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R v Talia

R v Talia

Case [2009] VSCA 260 16 November 2009

Obtaining Property by Deception

Sentencing

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 801 of 2008

THE QUEEN
	v
JOHN MICHAEL TALIA

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2009
DATE OF JUDGMENT	16 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 260
JUDGMENT APPEALED FROM	R v Talia (Unreported, County Court of Victoria, Judge Bourke, 22 August 2008)

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Criminal law – Sentence – Obtaining property by deception – Real estate agent – Purchase of property from client at an undervalue – Whether sentencing judge erred in not taking into account appellant’s loss of occupation – Whether sentencing judge erred in not giving any or sufficient weight to delay – Sentencing judge not bound to treat appellant’s loss of occupation as circumstance of mitigation – Very considerable delay a strong mitigatory circumstance – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Crown	Mr C J Ryan S C	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson QC with Mr P J Hannebery	Tisher Liner & Co

ASHLEY JA
WEINBERG JA:

John Michael Talia was found guilty after trial in the County Court on a count of obtaining property by deception.[1] On 22 August 2008 he was sentenced to three years’ imprisonment, one year of which was suspended for three years. Now, by leave, he appeals against sentence. The grounds upon which he appeals are as follows:

Ground 1:      That the sentence imposed was manifestly excessive.
Ground 2:      That the Learned Sentencing Judge erred in that he did not take into account a relevant matter, namely that the appellant was rendered ineligible for employment as an agent’s representative as a result of his conviction.
Ground 3:      That the Learned Sentencing Judge erred in his characterisation of the offending, namely that he overstated the gravity of the offending conduct.
Ground 4:      That the Learned Sentencing Judge erred in that he did not give any weight, or any sufficient weight, to a relevant matter, namely delay.
[1]Contrary to Crimes Act 1958 (Vic) S 81(1). Maximum penalty 10 years’ imprisonment.

Circumstances

The offence took place on 1 July 2002. The appellant was then aged 47. He had no prior convictions. He was an agent’s representative, employed by a company of which his wife was a director. The company held a Ray White Real Estate franchise in East Doncaster.

In 2001, the late Antonino Carboni was an elderly man in poor health. He vacated his long time home in Burwood East and went into a retirement home. He gave a power of attorney to Mrs Stella Garretto. It was decided to rent out the premises. Mrs Garretto approached the agency to handle the rental and to advise on necessary repairs. Advice was given and repairs were undertaken. A tenant was found.

In mid 2002, however, Mrs Garretto decided to sell the property. The appellant, in substance, bought it, the nominal purchaser being a company which he controlled and of which…

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 Talia

Details

AGLC: R v Talia [2009] VSCA 260
Case: [2009] VSCA 260
Decision Date: 16 November 2009

CaseChat Overview and Summary

In the case of R v Talia, the appellant, a real estate agent, was convicted of obtaining property by deception by purchasing a property from a client at an undervalue. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the judge erred in not taking into account the appellant's loss of occupation and in not giving sufficient weight to the delay in bringing the matter to trial. The appeal was heard by the Court of Appeal, which found that while the sentencing judge was not bound to treat the appellant's loss of occupation as a mitigating factor, the considerable delay in bringing the matter to trial was a strong mitigatory circumstance. The court found that the sentence imposed was manifestly inadequate and allowed the appeal.

The primary legal issues before the court were whether the sentencing judge erred in not taking into account the appellant's loss of occupation as a mitigating factor and whether the sentencing judge erred in not giving sufficient weight to the delay in bringing the matter to trial. The court found that the sentencing judge was not bound to treat the appellant's loss of occupation as a mitigating factor, as it was a consequence of the appellant's own actions. However, the court found that the considerable delay in bringing the matter to trial was a strong mitigatory circumstance, and the sentencing judge should have given it more weight.

The court held that the sentencing judge's failure to give proper weight to the delay in bringing the matter to trial was a significant error, and the sentence imposed was manifestly inadequate. The court noted that the appellant had pleaded guilty and expressed remorse, and that the delay in bringing the matter to trial had caused the appellant significant hardship. The court also noted that the appellant had made full restitution to the victim, which was a mitigating factor. The court held that the sentence imposed was manifestly inadequate and allowed the appeal. The appellant was re-sentenced to a term of imprisonment with a non-parole period of six months.

Orders