R v TOMAIUOLO - [2007] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TOMAIUOLO
[2007] SASC 34
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
6 February 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty to four counts of forgery contrary to s 235 of the Criminal Law Consolidation Act 1935 and four counts of uttering under the Common Law - for these offences, the appellant was sentenced to three years imprisonment with a twenty one month non-parole period - the appellant also pleaded guilty to five counts of making a false statement contrary to s 1308(2) of the Corporations Act 2001 and to one count of acting in contravention of a disqualification from managing a corporation, contrary to s 206A(1)(b) of the Corporations Act 2001 - for the offences contrary to s 1308(2) of the Corporations Act 2001 the appellant was sentenced to two weeks imprisonment for each offence, and for the offence contrary to s 206A(1)(b) the appellant was sentenced to three months imprisonment - the appellant argued that the sentences were manifestly excessive and the factual findings upon which he was sentenced were incorrect - appeal dismissed - held, the sentence imposed for contravening s 235 of the Criminal Law Consolidation Act 1935 and for the offences of uttering were within the range of penalties for these offences considering the planned, premeditated and repeated nature of offending and the sentences imposed for contravening s 1308(2) and s 206A(1)(b) of the Corporations Act 2001 were well within the sentencing discretion of the sentencing court given the appellant's conduct and antecedents.
Criminal Law Consolidation Act 1935 s 235; Corporations Act 2001 (Cth) s 1308(2), s206A(1)(b); Criminal Law (Sentencing) Act 1988 s 18A; Crimes Act 1914 (Cth) s 4J(2), s 19(1)(b), referred to.
R v Davies (1996) 88 A Crim R 226; R v DuBois (2004) 88 SASR 304; R v Cavanagh [1999] SASC 418; R v Suri [2004] SASC 80, considered.

R v TOMAIUOLO
[2007] SASC 34
Court of Criminal Appeal: Doyle CJ, Debelle and Sulan JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Sulan J.
DEBELLE J: I agree with the substance of the reasons of Sulan J. I too would dismiss the appeal. The sentence was in all the circumstances very fair, if not merciful, particularly as the appellant’s victims were often unsophisticated and vulnerable. While the amounts involved were not unduly large, there is a need for general as well as personal deterrence when sentencing for offending of this kind. The errors to which the appellant pointed were not of a kind which requires this Court to interfere with the sentence, which was well within the bounds of a proper sentence for this…

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 TOMAIUOLO

Details

AGLC: R v TOMAIUOLO [2007] SASC 34
Case: [2007] SASC 34
Decision Date: 6 February 2007

CaseChat Overview and Summary

In the case of R v TOMAIULO, the appellant was convicted and sentenced for various offences, including forgery, uttering, making false statements, and acting in contravention of a disqualification from managing a corporation. The appellant challenged the severity of his sentences, arguing that they were manifestly excessive and based on incorrect factual findings. The appeal was heard and subsequently dismissed by the court.

The legal issues before the court were whether the sentences imposed by the trial judge were manifestly excessive and whether there were errors in the factual findings that led to the sentencing. The court had to consider the nature and extent of the appellant's offending, as well as the appropriate range of penalties for the offences committed.

The court found that the sentences imposed for the offences under the Criminal Law Consolidation Act 1935 and the Corporations Act 2001 were within the range of penalties for these offences, given the planned, premeditated, and repeated nature of the offending. The court also noted that the sentences for the Corporations Act offences were well within the sentencing discretion of the trial judge, considering the appellant's conduct and antecedents. The court concluded that the overall sentence and non-parole period were appropriate in the circumstances, and therefore dismissed the appeal.

No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

The grounds upon which the appellant appeals are that the Judge made errors regarding the factual circumstances relevant to the offences, and that the sentences imposed were manifestly excessive.Background facts The State offences relate to four occasions on which the appellant forged and uttered a statutory declaration to support an application for a bank loan. The appellant was the sole director of two companies, Tommy Nominees Pty Ltd (“TNL”) and Power Marketing Options Pty Ltd (“PMO”). The companies dealt in real estate and provided financial brokering services. The appellant had met and become friends with a Mr John Silcock, who wanted to purchase a property. In mid-November 2001, PMO contracted to buy a property at 17 Third Avenue, Ascot Park, for a sum of $145,000. The contract was signed in the name of PMO and/or Nominees. The appellant persuaded Silcock that the property was a good investment and Silcock, therefore, agreed to purchase it. Silcock did not have sufficient funds. The appellant informed him that he would arrange the finance. The appellant had suggested to Silcock that Silcock subdivide the property and, from the proceeds of sale of the subdivision, they would share any profit between them equally. A loan application was made by Silcock to the Commonwealth Bank of Australia (“the CBA”) in Melbourne on 19 November 2001. The appellant completed a loan application form seeking a loan of $169,200.00 which was then signed by Silcock. The property had been sold by PMO to Silcock for an amount of $169,000. The loan application indicated that the property was being purchased by Silcock through Greenwith Real Estate. That representation was false. The application also stipulated an inflated purchase price of $211,500, and that no contract had been signed and no formal settlement date existed. The application indicated that the purchase of the property by Silcock would be partly financed by a gift of $52,000. These statements were false. On 5 December 2001, the appellant presented a contract for the purchase of the property for $211,500, to Silcock, who signed it. The appellant informed Silcock that, although he would only be paying $169,000 for the property, it was necessary for the bank that the contract stated that the purchase price was $211,500. Silcock, who did not have any background in commercial dealings, accepted the appellant’s representation that what was occurring was acceptable. The appellant forged a statutory declaration in the names of Bernard and Joyce Withers, indicating that they had agreed to provide Silcock with a non-repayable gift of a minimum of $42,000, plus all government fees and the cost of searches for the purchase of the property. This document was a forgery. Silcock did not know any people by the name of Bernard and Joyce Withers. The address on the statutory declaration was false. The document was submitted to the CBA, which approved the application on 19 December 2001. The bank would not have approved the loan had it known the correct contract price. The lending guidelines of the CBA did not permit a loan to be given for an amount which exceeded 80 per cent of the purchase price.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It cannot be said that a sentence of imprisonment for these offences is manifestly excessive. A sentence of two weeks’ imprisonment was well within the sentencing range for these offences. Imprisonment for these offences is not common but is appropriate in some cases, of which this is one.Conclusion The overall sentence and non-parole period were appropriate in the circumstances. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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