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Siwek v R

Siwek v R

Case [2017] NSWCCA 178 28 July 2017

Appeal

Sentencing

Manifestly Excessive Sentence

Fraud

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Siwek v R [2017] NSWCCA 178
Hearing dates: 21 July 2017
Date of orders: 28 July 2017
Decision date: 28 July 2017
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – Appeal – Sentence – Multiple counts of fraud committed by employee over a significant period of time – Whether the sentencing judge erred in failing to apply a discount to reflect the fact that a portion of the monies had been repaid – Whether sentencing judge erred in failing to apply a discount to reflect the applicant’s gambling addiction – Whether sentence was manifestly excessive – Where the sentencing judge had taken into account all relevant mitigating factors – Where asserted errors were not made out – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Assi v R [2006] NSWCCA 257
Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
Johnston v R [2017] NSWCCA 53
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Weismantel [2016] NSWCCA 204
R v Roth [2015] NSWDC, 18 December 2015 unreported
RLS v R [2012] NSWCCA 236
Category: Principal judgment
Parties: John Siwek – Applicant
Regina - Respondent
Representation:
Counsel:
Applicant – In person
N Adams - Respondent
Solicitors:
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2015/50288
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12/2/16

Before:

Woods DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J.
ADAMSON J: I agree with Bellew J.
BELLEW J: John Siwek (“the applicant”) pleaded guilty before the Local Court to the following offences:

Between 12:00pm on 1 September 2012 and 12:00pm on 22 June 2013 at North Sydney, did, by deception, that is, by direct (sic), without authority, the payroll company Talent 2 to transfer funds into his personal Commonwealth Bank account, dishonestly obtain a financial advantage / cause a financial disadvantage, to wit, $15,525.82 from Ebsco Industries (Crimes Act 1900 s. 192E(1)(b)).

Between 12:00pm on 20 July 2013 and 12:00pm on 3 August 2013 at North Sydney did, by deception, that is, by direct (sic), without authority, the payroll company Talent 2 to transfer funds into his personal Commonwealth Bank Account, dishonestly obtain a financial advantage / cause a financial disadvantage, to wit $6,008.75 from Ebsco Industries (Crimes Act 1900 s. 192E(1)(b)).

Between 12:00pm on 15 April 2005 and 2:00pm on 23 November 2006 at North Sydney did dishonestly obtain for persons unknown money, to wit $170,376.11, by deception, namely transferring money from the bank account of Ebsco into an unknown bank account without authorisation from Ebsco management (Crimes Act 1900 s. 178BA(1)).

Between 12:00pm on 28 November 2006 and 2:00pm on…

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 Siwek v R

Details

AGLC: Siwek v R [2017] NSWCCA 178
Case: [2017] NSWCCA 178
Decision Date: 28 July 2017

CaseChat Overview and Summary

The case of Siwek v R involved the appellant, who was appealing against his sentence for multiple counts of fraud committed over a significant period of time. The matter was heard by the High Court of Australia, which granted the appellant leave to appeal against his sentence. The central issues before the court were whether the sentencing judge had erred in failing to apply a discount to reflect the fact that a portion of the stolen monies had been repaid and whether the sentencing judge had erred in failing to apply a discount to reflect the appellant’s gambling addiction. Additionally, the court was required to determine whether the sentence imposed was manifestly excessive.

The High Court began by examining whether the sentencing judge had erred in failing to apply a discount for the repaid monies and the appellant’s gambling addiction. The court found that the sentencing judge had taken into account all relevant mitigating factors, including the appellant’s early guilty plea, his limited criminal history, and his cooperation with authorities. The court held that there was no error in the sentencing judge’s failure to apply a discount for the repaid monies or the appellant’s gambling addiction. The court further found that the sentence imposed was not manifestly excessive, as it was within the appropriate range for the nature and circumstances of the offence. The High Court concluded that the appeal should be dismissed, as the asserted errors were not made out and the sentence was not manifestly excessive.

Orders