R v Musolino - [2004] SASC 89

R v MUSOLINO
[2004] SASC 89
Court of Criminal Appeal: Bleby, Gray and Sulan JJ

BLEBY J: The appellant appeals against his sentence for 15 counts of fraudulent conversion. He was found guilty of those offences after a trial by jury in the District Court. The maximum penalty for each offence is 7 years imprisonment.
The appellant was charged with 16 counts of fraudulent conversion. He was convicted on all but count 5. Counts 1,2 and 3 related to sums advanced to the appellant by Mr Nick Assiotis to finance the investigation of the transfers of certain intellectual property to the company as franchisor of Barnacle Bill food outlets. Counts 7-10 related to monies paid to the appellant for the purchase of the debts of a bankrupt and of shares in the same franchisor company. Counts 4 and 6 and 11-16 related to sums advanced by seven persons, including Nick Assiotis and his brother Steve Assiotis, to be invested by the appellant on their behalf. Counts 14 and 15 related to monies advanced for the purchase of creditors’ debts.
The offences were committed during a period from 18 May 1999 to 1 March 2000. The total amount involved was $201,642.80. Some of that money was used to repay others who had invested with the appellant.
The sentence imposed by the sentencing Judge was 6 years imprisonment, with a non-parole period of 3 years. The sentencing Judge took into account the fact that the appellant had spent one month in custody after his conviction and approximately 1 month on home detention bail before being sentenced. The sentence took effect from 22 April 2003.
There are two grounds on which leave to appeal was given. One is that the sentencing Judge erred in finding that in order to commit the offences the appellant gained the trust of the victims by holding himself out to be an accountant and an auditor employed by the Commonwealth Government. The second is that the head sentence and non-parole period are manifestly excessive, taking into account the appellant’s age, his previous record and prospects of rehabilitation, that he had endeavoured to make restitution and that, although the offending involved a breach of trust, it did not involve an abuse of his position and was therefore not of a “systematic type”.
Before turning to those grounds it is necessary to say something more about the facts. The appellant previously appealed against his conviction. That appeal was dismissed: R v Musolino (2003) 86 SASR 37. The judgment of Lander J at [17] to [54] contains a convenient summary of the facts. I have relied on that summary and will not repeat it. In essence, Steve and Nick Assiotis conducted two Barnacle Bill franchises. They had ongoing disagreements with the franchisor and in particular with a Mr Leonida, with whom they dealt. Mr Leonida was bankrupt, and Nick Assiotis believed that, before his bankruptcy, he had transferred certain intellectual property in relation to the franchise to a company of…

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 Musolino

Details

AGLC: R v Musolino [2004] SASC 89
Case: [2004] SASC 89
Decision Date: 2 April 2004

CaseChat Overview and Summary

The appellant in this case appeals his sentence for 15 counts of fraudulent conversion, for which he was convicted following a trial by jury. Each count carries a maximum penalty of 7 years imprisonment. The appellant was charged with 16 counts of fraudulent conversion, but was acquitted on count 5. The offences occurred between 18 May 1999 and 1 March 2000 and involved a total of $201,642.80. The appellant used the money entrusted to him for his own purposes and held himself out as a competent accountant and auditor, although he had no formal qualifications in accountancy. The District Court imposed a sentence of 6 years imprisonment, with a non-parole period of 3 years.

The appellant argues that the sentencing judge erred in finding that he gained the trust of the victims by holding himself out to be an accountant and auditor employed by the Commonwealth Government and that the sentence and non-parole period are manifestly excessive. The Court of Criminal Appeal found that the sentencing judge was correct in stating that the appellant gained the trust of his victims by holding himself out as an accountant and auditor employed by the Commonwealth Government. The Court also found that the sentence and non-parole period were not manifestly excessive, taking into account the nature and extent of the offending, the nature and extent of the deceit involved and the impact of the offending on the victims. The Court observed that the appellant's age, previous record and prospects of rehabilitation were not sufficient to discount his sentence. The appeal was dismissed by the Court of Criminal Appeal.

The final orders of the Court of Criminal Appeal were that the appeal be dismissed, and the sentence and non-parole period imposed by the District Court be upheld.

Orders