Salvatore Arcuri v Regina

[2017] NSWDC 173

District Court

New South Wales

Medium Neutral Citation:	Salvatore Arcuri v Regina [2017] NSWDC 173
Hearing dates:	5, 6, 12 April 2017
Date of orders:	26 April 2017
Decision date:	26 April 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. Appeal against conviction allowed. 2. I set aside the conviction and the penalty imposed by the Magistrate
Catchwords:	CRIMINAL LAW – conviction appeal – elements of offence – determination of guilt – dishonestly obtain financial advantage by deception – defence – claim of right - honest belief APPEAL – conviction – not guilty – interpretation – legislative provisions – reasons of magistrate PROCEDURAL – evidence – refusal of magistrate to admit evidence - rehearing
Legislation Cited:	Crimes (Appeal and Review) Act 2001 S.18(1) Crimes Act 1900 s.192E(1)(b) Bankruptcy Act 1966 Trustee Act 1925
Cases Cited:	Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Dyason v Butterworth [2015] NSWCA 52 AG v Director of Public Prosecutions [2015] NSWCA 218 Bandana v Director of Public Prosecutions [2016] NSWCA 140 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 Fuge v R [2001] NSWCCA 208 Mahmood v Western Australia (2008) 232 CLR 397 Louizos v R (2007) 194 A Crim R 233 Watson v Foxman (1995) 49 NSWLR 315 R v Macleod (2001) 52 NSWLR 389 Park Trent Properties Group Pty Limited v Australian Securities and Investments Commission [2016] NSWCA 298
Category:	Principal judgment
Parties:	Salvatore Arcuri (Appellant) Regina (Respondent)
Representation:	Counsel: Mr Hancock (Appellant)     Solicitors: Dom Velcic & Co Pty Ltd (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/00056856
Publication restriction:	None

Judgment

1. Salvatore Arcuri (the appellant) appeals against the conviction entered by his Honour Magistrate Bartley on 21 November 2016 at the Parramatta Local Court.

2. The appellant pleaded not guilty to one count of obtain benefit by deception contrary to section 192E(1)(b) Crimes Act 1900. The appellant was convicted following a hearing that took place over more than 10 non-consecutive days.

3. The issue in the Local Court and on appeal was whether the appellant had acted dishonestly or whether there was a reasonable possibility that he was genuinely and honestly acting in accordance with a legitimate claim of right.

Facts

4. The facts of the case were largely not in dispute.

5. The appellant was an accountant practising through a firm known as Wyse & Young at Bella Vista.

6. On 23 November 2012 the appellant entered into a Personal Insolvency Agreement (PIA), pursuant to the Bankruptcy Act 1966 (formerly known as a Part X arrangement). The PIA required the appellant to pay his unsecured creditors 20 cents in the dollar and to cover the costs of his PIA Trustee, Mr Piscopo, within 12 months.

7. By late October 2013, it became apparent to the appellant that he did not have the required sum (about $679,000) to make the payment required to meet the obligations under the PIA. On 31 October 2013 the appellant asked Mr Piscopo how much…