Regina v Giarratano

[2000] NSWCCA 418

CITATION:	Regina v Giarratano [2000] NSWCCA 418
FILE NUMBER(S):	CCA 60488/99
HEARING DATE(S):	14/2/00
JUDGMENT DATE:	14 February 2000
PARTIES :	Regina v Anthony Giarratano
JUDGMENT OF:	Sully J at 12; Carruthers AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0969
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	No appearance - written submissions filed by Appellant L M B Lamprati (Crown/Respondent)
SOLICITORS:	No appearance S E O'Connor (Crown/Respondent)
CATCHWORDS:	Criminal law - sentence appeal - application for leave to appeal based purely on subjective grounds
LEGISLATION CITED:	Crimes Act 1900
DECISION:	Leave to appeal refused.

IN THE COURT OF
CRIMINAL APPEAL

CCA60488/99

SULLY J
CARRUTHERS AJ

Monday 14 February 2000

REGINA v Anthony GIARRATANO
JUDGMENT

1 CARRUTHERS AJ: Anthony Giarratano seeks leave to appeal against sentences imposed upon him by his Honour Judge Luland QC at the Penrith District Court on 23 July 1999. On that occasion his Honour was required to deal with six counts under s300(1) of the Crimes Act, 1900 (the ‘Act’) of making a false instrument. This offence attracts a maximum penalty of ten years penal servitude. His Honour was further required to deal with eight counts under s300(2) of the Act, of using a false instrument, which offence also attracts a maximum penalty of ten years penal servitude. 2   His Honour was then required to deal with 13 counts under s 34 of the Act, of stealing a valuable security, which offence attracts a maximum penalty of five years imprisonment. The offences were committed over the period April 1994 to November 1995. 3   His Honour was also required to take into account 57 similar matters on a Form 1. 4   In relation to the first count, his Honour imposed a minimum term of two years penal servitude, to commence on 20 July 1999 and to expire on 19 July 2001. His Honour fixed an additional term of two years to commence on 20 July 2001 and to expire on 19 July 2003. In relation to counts 2 to 14, his Honour imposed a fixed term of eighteen months penal servitude to commence on 20 July 1999 and to expire on 19 January 2001. In relation to counts 14 to 27, his Honour imposed a fixed term of twelve months penal servitude to commence on 20 July 1999 and to expire on 19 July 2000. 5   Very shortly stated, the relevant facts are that the applicant was employed by a company, Combined Shipping Services Pty Limited, as a clerk. He was required to prepare cheques for payment to the company’s creditors. He saw to it that cheques were drawn and marked “Not Negotiable” as against valid invoices. Those cheques were then presented to the appropriate officers of the company who were signatories to cheques drawn by the company. Having obtained the appropriate signature, the applicant then took the cheques to the local Commonwealth Bank, having altered numerous of them by the additional words “Petty Cash”. For some extraordinary reason, bank tellers then handed cash to the applicant, which he used for the purposes of feeding his gambling addiction. 6   The amount of money involved by these criminal episodes was $367,000. His Honour was told that that money was repaid, not surprisingly, by the Commonwealth Bank to the company, Combined Shipping Services Pty Limited. 7   To say the least, it is almost beyond belief that bank tellers paid these cheques in cash over the counter to the applicant, whether they knew him or not. How it is that this criminal conduct continued for almost two years without the company’s senior officers becoming aware of the conduct is itself beyond belief, but this is the basis upon which the applicant stood for sentence and this is the basis upon which he was sentenced. 8   On the material before his Honour, the sentences imposed were so close to the lower end of the discretionary ambit allowed to his Honour that it is surprising that they did not attract Crown appeals. However, that did not happen. 9   Mr Giarratano has not appeared before this Court. Certain explanations have been advanced as to why that is so. He said, in written submissions, that he is finding gaol hard and he is missing his wife and three young children, who mean the world to him. He has advanced submissions directed to efforts at rehabilitation which he has made during the course of his incarceration. 10   There is no material at all before this Court to indicate that his Honour took into account any matter that he should not have taken into account, or failed to give due weight to the matters which he was required to take into account. 11   The application for leave to appeal is completely without foundation and, sympathetic as one must be to the fact that the applicant is separated from his wife and three young children, it is a matter which could not possibly attract leave from this Court to appeal. Accordingly, I would propose that leave to appeal be refused. 12   SULLY J: I agree. The order will be as proposed.