R v Gadaloff - [1998] QCA 458

[1998] QCA 458

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
WHITE J

CA No 384 of 1998

THE QUEEN

NARELLE ANNE GADALOFF Applicant

CA No 395 of 1998

THE QUEEN

GARTH MICHAEL GADALOFF Applicant

BRISBANE

..DATE 23/11/98

JUDGMENT

THE CHIEF JUSTICE: The applicants were sentenced in the Supreme Court on 27 October 1998 having pleaded guilty in the case of the male applicant to fraud with a circumstance of aggravation attracting eight years imprisonment against a maximum of 10; money laundering, four years imprisonment against a maximum of 20; and possession of tainted property, one year against a maximum of two; and in the case of the female applicant money laundering, for which she was sentenced two years imprisonment; and possession of tainted property, one year. All terms are to be served concurrently. They respectively seek leave to appeal on the ground that the sentences are manifestly excessive.

The applicants are husband and wife. Neither had any prior criminal history. Each is 33 years old. They have a two year old child who was born in July 1996. The offences occurred in this way. The male applicant was head bulk cashier for the Brisbane City Council. Over four to five years to August 1997 he systematically stole approximately $2.5 million of Council moneys. He would go to his office early in the morning before the arrival of other staff and remove money from the parking meter collection. He would mix those moneys with other Council takings and remove an equivalent amount from them in note form. He would then take the notes from the building.
He was taking home as much as $7,500 in cash daily. He used this money to purchase land, furniture, cars and an extensive wine collection and to pay for an intended lavish overseas holiday - although it appears that that payment may not actually have been made - but in addition the moneys were used to pay for a luxurious lifestyle.

The Council detected the fraud when its officers noted a substantial drop in parking meter takings. Within a week of his arrest the male applicant consented to interim orders restraining dealings with his property. Obviously enough the acquisition of his and his wife's extensive property holdings could not have been explained by his normal Council wage.

He had declined to be interviewed by the police but did indicate early that he would be pleading guilty and he authorised the transfer into Queensland of approximately $240,000 he had placed in a Swiss bank account. That would have been difficult to recover but for his cooperation. Of the amount stolen estimated at $2,584,000 assets amounting to or valued at $2,199,833 have been or will be recovered which includes $328,000 from an accomplice, one Dewar. The nett ultimate loss should therefore be of the order of $380,000 on my calculations.

Some aspects of the conduct of the applicants which are of significance to the sentencing process are clearly established. Their gross breach of the…

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 Gadaloff

Details

AGLC: R v Gadaloff [1998] QCA 458
Case: [1998] QCA 458
Decision Date: 23/11/1998

CaseChat Overview and Summary

In the matter of The Queen v. Narelle Anne Gadaloff and The Queen v. Garth Michael Gadaloff, the applicants, who were husband and wife, sought leave to appeal against the sentences imposed by the Supreme Court. The male applicant had pleaded guilty to fraud with a circumstance of aggravation, money laundering, and possession of tainted property. The female applicant had pleaded guilty to money laundering and possession of tainted property. Both applicants contended that the sentences imposed were manifestly excessive.

The legal issues before the Court of Appeal were whether the sentences imposed by the Supreme Court were manifestly excessive and thus warranted intervention by the Court of Appeal. The Court had to consider the severity of the offences, the applicants' personal circumstances, and the appropriate balance between the goals of punishment, deterrence, and retribution.

The Court of Appeal found that neither sentence was manifestly excessive. The Court acknowledged the seriousness of the offences, the breach of trust, the significant amount of money stolen, and the role of deterrence. The Court also considered the applicants' personal circumstances, including their lack of prior criminal history and the impact on their young child. However, the Court held that the gravity of the offence and the need for deterrence outweighed the personal hardship. The Court compared the sentences with similar cases of substantial defalcation and found that the sentences imposed were within the appropriate range.

The Court of Appeal refused both applications for leave to appeal. The sentences imposed by the Supreme Court were deemed appropriate and not manifestly excessive.

Orders