R v Aliperti [2000] NSWCCA 315

R v Aliperti [2000] NSWCCA 315

The sentencing discretion miscarried because the sentencing judge did not have regard to the relevant factor of delay of approximately seven years between the offences coming to the notice of the authorities and sentencing, where a number of delays were not attributable to the applicant. Although the offences were objectively serious dishonesty offences committed by a solicitor in breach of client trust and full-time imprisonment was required, re-sentencing was necessary and a sentence of four years imprisonment with a non-parole period of three years was appropriate.

Jurisdiction
Australia
Judgment Date
09 August 2000
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Appeal allowed; leave to appeal granted; applicant re-sentenced to four years imprisonment with a non-parole period of three years.
Legal Topics
['dishonestly Obtaining a Valuable Thing by Deception' 'fraudulently Omitting to Account' 'delay Before Sentencing' 'breach of Trust by Solicitor' 'manifestly Excessive Sentence']
['criminal Law' 'sentencing'] ['dishonestly Obtaining a Valuable Thing by Deception' 'fraudulently Omitting to Account' 'delay Before Sentencing' 'breach of Trust by Solicitor' 'manifestly Excessive Sentence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by accepting or being influenced by an unsupported assertion that total defalcations were $1.4 million.' 'Whether the sentencing judge erred in finding that the deceptions occurred over a considerable period of time.' 'Whether the sentencing judge sentenced on the basis that no money had been repaid.' 'Whether the sentencing judge failed to consider whether a penalty other than full-time imprisonment was appropriate.' 'Whether the sentencing judge failed to take into account delay of approximately seven years between the offences coming to notice and sentencing.' 'Whether the sentence imposed was excessive and what sentence should be imposed on re-sentencing.']

Ratio Decidendi

The sentencing discretion miscarried because the sentencing judge did not have regard to the relevant factor of delay of approximately seven years between the offences coming to the notice of the authorities and sentencing, where a number of delays were not attributable to the applicant. Although the offences were objectively serious dishonesty offences committed by a solicitor in breach of client trust and full-time imprisonment was required, re-sentencing was necessary and a sentence of four years imprisonment with a non-parole period of three years was appropriate.

Court Disposition

Appeal allowed; leave to appeal granted; applicant re-sentenced to four years imprisonment with a non-parole period of three years.

Orders

  • ['Sentence of imprisonment for four years imposed.' 'No special circumstances found.' 'Non-parole period set at three years.' 'Sentence to commence on 5 November 1999.' 'Earliest date for release on parole fixed as 5 November 2002.']