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Sigalla v The Queen (No 2)

Sigalla v The Queen (No 2)

Case [2021] NSWCCA 151 7 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sigalla v R (No 2) [2021] NSWCCA 151
Hearing dates: On the papers
Date of orders: 07 July 2021
Decision date: 07 July 2021
Before: Hoeben CJ at CL
Brereton JA
Cavanagh J
Decision:
Leave to make an application under (NSW) Criminal Appeal Rules 1952, r 50C, refused.

Catchwords:
JUDGMENTS AND ORDERS – Court of Criminal Appeal – Application for leave to re-open – Principles governing – Whether failure to consider ground of appeal – Whether various misapprehensions of fact and law – No slip, oversight, or misapprehension identified – Attempt to reargue appeal on grounds not previously advanced – Whether Kentwell error – Leave refused
SENTENCING – Appeal against sentence – Role of appellate court – Re-exercising the sentencing discretion afresh – Adopting findings of primary judge – Effect of Kentwell v The Queen

Legislation Cited:
(CTH) Corporations Act 2001, s 184(2)(a)
(CTH) Crimes Act 1914, s 16A
(NSW) Criminal Appeal Rules 1952, rr 4, 50C
(NSW) Supreme Court (Criminal Appeal) Rules 2021, r 5.4

Cases Cited:
Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
Application of Ainsley Whitney [2020] NSWCCA 146
Application of Malcolm Potier (No 3) [2015] NSWCCA 306
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Baghdadi v R (No 2) [2012] NSWCCA 77
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Corliss v R (No 2) [2020] NSWCCA 180
Dickson v R (No 2) [2018] NSWCCA 183
El Ali v R (No 2) [2019] NSWCCA 289
Elliot v The Queen (2007) 234 CLR 38; [2007] HCA 51
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Miller v R (No 2) (2016) 260 A Crim R 554; [2016] NSWCCA 158
RO v R [2019] NSWCCA 183
Sigalla v R [2021] NSWCCA 22
Simmons v R (No 2) [2020] NSWCCA 29
Turnbull v R [2019] NSWCCA 97

Category: Consequential orders
Parties: Andrew John Sigalla (Applicant)
Crown (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
T McDonald SC, T Epstein (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/151155; 2013/355116
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 52

Date of Decision:

10 February 2017

Before:

Adamson J

File Number(s):

2013/151155; 2013/355116

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a jury trial in the Supreme Court, the applicant, Mr Sigalla, was convicted of 24 counts of dishonestly using his position as a director with intent to gain a benefit for himself or a third party, contrary to Corporations Act 2001 (Cth), s 184(2)(a). He was sentenced to ten years’ imprisonment, with a non-parole period of six years. He appealed against his convictions and sentence to the Court of Criminal Appeal, and while his conviction appeal was dismissed, his sentence appeal was…

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 Sigalla v The Queen (No 2)

Details

AGLC: Sigalla v The Queen (No 2) [2021] NSWCCA 151
Case: [2021] NSWCCA 151
Decision Date: 07 July 2021

CaseChat Overview and Summary

In this case, the appellant, Sigalla, sought leave to reopen his appeal against his conviction and sentence. The appeal was heard by the Court of Criminal Appeal of New South Wales. The appellant argued that the Court had made several errors in its previous consideration of his appeal, and that these errors amounted to a misapprehension of fact and law. The central issue before the Court was whether the appellant had demonstrated grounds sufficient to warrant the reopening of his appeal.

The Court considered the principles governing applications to reopen appeals, including the requirement that the appellant must demonstrate a slip, oversight, or misapprehension of fact or law on the part of the Court. The Court found that the appellant had not identified any such error and was instead attempting to reargue his appeal on grounds that had not been previously advanced. The Court also examined the case of Kentwell v The Queen, which sets out the circumstances in which leave to reopen an appeal may be granted. The Court concluded that the appellant's application did not meet the requirements for leave to reopen his appeal.

As a result of the Court's decision, the appellant's application for leave to reopen his appeal was dismissed. The Court emphasised that the role of the appellate court in sentencing appeals is to review the sentence imposed by the primary judge, not to re-exercise the sentencing discretion afresh. The Court adopted the findings of the primary judge and found no error in the sentence imposed. The Court also noted that the principles set out in Kentwell v The Queen did not apply in this case, as the appellant had not demonstrated any error on the part of the Court. The final orders of the Court were that the appellant's application for leave to reopen his appeal be dismissed, and that the original conviction and sentence be upheld.

Orders