 4 - 4 months; Count 5 – 2 months; Count 6 – 4 months; Count 7 – 4 months; Count 8 – 4 months; Count 9 – 2 months; Count 10 – 2 months; Count 11 – 2 months; Count 12 – 4 months; Count 13 – 2 months; Count 14 – 2 months; Count 15 – 2 months; Count 16 – 2 months; Count 17 – 2 months; Count 18 – 2 months; Count 19 – 2 months. Count 4 was the base sentence. The sentences imposed on each of Counts 6, 7 , 8 and 12 were cumulated on each other and on Count 4.

Circumstances of the offences

The offences took place between 25 January 2000 and 29 October 2004. The appellant, a woman born on 3 December 1973 and a qualified accountant by profession, had been employed by Graham J Clark & Co, a firm which specialized in insolvencies and reconstructions, from 1995. In the pertinent period she was the sole employee of the firm’s principal, and was responsible for the administration of bankrupt estates. It is plain that she was completely trusted by her principal in carrying out this important work. The tip of the iceberg of her offending was discovered as the result of an audit of the firm’s work in mid 2004. Further investigation progressively revealed the full extent of the offending. The full…

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 Elias

Details

AGLC: R v Elias [2007] VSCA 125
Case: [2007] VSCA 125
Decision Date: 19 June 2007

CaseChat Overview and Summary

In the case of R v Elias, the appellant, Elias, challenged the sentence imposed upon him by the County Court of Victoria, which sentenced him to 20 months imprisonment with a non-parole period of 12 months for 19 counts of theft committed over a period exceeding three and a half years. Elias argued that the sentence was manifestly excessive and that the non-parole period was too high. Additionally, he contended that a suspended sentence would have been more appropriate, considering his impaired mental functioning, which he attributed to marital abuse. The court was required to determine whether the sentence was manifestly excessive, whether the non-parole period was appropriate, and whether a suspended sentence was a viable alternative in light of his impaired mental functioning.

The court considered the principles established in the case of R v Verdins, which dealt with similar sentencing issues in the context of impaired mental functioning. The court recognised that Elias's impaired mental functioning due to marital abuse could be a mitigating factor. However, the court also noted that the offences were numerous and committed over an extended period, indicating a pattern of criminal behaviour. The court balanced these factors against the need for general deterrence and the protection of the community, ultimately concluding that the sentence was not manifestly excessive. The court held that the non-parole period was appropriate given the nature and extent of the offending, and that a suspended sentence would not adequately address the need for specific deterrence or protect the community.

The court dismissed Elias's appeal, affirming the original sentence. The reasoning focused on the gravity of the offences, the need for general deterrence, and the protection of the community. The court concluded that the sentence, while harsh, was necessary to achieve these objectives. Elias's impaired mental functioning, while a mitigating factor, did not outweigh the severity of his criminal conduct. The court's decision underscored the importance of considering both aggravating and mitigating factors in sentencing, but ultimately found that the sentence imposed was proportionate and appropriate in the circumstances.

Orders