R v Gittani - [2002] NSWCCA 139

CITATION: Regina v Elie Gittani [2002] NSWCCA 139

FILE NUMBER(S): CCA 60042/02

HEARING DATE(S): 12 April 2002

JUDGMENT DATE:
19 April 2002

PARTIES :

Regina
Elie Gittani

JUDGMENT OF: Ipp AJA at 1; Sully J at 2; Bell J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0908

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : M. G. Allnutt - Crown
G. A. Brady - Appellant

SOLICITORS: Commonwealth DPP - Crown
Tab Law - Appellant

LEGISLATION CITED: Crimes (Currency) Act 1981 (C'th)
Crimes Act 1914 (C'th)

CASES CITED:
Reg v Simpson [2001] NSWCCA 534
The Queen v De Simoni [1981] 147 CLR 383
Anthony Frank Howard [1985] 82 CrAppR 262

DECISION: Leave to appeal against sentence granted; appeal dismissed

60042/02

IPP AJA
SULLY J
BELL J
Friday 19 April 2002

REGINA v ELIE GITTANI

Judgment

1 IPP AJA: I agree with Sully J.

2 SULLY J: On 10 December 2001 Mr. Elie Gittani, the present applicant, was presented for trial in the District Court at Sydney before Kinchington DCJ. He was so presented upon an indictment charging that on 6 April 2001 he did, without lawful authority or reasonable excuse, have in his possession counterfeit money, namely ninety-one counterfeit Australian $50 notes knowing it to be counterfeit money. Such a charge contravenes section 9(1)(a) of the Crimes (Currency) Act 1981 (C’th), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years and/or a maximum fine of $66,000.

3 The applicant pleaded not guilty, and he stood trial accordingly before his Honour and a jury. The jury found the applicant guilty as charged. Thereafter, and on 1 February 2002, the applicant stood for sentence before Kinchington DCJ. He was convicted and sentenced to imprisonment for 2 years to date from 1 February 2002. An order was made for his release after serving 6 months of that period of imprisonment; such release being conditioned upon his entering a recognisance, himself in the sum of $1,000, to be of good behaviour for the remainder of the said period of his sentence.

4 The applicant seeks leave to appeal against that sentence of imprisonment. His grounds of appeal, as formally notified, are:

“1. The sentence imposed was, in all the circumstances, unduly harsh and severe.

2. The sentencing judge erred in imposing a custodial sentence.

3. The sentencing judge erred in failing to wholly suspend the custodial sentence.

4. The sentencing judge erred in:

(a) failing to find hardship;

(b) failing to give sufficient weight to the appellant’s good character;

(d) finding as a matter adverse to the appellant an intention to commit another more serious offence;

(e) placing undue weight on the principle of general deterrence;

(f) asserting as a matter of principle that any person convicted of the offence of knowingly having in his possession without lawful excuse such notes must ordinarily expect to go…

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 Gittani

Details

AGLC: R v Gittani [2002] NSWCCA 139
Case: [2002] NSWCCA 139
Decision Date: 19 April 2002

CaseChat Overview and Summary

In the case of Regina v Elie Gittani, the appellant, Mr. Gittani, was convicted by a jury in the District Court of possessing counterfeit money without lawful authority or reasonable excuse, in violation of section 9(1)(a) of the Crimes (Currency) Act 1981 (C’th). He was sentenced to two years imprisonment, with a condition for his release after serving six months. Mr. Gittani sought leave to appeal against the sentence on the grounds that it was unduly harsh and severe, and that the sentencing judge made several errors in the sentencing process.

The legal issues before the court were whether the sentencing judge miscarried in their discretion by committing errors of fact or law, and if so, whether the sentence warranted reconsideration. The court examined the submissions made by both the appellant and the Crown, and the factors the sentencing judge considered in imposing the sentence. The court found that the sentencing judge did not commit any errors in their sentencing process, and that the sentence was appropriate given the seriousness of the offence and the need for general deterrence.

The court noted that the knowing possession of counterfeit money is a serious offence that undermines the integrity of the national currency. The statutory maximum penalty for this offence is imprisonment for 10 years, and the court held that such an offence should attract some form of full-time custodial penalty in the absence of cogent and compelling circumstances. The sentencing judge considered the appellant's lack of remorse, and the need to send a message to others in the community who might be tempted to act similarly. The court found that the sentencing judge did not commit any errors in their sentencing process, and that the sentence was appropriate given the circumstances.

Accordingly, the court granted leave to appeal against sentence but dismissed the substantive appeal against sentence. The appellant's sentence of two years imprisonment, with a condition for his release after serving six months, was upheld.

Orders