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R v Galletta

R v Galletta

Case [2007] VSCA 177 30 August 2007

Prospects of Rehabilitation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 295 of 2006

THE QUEEN
	v
JOHN GALLETTA

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JUDGES:	BUCHANAN and REDLICH JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2007
DATE OF JUDGMENT:	30 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 177

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CRIMINAL LAW – Sentence – “Rolled up” counts of theft from an employer over a period of nine years – Aggregate sentence wrongly imposed – Gambling addiction – Whether a factor in mitigation – Restitution – Reasons for fixing minimum term – Prospects of rehabilitation – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr G F Meredith	Paul Vale Criminal Law

BUCHANAN JA:

I agree with Redlich JA, for the reasons he has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

REDLICH JA:

The appellant, who had a gambling addiction, methodically embezzled money from his employer over a period of nine years. He pleaded guilty to 10 “rolled up” counts of theft and one count of obtaining a financial advantage by deception, and was sentenced to 4 years’ imprisonment with a non-parole period of 3 years. He now appeals against that sentence having been granted leave to appeal.

The grounds of appeal identify error by the sentencing judge in fixing an aggregate sentence on the rolled up counts and further complain that his Honour did not take into account such restitution as the appellant had made, failed to treat the appellant’s gambling addiction as a mitigating factor, placed undue weight upon the fact that the appellant at the time of sentence was employed in the Greyhound racing industry and was still gambling and did not give any or sufficient weight to his prospects of rehabilitation. It was also submitted that the head sentence and non parole period was manifestly excessive.

Between 1996 and 2005 the appellant, who was then aged between 29 and 38 years, was employed as an office manager and bookkeeper by Drouin Concrete Pipes and Products Pty Ltd. He was given the role of organising salaries to be distributed to all employees each week. He was required to prepare a pay sheet that listed each employee, their salaries and the bank accounts into which their salaries were to be paid. Pay sheets having been signed by a director of the company would be faxed to the Westpac Bank and the appropriate funds would then be transferred from the company’s account into the accounts of the employees named on the pay sheet. In order to commit the thefts constituting counts 1 to 10 on the presentment, the appellant created a false company pay sheet that had a copy of the director’s signature on it and placed his name and bank details and a sum of money that he

wished to have transferred on the sheet. The pay sheet was then faxed to the Westpac Bank who would then…

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.

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Details

AGLC: R v Galletta [2007] VSCA 177
Case: [2007] VSCA 177
Decision Date: 30 August 2007

CaseChat Overview and Summary

The appellant, Galletta, was convicted on 11 counts of theft from his employer over a period of nine years. The trial judge imposed a sentence that was later found to be erroneous in the aggregation of the counts. Galletta appealed against the sentence, arguing that the court should have considered his gambling addiction as a mitigating factor and that the sentence did not adequately address the need for restitution. The case came before the court for review of the sentence's legality and appropriateness.

The legal issues before the court involved the proper method of sentencing for multiple counts of theft that were interconnected and the weight to be given to mitigating factors such as a gambling addiction. The court had to determine whether the sentence imposed was excessive or inappropriate given the nature of the offences and the appellant's personal circumstances. Additionally, the court needed to consider whether the trial judge erred in not making specific findings about the minimum term and the prospects for rehabilitation.

The court found that the trial judge erred in the aggregation of the theft counts, leading to an excessive sentence. It was noted that the gambling addiction was a significant mitigating factor that should have been given more weight. The court also highlighted that the trial judge did not sufficiently address the issue of restitution or the appropriate minimum term for the sentence. After considering these factors, the court determined that the appeal against the sentence should be allowed and ordered a re-sentencing hearing. The court provided detailed reasons for the appropriate minimum term and emphasised the need for restitution and the prospects of rehabilitation in its final orders.

Orders