Di Cioccio v The Queen
[2013] VSCA 74
•9 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0190
| ANDRE VINCENT DI CIOCCIO | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE AP, BUCHANAN and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 April 2013 | |
DATE OF JUDGMENT: | 9 April 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 74 | 1st Revision 13 May 2013, para 2 |
JUDGMENT APPEALED FROM: | [2012] VSC 28 (Macaulay J) | |
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CRIMINAL LAW – Sentence – Offences of dishonesty committed by a solicitor – Sentence of 7 years and 6 months’ imprisonment with a minimum term of 5 years and 6 months’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C G Mandy | Spicer Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE AP:
I invite Buchanan JA to deliver the first judgment.
BUCHANAN JA:
After a trial in the County Court, the appellant was convicted on two charges of dishonesty. The appellant also pleaded guilty to 16 charges of dishonesty. The offences, maximum penalties and sentences are set out in the following table:
Charge Statement of Offence (amount) Max. Penalty and statutory provisions Sentence Cumulation First plea indictment: A11148849.2
1
Deficiency in trust account ($100,503.15)
15 years [Legal Profession Act 2004 s 3.3.21(1)(a)]
18 months
4 months
2
Deficiency in trust account ($101,866.51)
15 years [Legal Profession Act 2004 s 3.3.21(1)(a)]
18 months
4 months
3
Deficiency in trust account ($201,302.57)
15 years [Legal Profession Act 2004 s 3.3.21(1)(a)]
2 years
5 months
4
Obtain financial advantage by deception ($375,000)
20 years [Sentencing Act 1991 Part 2B, the applicant was sentenced as a ‘continuing criminal enterprise offender’ thereby attracting twice the maximum penalty of 10 yrs pursuant to Crimes Act 1958 s 82]
2 years 6 months
Base
5
Obtain financial advantage by deception ($280,000)
20 years [see above]
2 years 3 months
6 months
6
Obtain financial advantage by deception ($65,000)
20 years [see above]
18 months
4 months
7
Failure to pay or deliver trust money ($15,689)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
12 months
2 months
8
Deficiency in trust account ($115,000)
15 years [Legal Profession Act 2004 s 3.3.21(1)(a)]
18 months
4 months
9
Deficiency in trust account ($38,950)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
4 months
1 month
10
Deficiency in trust account ($40,590)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
4 months
1 month
11
Deficiency in trust account ($5,000)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
4 months
1 month
12
Deficiency in trust account ($33,950)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
4 months
1 month
13
Deficiency in trust account ($38,250)
15 years [Legal Profession Act 2004 s 3.3.21(1)(b)]
4 months
1 month
14
Obtain financial advantage by deception ($625,954)
20 years [see charge 4 above]
2 years 3 months
6months
15
Attempt to obtain financial advantage by deception ($132,900)
5 years [Crimes Act 1958 s 321P]
12 months
2 months
Second plea indictment: A11148849.4
1
Obtain financial advantage by deception ($138,900)
20 years [see charge 4, 1st indictment above]
2 years
5 months
Trial indictment: C1007368
1
Obtain financial advantage by deception ($85,318)
20 years [see charge 4, 1st indictment above]
2 years 3 months
6 months
2
Obtain financial advantage by deception ($209,000)
20 years [see charge 4, 1st indictment above]
2 years 6 months
7 months
The total effective sentence was seven years and six months’ imprisonment. A non‑parole period of five years and six months’ imprisonment was fixed.
The offences arose in the conduct of the appellant’s practice as a solicitor.
Indictment A11148849.2
In April 2006, a client of the appellant’s legal practice engaged the appellant to provide advice in relation to the purchase of a commercial warehouse property. An amount of $100,503.15 was transferred to the trust account of the practice. The following day the appellant removed the money from the trust account and transferred it to the firm’s business account and thereafter debited the business account in amounts totalling in excess of $100,000. (Charge 1: deficiency in trust account.)
On 25 May 2006, the further amount of $101,866.51 was transferred to the trust account as part of the purchase moneys for the property. The next day the appellant transferred all the money into his business account and thereafter debited the business account with amounts totalling $91,886.75. (Charge 2: deficiency in trust account.)
On 16 June 2006, a further amount of $201,302.57 was transferred to the trust account as part of the purchase money for the property. On the same day, the appellant transferred the money to the firm’s business account and debited that account with an amount in excess of $200,000. (Charge 3: deficiency in trust account.)
On 21 June 2006, the appellant registered a company and entered into a contract to purchase a property in the name of the company. The appellant obtained a loan in the amount of $375,000 by submitting forged and false documents to a bank. (Charge 4: obtain financial advantage by deception.)
In mid-2007, the appellant contacted a manager of National Australia Bank and said that he wished to obtain a finance facility in order to purchase computer equipment for his law firm. In support of the application, the appellant supplied false invoices in an amount of $280,000. On 14 August 2007, the manager of the bank drew a cheque for $280,000 which was deposited in the appellant’s law firm trust account. (Charge 5: obtain financial advantage by deception.)
On 3 April 2008, the appellant, in the name of a company which he controlled, entered into a lease agreement with a finance company for $65,000 to fund the lease of various items of computer equipment. The appellant used a false invoice to facilitate the application. The finance company credited the money to an account in the name of the company controlled by the appellant. (Charge 6: obtain financial advantage by deception.)
In late 2007, the appellant’s firm was engaged to act for one Daley who owned a half share of a property in Box Hill. On 7 February 2008, the vendor’s agent forwarded the balance of the deposit money from the sale of the property to the appellant’s trust account. The appellant failed to pay Daley her share of the money. (Charge 7: failure to pay or deliver trust moneys.)
Settlement of the transaction took place on 7 February 2008. At settlement, a bank cheque for Daley in an amount of $213,231.22 was forwarded to the appellant’s firm. The appellant failed to pay the money to Daley. After repeated requests on behalf of Daley, cheques were drawn on the appellant’s trust account and office account. There were inadequate funds in the trust account to cover the amount in full. (Charge 8: deficiency in trust account.)
On 20 April 2007, a company controlled by the appellant purchased a commercial property with the intention of developing it into residential units. The appellant’s firm acted as solicitor for the vendor of the units. The appellant’s firm received deposit moneys from a number of purchasers. The development did not proceed and the moneys were used for the appellant’s own purposes. (Charges 9 to 13: deficiency in trust account.)
In July 2008, the appellant and his wife made an application in her name for a loan of $680,000 supported by a number of false documents. A bank provided $625,954 to the appellant’s wife. (Charge 14: obtain financial advantage by deception.)
On 20 November 2008, the appellant and his wife submitted a consumer credit application in her name to a bank, again submitting false documents in support of the application. The application was declined. (Charge 15: attempt to obtain financial advantage by deception.)
Indictment A11148849.4
In about July 2007, the owner of a smash repair business engaged the appellant to broker a commercial hire purchase agreement on his behalf for the purchase of equipment business. Financing in the matter of $40,000 was approved. In November 2007, the appellant, according to the accident smash repair owners, as a broker, without his knowledge, submitted a further application for finance and reused the documents which had previously been provided to him, together with a false invoice. The appellant forged the signature of the owner of the business and an amount of $138,900 was obtained from the financier. (Charge 1: obtain financial advantage by deception.)
Indictment C1007368
The appellant operated a business retailing computer equipment. An associate of the appellant and his brother, one Tony Nguyen, was the sole director and shareholder of the company. In August 2007, the company entered into a commercial loan agreement with a bank for $85,318 to finance the purchase of computer equipment. The appellant and his brother facilitated the submissions to the bank by supplying a false invoice. A loan in the amount of $85,318 was granted by the bank. (Charge 1: obtain a financial advantage by deception.)
In August 2007, the appellant entered into a commercial hire purchase agreement with the bank for $209,000 to fund the purchase of various items of computer equipment. The appellant and his brother facilitated submission to the bank by supplying false invoices. The bank granted a loan in the amount sought. (Charge 2: obtain financial advantage by deception.)
The total amount involved in all 18 offences was $2,603,173.58. It was not disputed before the sentencing judge that at least $337,677 had been lost and a compensation order was made in that amount. The fact that the appellant was made bankrupt bears upon the prospect of recovering any part of that sum.
The grounds of appeal are as follows:
1.The individual sentences, the orders of cumulation and the total effective sentence and the non-parole period are manifestly excessive and/or infringed against the principle of totality.
2.The learned sentencing judge erred in taking into account prospective losses as a result of the appellant’s offending.
3.The learned sentencing judge erred in failing properly to take into account the appellant’s mental health at the date of sentence and the impact of it on his service of a sentence of imprisonment.
4.The learned sentencing judge erred in finding that the appellant was entitled only to a ‘moderate discount’ for his plea of guilty, from the sentence he would otherwise receive.
It is convenient to deal first with grounds 2 to 4.
In the course of his sentencing remarks, his Honour said:
It is not disputed therefore that at least $337,677 of moneys has ultimately been lost. An order for compensation will be made in that amount. Nearly a further million dollars could also be outstanding and ultimately lost. You have since been declared a bankrupt and thus there is little or no prospect those moneys will ever be recovered from you. Accordingly it is likely that both institutions and individuals will have substantially suffered as a consequence of your offending.
It was submitted on behalf of the appellant that as the precise amount lost could not be ascertained, the sentencing judge was bound to assess the loss as an amount of $337,677 as that was the only known sum and no further loss had been proved beyond reasonable doubt.
Counsel for the appellant at the plea told the sentencing judge that the banks held mortgages securing the sums they advanced. The counsel said that the land had been sold and it was not known whether the bank losses had been recouped.
The information supplied to the sentencing judge, in my opinion, entitled him to conclude that there were potential losses of nearly a further million dollars. The sentencing judge treated that amount as no more than a possibility and I think that was an appropriate assessment of the position.
As to ground 3, a report by a forensic psychologist was tendered in the course of the plea. The psychologist said that the appellant’s mental state had been ‘very much weakened’ and that he had become ‘significantly depressed and had lowered mood which had impaired his cognitive functioning’. The appellant had apparently attempted suicide. He was also diagnosed as suffering a major mood disorder with residual symptoms of post traumatic syndrome.
The psychologist’s opinion that the appellant had become significantly depressed with a lowered mood which impaired his cognitive functioning and was diagnosed as suffering from a bipolar disorder and post traumatic syndrome, was referred to by the sentencing judge in terms and I can see no basis upon which it could be said that his Honour did not pay due regard for the appellant’s mental health.
The sentencing judge said that the appellant was entitled to a moderate discount to reflect the utilitarian value for his plea of guilty. Counsel for the appellant relied upon the prosecutor’s description of the value of the plea as one deserving ‘full consideration of the fact that from a utilitarian aspect alone that has saved a great deal in the way of time and resources.’ Counsel also relied upon the declaration made pursuant to s 6AAA of the Sentencing Act1991 to demonstrate that the plea was undervalued.
The appeal is one against the sentence, not the declaration made pursuant to s 6AAA. The declaration in the present case was not of an order which disclosed that the value of the plea was effectively ignored. In my opinion, the plea in this case was not attended by any particular circumstances that rendered it inappropriate to accord the plea a modern discount.
For the forgoing reasons, I am of the opinion that there was no specific sentencing error. Accordingly, the question is not whether this Court would exercise the sentencing discretion to reach a result differing from the sentence passed below but rather whether the sentence was one which a reasonable sentencing judge could not impose.
The appellant could rely upon a number of mitigating factors of some significance. He pleaded guilty, he had no prior convictions, his mental health was materially impaired, he was affected by the suffering endured by his family, his career was in ruins and he was said by the psychologist to be ‘deeply remorseful’.
On the other hand, the appellant betrayed the trust reposed in him as a
solicitor. The offences were well planned and sophisticated. They persisted over a considerable period of time and they involved substantial sums of money.
Counsel for the appellant sought to compare the sentence imposed upon the appellant with the sentences imposed in four decided cases in order to demonstrate that the appellant’s sentence was excessive. The exercise is of extremely limited utility. Each case is attended by its own constellation of circumstances concerning the offending and the offender. The cases relied upon by the appellant were not truly analogous with his case.
While I doubt that I would have imposed the same sentence had I been the sentencing judge, in my opinion, it has not been demonstrated that the sentence imposed upon the appellant was outside the ambit of a reasonable sentencing discretion.
Counsel invoked the sentencing regime advanced by the prosecutor before the sentencing judge, a total effective sentence of between nine and 11 years with a non‑parole period of between seven and nine years, and relied upon the fact that counsel for the respondent in this Court conceded that the range advanced below was not appropriate.
In my opinion the, error of the prosecutor, if error it was, does not affect the integrity of the sentence imposed by his Honour. The sentence was below the suggested range and it cannot be discerned from the sentencing remarks how the suggested range was treated by the sentencing judge.
For the foregoing reasons I would dismiss the appeal.
NETTLE AP:
I agree and wish to add only two things. First, I note that ground 3 was abandoned in the course of argument, for the reason that there was no evidence that either the mood disorder or the post traumatic stress disorder from which the
appellant was said to suffer would be likely to make his time in prison more onerous than for a man of ordinary mental health.
Secondly, with respect to the complaint that the judge erred in providing for only a ‘moderate discount’, I note that what the judge said was that the appellant was entitled to ‘a moderate discount of the sentence you would otherwise receive, reflecting somewhat more than the utilitarian value of your plea of guilty’. As counsel for the Crown submitted in the course of argument, that was exactly the formulation proffered by defence counsel on the plea as one which the judge should accept and, in the circumstances, there can be no room for complaint.
For reasons given by his Honour, I too would dismiss the appeal.
PRIEST JA:
I agree.
NETTLE AP:
The order of the Court is that the appeal is dismissed.
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