Regina v Issaac - [2005] NSWCCA 86

CITATION:
Regina v Issaac [2005] NSWCCA 86

HEARING DATE(S): 16/3/05

JUDGMENT DATE:

16 March 2005

JUDGMENT OF:
Wood CJ at CL at 1; Adams J at 51; Bell J at 2

DECISION:
Application for leave to appeal granted ; Appeal dismissed

LEGISLATION CITED:

Bankruptcy Act 1966
Crimes Act 1914
Criminal Code 1995

CASES CITED:
R v Gallagher (1991) 23 NSWLR 220
Regina v Purdon (unreported) CCA 27 March 1997
Regina v Winchester (1992) 58 ACR 345

PARTIES:
Zaia Issaac (Applicant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2004/3099

COUNSEL:
I McClintock SC (Applicant)
G Walsh (Crown)

SOLICITORS:
Hanby & Associates Lawyers (Applicant)
Commonwealth DPP (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0247

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

3309/04

WOOD CJ at CL
ADAMS J
BELL J
WEDNESDAY 16 MARCH 2005

Regina v Zaia Isaac

Judgment

1 WOOD CJ AT CL: The court is in a position to deal with the matter now and I will ask Bell J to deliver the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 21 May 2004. The applicant pleaded guilty in the Local Court to five Commonwealth offences. There was a defect in the committal document and he was arraigned on an indictment in the District Court charging him with the same five offences to which he pleaded guilty.

3 The first count charged the applicant that between 13 July 2001 and about 30 September 2003 he did, by a deception, dishonestly obtain a financial advantage, the Newstart Allowance, in the name of Zakaria Benjamin, from the Commonwealth Services Delivery Agency, to which he was not entitled because he was employed by and in receipt of income from Diagnostic Laboratories Pty Limited until 2 May 2002 and by the Gribbles Group from 3 May 2002. This is an offence provided by s 134.2(1) of the Criminal Code 1995. The maximum penalty for this offence is ten years imprisonment and/or a fine of $66,000.

4 The second count charged the applicant that on or about 12 March 2001 at Sydney, being an undischarged bankrupt he obtained credit to the extent of $20,702 from Esanda Finance Corporation without informing it that he was an undischarged bankrupt. This is an offence provided by s 269(1)(a) of the Bankruptcy Act 1966. The maximum penalty for this offence is imprisonment for a period not exceeding three years and/or a fine not exceeding $19,800 or both.

5 The third count charged the applicant that on or about 24 May 2000 at Sydney, being a time after the presentation of a petition on which he became a bankrupt, he did obtain credit by fraud, to wit, $3,000 from Australian Guarantee Corporation Limited (“AGC”) using the name Zakaria Benjamin and representing to AGC that he had not been known by any other name and was not an undischarged bankrupt. This is an offence provided by s 265(5)(b) of the

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 Issaac

Details

AGLC: Regina v Issaac [2005] NSWCCA 86
Case: [2005] NSWCCA 86
Decision Date: 16 March 2005

CaseChat Overview and Summary

Zaia Issaac applied for leave to appeal against the severity of sentences imposed by the District Court. Issaac had pleaded guilty to five Commonwealth offences, including obtaining a financial advantage by deception and obtaining credit while being an undischarged bankrupt. The District Court sentenced Issaac to two and a half years imprisonment for the deception offence, and concurrent fixed term sentences of imprisonment for the bankruptcy offences. Issaac challenged the sentences on three grounds, arguing that the District Court erred in failing to sufficiently weigh his pleas of guilty, mischaracterising the criminality in relation to two of the offences, and imposing a manifestly excessive sentence. The Court of Criminal Appeal considered each ground in turn. In relation to the first ground, the Court found that the District Court had appropriately considered the pleas of guilty and applied a discount, and there was no error in failing to quantify the degree of the applicant's remorse. As for the second ground, the Court found that the District Court correctly characterised the criminality of the offences and there was no error in the calculation of the total loss. Finally, regarding the third ground, the Court held that the sentence imposed was within the range of sound discretion, taking into account the objective seriousness of the offences and the applicant's favourable subjective circumstances. The Court granted leave to appeal but dismissed the appeal, upholding the sentences imposed by the District Court.

Orders