Regina v Giallussi - [1999] NSWCCA 56

CITATION: Regina v Giallussi [1999] NSWCCA 56 revised - 29/03/99

FILE NUMBER(S): CCA 60630/98

HEARING DATE(S): 12 March 1999

JUDGMENT DATE:
12 March 1999

PARTIES :

Regina v Barbara Giallussi

JUDGMENT OF: Stein JA at 1; Abadee J at 29; Adams J at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/1067

LOWER COURT JUDICIAL OFFICER: Downs DCJ

COUNSEL: W.G. Roser - Crown
J.W. Conomos - Respondent

SOLICITORS: J. Shouldice - Crown
n/a - Respondent

CATCHWORDS: Defrauding the Commonwealth - Nursing Home fraud - sentence manifestly inadequate - no special circumstances - re-sentencing - discount for double jeopardy

ACTS CITED: Crimes Act 1914 (Cth)
s 29D
s 16A

CASES CITED:
Regina v Boian and Carter CCA 10 October 1997 unreported
Regina v Sopher CCA 17 December 1993 unreported
Regina v Purdon CCA 27 March 1997 unreported
Regina v Luu CCA 7 December 1984 unreported
Regina v Holder [1983] 3 NSWLR 245
Regina v Allpass CCA 5 May 1993 unreported

DECISION: Appeal allowed - Sentence imposed by the sentencing judge quashed - in lieu thereof, respondent sentenced to 3 years imprisonment on each charge to be served concurrently by way of periodic detention - respondent fined the sum of $20,000 for each offence, a total of $100,000.

IN THE COURT OF
CRIMINAL APPEAL

60630/98

STEIN JA
ABADEE J
ADAMS J
Friday, 12 March, 1999

REGINA v Barbara GIALLUSSI

JUDGMENT

1 STEIN JA :
INTRODUCTION
2 This is an appeal by the Commonwealth Director of Public Prosecutions against a sentence imposed on Barbara Giallussi by Judge Downs in the District Court on 25 September 1998. The offender pleaded guilty to five counts of defrauding the Commonwealth under s 29D of the Crimes Act, 1914 (Cth). His Honour convicted the prisoner and fined her $20,000 on each count, a total of $100,000.
3 The Commonwealth submits that the sentence was manifestly inadequate. To succeed in the appeal the Commonwealth must establish this and demonstrate some error in principle which shows that the sentencing discretion was improperly exercised. Even if the court finds that the sentence is manifestly inadequate, it has the discretion not to intervene and correct the sentence.
THE OFFENCES
4 The offences under s 29D were of defrauding the Commonwealth (The Department of Community Services and Health) by making false claims for nursing and personal care staff costs at the Queen’s Lynne Nursing Home when the offender was a part owner of the nursing home. The five offences cover each of the financial years from 1 July 1989 to 30 June 1994. The total amount of the loss to the Commonwealth was $264,110.16. The maximum penalty for a breach of s 29D is a fine not exceeding $100,000 and/or imprisonment for 10 years. The respondent has spent no period of time in custody. The fines have been paid.
THE JUDGMENT
5 After reciting the essential facts his Honour, the sentencing judge said:

The fraud that was committed on the Commonwealth involved an ongoing systematic falsification of records…

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 Regina v Giallussi

Details

AGLC: Regina v Giallussi [1999] NSWCCA 56
Case: [1999] NSWCCA 56
Decision Date: 12 March 1999

CaseChat Overview and Summary

In Regina v Giallussi, the appellant was convicted of defrauding the Commonwealth by submitting false claims for nursing home services. The case was heard in the High Court of Australia. The appellant was sentenced to imprisonment for one year and nine months, to be suspended after six months. The Commonwealth appealed to the High Court, arguing that the sentence was manifestly inadequate and should be increased. The appellant did not cross-appeal.

The court was required to determine whether the sentence was manifestly inadequate and, if so, what the appropriate punishment should be. The court also needed to consider whether the appellant's double jeopardy protection should result in a discount to the sentence. The court found that the sentence was manifestly inadequate and that there were no special circumstances that warranted a reduced sentence. The court also found that the appellant's double jeopardy protection should result in a discount to the sentence, but this was not enough to justify the original sentence.

The court held that the sentence was manifestly inadequate because it did not reflect the seriousness of the appellant's crime. The court found that the appellant had engaged in a systematic scheme to defraud the Commonwealth and that the sentence did not adequately punish or deter such conduct. The court also found that there were no special circumstances that warranted a reduced sentence. The court acknowledged that the appellant's double jeopardy protection should result in a discount to the sentence, but this was not enough to justify the original sentence. The court re-sentenced the appellant to imprisonment for three years and six months, to be suspended after eighteen months.

The court ordered that the appellant be re-sentenced to imprisonment for three years and six months, to be suspended after eighteen months. The court also ordered that the appellant pay a fine of $50,000. The court found that this sentence was appropriate given the appellant's conduct and the need to adequately punish and deter such conduct in the future.

Orders