R v Ottobrino
[1999] WASCA 207
•15 OCTOBER 1999
R -v- OTTOBRINO [1999] WASCA 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 207 | |
| COURT OF CRIMINAL APPEAL | 15/10/1999 | ||
| Case No: | CCA:21/1999 | 14 JULY 1999 | |
| Coram: | IPP J WALLWORK J ANDERSON J | 14/07/99 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| PDF Version |
| Parties: | THE QUEEN CATERINA OTTOBRINO NATALIE STELLITANO |
Catchwords: | Criminal law Sentence Crown appeal Stealing Breach of trust Large number of offences Two women with young children imprisoned Whether aggregate terms sufficient Serious offences Unusual circumstances Whether other offenders involved Offenders close to release from prison |
Legislation: | Nil |
Case References: | Allpass (1994) 72 A Crim R 561 Burns (1994) 71 A Crim R 450 Cransen v The King(1936) 55 CLR 508 DPP v Carter (1998) 1 VR 601 Everett v The Queen (1994) 181 CLR 295 Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996 Harris v The Queen (1954) 90 CLR 652 Kovac v The Queen (1977) 15 ALR 637 Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993 Malvaso v The Queen(1989) 168 CLR 227 Mann v R, unreported; CCA SCt of WA; Library No 950338; 14 June 1995 R v Clark [1996] 2 VR 520 R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997 R v Janine Wilson, unreported; SCt of WA; Library No 7325; 20 October 1998 R v Jeffree, unreported; CCA SCt of WA; Library 980150; 6 April 1998 R v O'Rourke [1997] 1 VR 246 R v Peterson [1984] WAR 329 R v Sivandiran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996 R v Tait (1979) 46 FLR 386 R v Wilkinson (1996) 85 A Crim R 353 Stockbridge v R, unreported; CCA SCt of WA; Library No 6798; 23 July 1987 Barrick v R (1985) 81 Cr App R 78 Bessell v R, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Birch v R (1993) 69 A Crim R 181 H (1994) 81 A Crim R 88 R v Catto (1996) 85 A Crim R 171 R v Grein [1989] WAR 178 R v Leucus (1995) 78 A Crim R 40 R v Osenkowski (1982) 30 SASR 212 R v Sanders, unreported; SCt of WA; Library No 5121; 2 November 1983 R v Wilson, unreported; CCA SCt of WA; Library No 970067; 26 February 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- OTTOBRINO [1999] WASCA 207 CORAM : IPP J
- WALLWORK J
ANDERSON J
- Appellant
AND
CATERINA OTTOBRINO
- Respondent
- Appellant
AND
NATALIE STELLITANO
- Respondent
(Page 2)
Catchwords:
Criminal law - Sentence - Crown appeal - Stealing - Breach of trust - Large number of offences - Two women with young children imprisoned - Whether aggregate terms sufficient - Serious offences - Unusual circumstances - Whether other offenders involved - Offenders close to release from prison
Legislation:
Nil
Result:
Appeals dismissed
Representation:
CCA 21 of 1999
Counsel:
Appellant : Mr S P Pallaras
Respondent : Mr M J McCusker QC & Mr K J Bonomelli
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : David Manera
CCA 24 of 1999
Counsel:
Appellant : Mr S P Pallaras
Respondent : Mr M J McCusker QC & Mr K J Bonomelli
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : David Manera
(Page 3)
Case(s) referred to in judgment(s):
Allpass (1994) 72 A Crim R 561
Burns (1994) 71 A Crim R 450
Cransen v The King(1936) 55 CLR 508
DPP v Carter (1998) 1 VR 601
Everett v The Queen (1994) 181 CLR 295
Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996
Harris v The Queen (1954) 90 CLR 652
Kovac v The Queen (1977) 15 ALR 637
Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993
Malvaso v The Queen(1989) 168 CLR 227
Mann v R, unreported; CCA SCt of WA; Library No 950338; 14 June 1995
R v Clark [1996] 2 VR 520
R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997
R v Janine Wilson, unreported; SCt of WA; Library No 7325; 20 October 1998
R v Jeffree, unreported; CCA SCt of WA; Library 980150; 6 April 1998
R v O'Rourke [1997] 1 VR 246
R v Peterson [1984] WAR 329
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Tait (1979) 46 FLR 386
R v Wilkinson (1996) 85 A Crim R 353
Stockbridge v R, unreported; CCA SCt of WA; Library No 6798; 23 July 1987
Case(s) also cited:
Barrick v R (1985) 81 Cr App R 78
Bessell v R, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Birch v R (1993) 69 A Crim R 181
H (1994) 81 A Crim R 88
R v Catto (1996) 85 A Crim R 171
R v Grein [1989] WAR 178
R v Leucus (1995) 78 A Crim R 40
R v Osenkowski (1982) 30 SASR 212
R v Sanders, unreported; SCt of WA; Library No 5121; 2 November 1983
R v Wilson, unreported; CCA SCt of WA; Library No 970067; 26 February 1997
(Page 4)
1 IPP J: As is explained in the reasons to be published by Wallwork J, at the conclusion of the hearing of these Crown appeals the Court, by a majority, dismissed both of them. I am in the minority in this respect as I would have upheld the appeals. I set out below my reasons for this conclusion.
2 Mrs Stellitano was convicted of 84 counts of stealing as a servant. She stole approximately $284,000. Mrs Ottobrino was found guilty of 51 counts of stealing as a servant. She stole approximately $194,500. The stealing took place over a period of some four years. Mrs Stellitano effected the stealing while she was employed as a book-keeper. Mrs Ottobrino did so as a supervisor, a position equivalent to that of a manager. The offences were characterised by the breaches of trust and abuses of power typical of offences of this kind. The stealing was carried out in a calculated and systematic manner. It involved falsification of documents in a sophisticated and careful way. Every attempt was made to hide the commission of the offences. Over a period of four years Mrs Stellitano and Mrs Ottobrino deliberately, carefully and ingeniously misled their employer who trusted them entirely and, by doing so, stole for themselves and their families a great deal of money. Ordinarily, such conduct requires condign punishment.
3 The money was stolen from a company called Ital Pel International Pty Ltd ("Ital Pel"). Over the period of the thefts, Ital Pel had two groups of shareholders. Fifty one per cent of the shares were held by interests on behalf of one Michelle Lombardo. Forty nine per cent were held by members of the Stellitano and Princi families. Mrs Stellitano and Mrs Ottobrino are members by birth of the Princi family. Mrs Ottobrino's sister is married to a member of the Stellitano family. Mr Joe Princi, the brother of Mrs Stellitano and Mrs Ottobrino, was a director of Ital Pel. Another director was the husband of Mrs Stellitano. The part that Messrs Princi and Stellitano played in these transactions, if any, was not made clear. It was submitted on behalf of Mrs Stellitano and Mrs Ottobrino that Messrs Princi and Stellitano "must have been privy to what was occurring". I do not think that the evidence justifies such a finding. In any event, even if they were involved in some way in the offences, that does not detract from the criminality of the conduct of Mrs Stellitano and Mrs Ottobrino.
4 There was some attempt on behalf of the respondents to minimise the loss suffered by Ital Pel. It was even suggested that it suffered no loss. These submissions could not be sustained, however, in the light of the findings by the jury. Then it was submitted that Mrs Stellitano and
(Page 5)
- Mrs Ottobrino did not appear to have derived the entire benefit from the stolen monies themselves. It is, however, clear that while only some of the monies went to the two women, the balance went, directly or indirectly, to their respective families. It is to be observed that the proceeds of the offences were banked to the credit of personal family accounts of the two women.
5 The shareholding owned by the Lombardo interests was held in the name of a company called Anchorage Investments Pty Ltd ("Anchorage"). At the time of the stealing, Anchorage was controlled by Lombardo. Anchorage later sold its shares in Ital Pel to the Princi and Stellitano families. The sale was effected in two parcels. The sale of the second parcel occurred after the defalcations had been discovered. The price payable to Anchorage for the second parcel was $70,000. It was submitted by senior counsel for Mrs Stellitano and Mrs Ottobrino that the inference to be drawn from this was that Mr Lombardo was "quite satisfied with the outcome". The fact is, however, that Mr Lombardo was never asked the question whether he was satisfied with the outcome. He was asked whether he did anything about the money that had been stolen from Ital Pel. He said "we were going to sue the bank". When asked, "what for?" he replied, "for loss of funds; loss of money". These replies are not consistent with Mr Lombardo being "satisfied with the outcome". Attention was drawn to the fact that Mr Lombardo provided a reference for Mrs Stellitano in the course of the sentencing process. He said "I find it very difficult now to understand the predicament that Natalie has found herself in considering her honesty". He also said:
"If Natalie was convicted of any of the offences she has been charged with I would not like to see her imprisoned as they would be out of character for her.
I have no hesitation in giving the above reference."
- In my view, this reference does not give rise to the inference that Mr Lombardo was somehow compensated for the losses he suffered in consequence of the stealing.
6 There was a considerable body of evidence relating to the personal antecedents of Mrs Stellitano and Mrs Ottobrino. They were described as "caring", "hard working", "polite", "sincere", and "responsible". In my view, these epithets are of little moment when compared to the long period during which, by a process of dishonesty and active deliberate misrepresentation, Mrs Stellitano and Mrs Ottobrino stole money from the persons who trusted them and relied upon them.
(Page 6)
7 Much was sought to be made of the fact that both Mrs Stellitano and Mrs Ottobrino had young children. This apparently played a considerable part in the decision of his Honour to impose the sentences that he did. Again, in my view, in the light of the sustained and systematic criminally dishonest conduct of the two women, the fact that they have young children should be of minor weight. In Burns (1994) 71 A Crim R 450 Anderson J (with whom Pidgeon J agreed) said (at 454-455):
"I am not persuaded that this is a case in which there will be any special hardship imposed upon the applicant by imprisonment … It may be accepted that her children are young and the thought of being parted from them for an extended period causes her much anxiety and unhappiness. But it is difficult to say that these features of the case make it a special case. The mere fact that there are young dependants is not in itself an exceptional circumstance, quite obviously. I do not think there is anything in the material presented to the sentencing judge or to which we have been referred which would suggest that anything other than the usual amount of disruption, anxiety and concern will be experienced within this family unit by the prison sentence imposed on the applicant …. Neither is it to deny that the presence of young dependants is not a factor that must be taken into account in every case … However, I think also that the Court cannot ignore that this was an offence involving premeditation and wilfulness and a persistent course of conduct of a very serious kind. The applicant must have known that she and her de facto husband, ie, the other 'parent', risked lengthy imprisonment should they be caught. Nevertheless, she involved herself in this criminal conduct … This was not a thoughtless, impulsive spur of the moment crime in which there was no time or opportunity to consider the consequences to the children should the parents be caught. Having regard for these features of the case, the Court must be less influenced by considerations of mercy towards the applicant that might otherwise have been the case.
When the prison sentence is unexceptional on every other consideration, especially general deterrence and protection of society, there is much less room to be merciful out of regard for hardship to family and dependants in serious crimes involving a definite degree of premeditation and wilfulness: Wirth [1976] 14 SASR 291 especially at 296:
(Page 7)
- Plainly, the personal circumstances of the applicant and her dependants does not, and could not, diminish the seriousness of the crime itself. It seems to me that where the crime is of a kind as regards which the predominant sentencing consideration is general deterrence, the circumstances of the dependants must be truly exceptional before compassion for them can have any worthwhile effect on sentence."
8 I would endorse and emphasise, with respect, these comments. Mrs Stellitano and Mrs Ottobrino had four years of constant offending in which to reflect on what a prison sentence would do to their children. Nevertheless, they persisted in their criminal conduct. In these circumstances, I regard with scepticism the attempt made by them to have their prison sentences reduced because of concern about their children's welfare.
9 There were several aggravating features in the offences Mrs Stellitano and Mrs Ottobrino committed. These included the large number of offences, the length of time over which they were committed, the large amount of money stolen, the breach of trust and abuse of power that was integral to their conduct, the calculated and systematic manner of offending, the attempts to conceal the offences, the difficulty in the detection of the offences, the benefits derived by them and the fact that the money stolen was not refunded. Additionally, although it is said that Mrs Stellitano and Mrs Ottobrino are now filled with remorse, this is not a case where they pleaded guilty. There was a long trial where they asserted their innocence. It was only in the course of the sentencing process that some form of true remorse was displayed.
10 I accept the submission made by counsel for the appellant that sentences of between 3 years and 10 years of imprisonment are standard for offences of the kind committed by the respondents: see Mann v R, unreported; CCA SCt of WA; Library No 950338; 14 June 1995, R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997, Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996, R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996, R v Wilkinson (1996) 85 A Crim R 353, Stockbridge v R, unreported; CCA SCt of WA; Library No 6798; 23 July 1987, Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993. In my view, having regard to all the circumstances I have mentioned, a term of imprisonment in the region of five to six years imprisonment would have been warranted at first instance. In my opinion,
(Page 9)
(Page 8)
- the sentences in fact imposed by the learned sentencing Judge were seriously inadequate.
11 In my view, the appeals should have been upheld. There is a difference between the criminality of the two respondents. As I have mentioned, Mrs Stellitano was convicted of 84 counts of stealing and the total of the money stolen by her was $284,500. Mrs Ottobrino was convicted of 51 counts of stealing and the total stolen by her was $194,500. Taking into account that these are Crown appeals I consider that the sentences imposed by the learned sentencing Judge should have been set aside and a sentence of 4 years and 6 months' imprisonment imposed on Mrs Stellitano and 4 years' imprisonment should have been imposed on Mrs Ottobrino.
12 WALLWORK J: These are reasons for judgment after the hearing of two Crown appeals against sentences of imprisonment which were imposed upon the respondents, Mrs Stellitano and Mrs Ottobrino by a Judge in the District Court at Perth on 27 January 1999. At the conclusion of the hearing of the appeals and by a majority, the Court dismissed both of the appeals.
13 The two respondents had both been convicted of stealing sums of money from a company with which some of their family members were involved. Mrs Stellitano was convicted of 84 counts of stealing. Mrs Ottobrino was convicted of 51 counts of stealing. In Mrs Stellitano's case, the offences were committed between 20 February 1991 and 6 January 1995. Mrs Ottobrino's offences were committed between 17 April 1991 and 6 January 1995. The total sum of money involved in Mrs Stellitano's offences was approximately $284,500 and in Mrs Ottobrino's case, $194,500.
14 The two respondents had been convicted after a trial. Having considered the facts which had been revealed in the trial and also representations which had been made to him by prosecuting and defence counsel, the learned Judge came to the conclusion that a sentence of imprisonment was the only sentence which was appropriate in each case. His Honour formed the view that the seriousness of the conduct in each case was such, particularly considering the need for general deterrence, that the sentences of imprisonment could not be suspended. He took the view that Mrs Ottobrino, who had been convicted of 32 fewer counts than Mrs Stellitano had a lesser culpability, because apart from the lesser number of offences, she had not been an employee of the company from which the money had been stolen. Neither had she been involved in its
(Page 10)
- operations. At the relevant time Mrs Ottobrino had worked for a bank and had assisted in banking the stolen money.
15 His Honour sentenced Mrs Stellitano to a total effective sentence of 2 years imprisonment by sentencing her to 12 months imprisonment on count 1 on the indictment and 12 months imprisonment to be served cumulatively on count 2 on the indictment. On each of the other offences his Honour imposed a sentence of 12 months imprisonment. He ordered that these sentences be served concurrently with the first sentence.
16 His Honour sentenced Mrs Ottobrino to an effective sentence of 18 months imprisonment. He did that by sentencing Mrs Ottobrino to 12 months imprisonment on one count in the indictment and 6 months imprisonment to be served cumulatively on another count in the indictment. With respect to the remaining offences, his Honour sentenced Mrs Ottobrino to 12 months imprisonment for each offence, with the sentences to be served concurrently with the first sentence.
17 Both of the respondents were made eligible for parole.
18 The learned trial Judge was faced with unusual problems when arriving at the sentences in this matter. The first was that the two respondents were sisters of one of the directors of the company from which the money was stolen. Mrs Stellitano, was also the wife of another director. In both cases the money taken was used for the purposes of the respondents' families. It had been placed in bank accounts belonging to family members. A second problem was that both the respondents were mothers of young children. Mrs Stellitano was the mother of three young children aged 8 , 6 and 4 years respectively. Mrs Ottobrino had two children aged 11 and 6 years respectively.
19 There has been much learned writing in recent years concerning the effect on young children's welfare of sending their mothers to prison, particularly for extended periods - see the joint judgment of Malcolm CJ, Kennedy and Ipp JJ in R v Jeffree, unreported; CCA SCt of WA; Library 980150; 6 April 1998, at 14 to 16 where some relevant authorities are discussed; - see also Time Magazine Special Report, February 3, 1997 "Fertile Minds"; New South Wales Parliamentary Standing Committee Recommendations on Social Issues, which reported that in New South Wales, children had been overlooked at all stages of their parents' involvement in the criminal justice system - "The West Australian Newspaper", 6 August 1998.
(Page 11)
20 The principles applicable to an appeal by the Crown against sentence are well settled. In R v Peterson [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 - 388 where referring to Harris v The Queen (1954) 90 CLR 652; Kovac v The Queen (1977) 15 ALR 637; and Cransen v The King(1936) 55 CLR 508 at 519 - 520, the learned High Court Justices said:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King (1913) 16 CLR 336 at 339-340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293).
Although an error affecting the sentence must appear before the appellate court will interfere in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration': per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal': per Isaacs J, Whittaker v The King at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
21 The principles have been re-stated by the High Court in Malvaso v The Queen(1989) 168 CLR 227 at 233 - 235; and Everett v The Queen (1994) 181 CLR 295 at 299 - 300. See also Allpass (1994) 72 A Crim R 561 at 562 - 563 and 565 - 567; R v Clark [1996] 2 VR 520 at 522 - 523; and R v O'Rourke [1997] 1 VR 246 at 251.
22 In this case the submission for the Crown was that the sentences were so inadequate as to manifest error on the part of the learned Judge.
(Page 12)
- This was said to be so because the offences had involved a breach of trust in situations where general deterrence was most important. It was submitted that the sentences had failed to reflect the various features which courts have traditionally taken into account when assessing the seriousness of the nature of the offences. It was said that in this case the number of offences were very high. There had been a breach of trust involved by both respondents and the falsification of documents by both respondents. It was submitted that these types of offences traditionally are almost inevitably dealt with by substantial terms of imprisonment. That the most significant aspect of sentencing for these sorts of offences is the element of general deterrence. That people who commit these types of offences are often people of otherwise excellent character. That is why they are in the position of authority which enables them to commit the offences.
23 It was submitted for the appellant that the learned sentencing Judge had placed too much weight on the respondents' antecedents and too little weight on the aspect of general deterrence. The offences had represented a persistent demonstration of fraud over a significant period of time.
24 In this matter, although the prosecution could not point to any evidence of shareholders who had claimed a loss, it seems obvious that Mr Lombardo, would have suffered a loss, as Mr Lombardo's interests held 51 per cent of the shares in the company from which the money was taken. The evidence at the trial did not reveal the details of the losses suffered by particular persons. In the words of counsel for the appellant, the evidence was very "scanty" on that. 49 per cent of the shares in the company were distributed across the Stellitano and Princi families. Mr Joe Princi, the brother of both the respondents was one of the directors. Another director was Mr Stellitano, the husband of Mrs Stellitano. Counsel for the respondents told the court that his instructions were that Mr Stellitano and Mr Princi owned 45 per cent of the company which was not owned by Mr Lombardo's interests.
25 Mr Lombardo had sold part of his interest in the company prior to the thefts coming to light. Afterwards, he sold the remainder of his interests for $70,000. At that time he knew of the defalcations. Mr Lombardo later provided a written reference for Mrs Stellitano. He said that he would not like to see her go to gaol.
26 At the hearing of these appeals it was submitted for the respondents that there had been no evidence that the company had been in any danger
(Page 13)
- of liquidation or that any creditor had been in any way prejudiced by the thefts. That the company was still a going concern.
27 At the time these appeals were heard on 14 July 1999, Mrs Ottobrino was due to be released on parole within 14 days. Mrs Stellitano was due for release on 24 September 1999. The notice of the Crown appeal had been filed on 19 February 1999.
28 A reading of his Honour's sentencing remarks reveals that he was fully appreciative of the background and general circumstances of these offences. His Honour succinctly set out how the offences had been committed. It was not contended by the appellant that his Honour had erred in any way in his appreciation of the facts. He did not place great weight on the proposition that Mr Lombardo had been satisfied after his remaining shares had been purchased. He said that the purchase was not in his view equivalent to funds being repaid to their owner and the circumstances had made it very difficult to measure the credit to be given to that factor, although he would take it into account to a limited extent.
29 His Honour was under no illusion as to the systematic course of conduct which had been involved in the relevant thefts. He commented on the silence surrounding the circumstances of the offences and the deceit involved in the carrying out of each offence. His Honour dealt with the part each of the respondents had played in the offences.
30 The learned Judge referred to the personal circumstances of the respondents and to the references which had been tendered on behalf of them both, which spoke highly of their characters apart from these offences. It had been suggested to his Honour that he should suspend any terms of imprisonment imposed, having regard to the respondents' personal circumstances and family positions. However, his Honour said:
"… the seriousness of your conduct in each case is such that, particularly given what I consider is a need for general deterrence, having regard to the nature of the thefts, that only sentences of imprisonment to be immediately served can be justified in each case."
31 The learned Judge said that Mrs Ottobrino had a lesser culpability as she had not been an employee of the company concerned, nor involved in its operations. She had played her part in the offences by processing the deposits through the bank at which she was employed. He said that he intended to take into account the undoubted effect on each of the young children of their mother serving a sentence of imprisonment. He also took
(Page 14)
- into account the respondents' otherwise exemplary conduct within the community and the absence of any need for personal deterrence, about which he was satisfied. He took into account the extent of the roles played by each of the respondents.
32 In DPP v Carter (1998) 1 VR 601 at 607 it was said:
"If an appellate court can discern a sound basis for the exercise of the sentencing Judge's discretion, it should be slow to interfere with the exercise of that discretion on a Crown appeal."
33 In R v Janine Wilson, unreported; SCt of WA; Library No 7325; 20 October 1998 at 4 - 5 it was said:
"… there is a strong presumption in favour of the correctness of the decision appealed from."
34 A relevant factor in this matter is that neither of the two respondents were directors of the company from which the money was stolen. It may be that his Honour gave some weight to the fact that the respondents may not have been the instigators of the offences. It is obvious that he gave great weight to the fact that there were young children who would be affected by the sentences. There was nothing wrong with that.
35 In DPP v Carter (supra) at 607, Winneke P said:
"The remarks of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-13 are apposite:
'[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case….'"
37 In the present case there were some very unusual circumstances which have been referred to earlier in these reasons. I was in no way
persuaded that the learned Judge had made any error in the sentencing process. That is why I agreed that the appeals should be dismissed.
38 ANDERSON J: My reasons for deciding, at the conclusion of the hearing of these appeals on 14 July last, that both appeals should be dismissed are fully expressed in the reasons for judgment of Wallwork J which I have had the benefit of reading in draft. There is nothing I can usefully add to those reasons.
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