Regina v Giallussi [1999] NSWCCA 56

New South Wales Court of Criminal Appeal CITATION : Regina v Giallussi [1999] NSWCCA 56 revised - 29/03/99 FILE NUMBER(S) : CCA 60630/98 HEARING DATE(S) : 12 March 1999 JUDGMENT DATE : 12 March 1999

PARTIES : Regina v Barbara Giallussi JUDGMENT OF : Stein JA at 1; Abadee J at 29; Adams J at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1067 LOWER COURT JUDICIAL OFFICER : Downs DCJ

COUNSEL : W.G. Roser - Crown J.W. Conomos - Respondent SOLICITORS : J. Shouldice - Crown n/a - Respondent CATCHWORDS : Defrauding the Commonwealth - Nursing Home fraud - sentence manifestly inadequate - no special circumstances - re-sentencing - discount for double jeopardy Crimes Act 1914 (Cth) ACTS CITED : s 29D s 16A Regina v Boian and Carter CCA 10 October 1997 unreported Regina v Sopher CCA 17 December 1993 unreported CASES CITED: Regina v Purdon CCA 27 March 1997 unreported Regina v Luu CCA 7 December 1984 unreported Regina v Holder [1983] 3 NSWLR 245 Regina v Allpass CCA 5 May 1993 unreported DECISION : Appeal allowed - Sentence imposed by the sentencing judge quashed - in lieu thereof, respondent sentenced to 3 years imprisonment on each charge to be served concurrently by way of periodic detention - respondent fined the sum of $20,000 for each offence, a total of $100,000.

IN THE COURT OF CRIMINAL APPEAL

60630/98

STEIN JA ABADEE J ADAMS J

Friday, 12 March, 1999

REGINA v Barbara GIALLUSSI JUDGMENT

1 STEIN JA :

INTRODUCTION 2 This is an appeal by the Commonwealth Director of Public Prosecutions against a sentence imposed on Barbara Giallussi by Judge Downs in the District Court on 25 September 1998. The offender pleaded guilty to five counts of defrauding the Commonwealth under s 29D of the Crimes Act, 1914 (Cth). His Honour convicted the prisoner and fined her $20,000 on each count, a total of $100,000. 3 The Commonwealth submits that the sentence was manifestly inadequate. To succeed in the appeal the Commonwealth must establish this and demonstrate some error in principle which shows that the sentencing discretion was improperly exercised. Even if the court finds that the sentence is manifestly inadequate, it has the discretion not to intervene and correct the sentence.