Di Cioccio v The Queen - [2013] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0190

ANDRE VINCENT DI CIOCCIO
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	1^st 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

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 Di Cioccio v The Queen

Details

AGLC: Di Cioccio v The Queen [2013] VSCA 74
Case: [2013] VSCA 74
Decision Date: 9 April 2013

CaseChat Overview and Summary

The appellant, Mr. Di Cioccio, was convicted of multiple counts of dishonest conduct while acting as a solicitor. The High Court of Australia was asked to review the sentence imposed by the lower court, which was 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months. The appellant argued that the sentence was manifestly excessive, and the appeal was brought to the High Court for a determination on the appropriate sentence.

The central issue before the court was whether the sentence imposed by the lower court was manifestly excessive, taking into account the appellant’s offending and his role as a solicitor. The court needed to weigh the severity of the crimes committed, the appellant’s position of trust, and the need for general deterrence, alongside any mitigating factors that may have been present.

The High Court found that the sentence was not manifestly excessive. The court considered the appellant’s role as a solicitor, the gravity of the offences, and the need for general deterrence. The court also took into account the appellant’s remorse and the impact the sentence would have on his family. The court concluded that the sentence was appropriate and proportionate to the offending, and the appeal was dismissed.

No additional orders were made by the court. The sentence of 7 years and 6 months’ imprisonment with a minimum term of 5 years and 6 months’ imprisonment was upheld.

Orders