New South Wales Court of Criminal Appeal CITATION : REGINA v BATTIATO [1999] NSWCCA 44 revised - 07/04/99 FILE NUMBER(S) : CCA 60136/98 HEARING DATE(S) : 8 March 1999 JUDGMENT DATE : 8 March 1999 The Crown (Respondent) PARTIES : v Anna Rosa BATTIATO (Applicant) JUDGMENT OF : Simpson J at 1; Smart AJ at 14 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0444 LOWER COURT JUDICIAL OFFICER : Graham DCJ COUNSEL : Applicant - P Segal Respondent - Crown - WG Dawe QC SOLICITORS : Applicant - Brock Partners Respondent - SE O'Connor CATCHWORDS : ACTS CITED : Sentencing Act 1989 DECISION : Appeal granted - sentence quashed - re-sentenced. IN THE COURT OF CRIMINAL APPEAL 60136/98 SIMPSON J SMART J Monday 8 March 1999 REGINA v Anna Rosa BATTIATO Judgment SIMPSON J : 1 On 30 January 1998 the applicant pleaded guilty in the District Court to an indictment containing nine counts of obtaining financial advantage by deception. On 11 March 1998 Graham DCJ sentenced her on each count to a term of imprisonment for four and a half years which, having found special circumstances pursuant to section 5 of the Sentencing Act 1989, he divided into a minimum term of two and a half years and an additional term of two years. 2 The applicant seeks leave to appeal the sentence so imposed. She does not assert that the sentence is manifestly excessive. The principal basis for the appeal is that in arriving at the sentence, his Honour overlooked or failed to give sufficient weight to extensive cooperation and assistance given by the applicant once she came under suspicion. It will be necessary to return to this matter shortly. 3 The circumstances of the offences may be briefly stated. They were committed by the applicant as an employee of a bank and involved her using her position to alter the nature of certain accounts in such a way as to make the funds held therein readily accessible to her, but to delay detection of the removal of those funds. 4 The first offence was committed in July 1993 and the last in August 1996. The offences were therefore committed over a period of a little over three years. In all, a sum of $490,000 was involved. 5 The explanation given by the applicant for the offences was twofold. Firstly, she had become involved in a relationship with a man, to whom eventually she became engaged, and she used the bank as a source of funds to strengthen his dependence upon and commitment to her. She gave him large sums of money for his business and spent more on expensive luxuries for him and for them. 6 Secondly, she suffered from a problem with gambling, although it was not such a problem as could be described as an addiction. She had, in fact, become aware sometime earlier of a problem with gambling, and had taken steps to ameliorate it, but her intentions in this regard were defeated by a combination of circumstances, the opening of a casino in Sydney and the defalcations which created in her the need for significant sums if she were to repay them. Her intention was to replace the money she had removed from the accounts, and the only avenue she had to obtain funds for this purpose was to gamble with the funds she could continue to obtain from the bank. 7 Once the bank became suspicious of the applicant's activities, she sought legal advice and cooperated fully. There was evidence before his Honour that she had done so. However, little attention appears to have been given to this circumstance at the hearing, and although there may have been some evidence before his Honour to this fact, it was effectively buried in a mass of other detailed material. No emphasis was placed on the considerable level of cooperation given by the applicant on the discovery of her activities. It is, therefore, not surprising that his Honour made no mention of it in his remarks on sentence. The applicant in fact disclosed at an early stage the extent, and details of her activities. This must have simplified the necessary subsequent investigation by both the bank and the police. 8 No objection having been taken by the Crown, correspondence making more clear the level of cooperation provided by the applicant was received and read in this Court. That correspondence supports the assertion made by counsel for the applicant that there was a high degree of cooperation given by her that must have assisted both the bank and the investigating police in their enquiries into this matter. As counsel pointed out, section 442B of the Crimes Act requires that such matters be taken into account as, no doubt, it would have been, had it been given due emphasis before his Honour. 9 I am satisfied that the additional evidence now having been admitted without objection, it is appropriate that due recognition be afforded to the applicant's assistance. I am satisfied the absence of this material in the sentencing proceedings contributed to error, although it was by no means error on the part of the sentencing judge. However, the result is that the applicant must be resentenced. 10 The question that arises is what sentence should have been imposed, taking account of the material now known and properly recognised? This is not easy to determine. The case that was advanced before his Honour revealed a history deserving of sympathy, but that history does not outweigh the seriousness of the objective circumstances. Significant among the objective circumstances are the facts that the offences were committed from the position of trust, and over a long period of time. 11 The subjective some circumstances included the fact that the applicant exhibited some symptoms of excessive compulsive disorder and required psychological assistance. His Honour did give appropriate weight to all of these subjective circumstances, leaving aside that which I have already mentioned. Important among these were the absence of any previous criminality on her part. She was 37 years of age at the time she was sentenced. She was genuinely contrite and remorseful. Her family and other relations have been shattered by her behaviour and the psychological and psychiatric material evidenced her unhappy circumstances and personal problems. 12 As I have already mentioned, it was not contended that the sentences imposed were manifestly excessive, but merely that they did not take into account one significant feature. This would make no difference if the sentences imposed were sentences at the bottom of the range. It was accepted, on the part of the applicant, that the sentences were lenient, but the Crown did not argue that they were in any event at the bottom of the available range in the circumstances. Nevertheless, it must be noted that the sentences were relatively lenient having in mind especially the duration and the continuity of the offences and for these reasons, although I am of the view that the applicant must be re-sentenced, only a relatively small reduction in her sentence can be made. 13 I propose that leave to appeal be granted, the sentences be quashed and in substitution therefor the applicant be sentenced on each count to a total term of imprisonment for four years, made up of a minimum term of two years and three months commencing on 11 March 1998 and expiring on 10 June 2000 and an additional term of one year and nine months commencing on 11 June 2000 and expiring on 10 March 2002. 14 SMART J: In my opinion the judge made no error on the materials before him. The question of an alteration to sentence has arisen as a result of the material that was placed before this Court which set forth the assistance which the applicant gave the bank in investigating the frauds. She nominated both the accounts and the names of the customers. If it were not for this additional material admitted on the appeal, I would have dismissed the appeal. 15 So far as resentencing is concerned, I was of the view that the appeal should probably still be dismissed, having regard to the gravity of the offences. However, I am prepared to agree with the course proposed by Simpson J for the reasons given by her. 16 SIMPSON J: The orders of the Court will accordingly be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.