Director of Public Prosecutions v Alesi

[2017] VCC 768

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00228
CR 16-00229

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANK ALESI
LEPA ALESI

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 May 2017
CASE MAY BE CITED AS:	DPP v Alesi
MEDIUM NEUTRAL CITATION:	[2017] VCC 768

REASONS FOR SENTENCE
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Subject:  Obtain financial advantage and property by deception
Catchwords:  Husband and wife, family and friends victims
Legislation Cited:  Total of approx. $700,000 defrauded
Cases Cited:  TEFS 4 years 9 months, 3 year NPP
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For Offender F. Alesi	Mr T. Lavery
For Offender L. Alesi	Mr T. Lynch

Pages 1 - 14

 

 

1HIS HONOUR:  Frank and Lepa Alesi, you are husband and wife, and are jointly charged with 13 offences; 11 charges of obtaining a financial advantage by deception, one charge of obtaining property by deception, and one charge of theft.  Lepa Alesi, you alone are charged with a further offence, namely Charge 14, of obtaining property by deception. 

2The maximum penalty for both theft and the deception offences is ten years' imprisonment. This is subject to the fact that Charges 5, 6, and 10 are continuing criminal enterprise offences. Part 2B of the Sentencing Act applies when a court sentences a continuing criminal enterprise offender or a continuing criminal enterprise offence. Continuing criminal enterprise offences are defined in Schedule 1A of that legislation. Section 6H(1) of the Sentencing Act defines continuing criminal enterprise offender to mean an offender who was found guilty of three or more continuing criminal enterprise offences.

3By operation of these provisions, you both fall to be sentenced as continuing criminal enterprise offenders on Charges 5, 6, and 10.  This has the effect of elevating the maximum term of imprisonment for these offences to double what it would otherwise be; namely, 20 years' imprisonment.

4Tendered on the plea hearing was an extensive summary of the circumstances of your offending.  No dispute was taken with this.  Having regard to this and the fact that the summary will remain on the court file, I will more briefly summarise the circumstances of your offending.

5In summary, your charges relate to a series of frauds which you perpetrated on family and friends between 2002 and 2010.  This resulted in funds of approximately $700,000 being obtained by you.  Your first victim, Mr Guido Alesi, is now in his late 60s.  He is the victim of Charges 1 through to 4 inclusive.  Mr Frank Alesi, you are the nephew of this victim and you, Lepa Alesi, have married into the family.

6Your victim suffered a work-related injury in March of 2000 and he received ongoing worker's compensation payments consequent upon his inability to work.  By mid‑2002, your victim and his then‑wife were experiencing marital difficulties.  They continued, however, to share the matrimonial home in Traralgon.  Your victim's command of English at that stage was poor, and he was a person who had a limited understanding of banking and finance, and he had relied upon his wife to manage the family finances throughout the course of his marriage.

7At around this time, you offered to help your victim with his finances.  In the course of this taking place, you suggested that his wife had been having affairs and suggested that your victim was not the father of his two children.  You intimated that his wife had been effectively stealing his savings and you told him that he needed to liquidate his assets so they could be invested in a trust account for his benefit.  You represented to him that this course of action could protect his money from his wife's designs.

8Charges 1 through to 4 reflect the fact that between 2003 and 2010 both of you appropriated approximately $240,000 of your victim's money.  You, Lepa Alesi, persuaded your victim to open a Commonwealth Bank account in January of 2003.  On your instructions, he obtained only one card for this account and gave it to you.

9Charge 1 of theft between 29 January 2003 and 31 March 2010 involves the depositing of some 375 WorkCover payments, totalling $324,000-odd into the CBA account.  Some of this was given to your victim and rental was paid on his accommodation at a caravan park.  Approximately $160,000 in cash over this period was withdrawn, and this was spent on yourselves.  Charge 1 is a rolled‑up count of theft reflecting this.

10Charge 2 is a rolled-up charge of obtaining a financial advantage by deception in the amount of $35,353‑odd.  This occurred between 9 July 2004 and 17 June 2005.  You, Lepa, persuaded your victim to redeem his superannuation

entitlements.  You told your victim to ring his superannuation fund and authorise you to speak on his behalf.  You then had the funds sent to your address and arranged for you victim to open an account with the National Australia Bank in July of 2004.  On 9 July 2004, an amount of $25,000 was drawn.  On 21 January 2005, a withdrawal of $7,950 occurred.  On 17 June 2005, a withdrawal of $2,503 took place.  In order to effect this, your victim's signature was forged on documents authorising these payments.

11Charge 3 occurred between 1 February and 28 February 2006.  This involved your victim's portion of the proceeds of sale of his matrimonial home.  This was paid into an account and the sum of $26,500 was transferred to the Visa card account of you, Lepa Alesi.  In order to effect this, you, Lepa, gave instructions to your victim's solicitor purporting to be on your victim's behalf, having told your victim that his share of the settlement would be deposited into the trust account.

12Charge 4 occurred between 1 February and 28 February 2002.  This involved you, Lepa, ringing your victim's long service leave provider.  Arrangements were made for his long service leave entitlement to be redeemed.  You completed the necessary forms and had your victim sign it on the understanding that the money would be invested into his trust account.  Following on from this, a cheque was deposited into a CBA account in the sum of $13,261.  Four days later, $8,000 was transferred to the Visa card account of you, Frank Alesi.

13By January 2007, both of you had moved to Rye.  By this stage, your victim was living in a caravan park in Traralgon, and arrangements had been made for you, Lepa Alesi, to pay his weekly rent of $122.  Initially, you would send your victim $500 per fortnight for his living expenses.  These payments, however, became sporadic, and decreased over time.  By September 2009, they had stopped completely.

14When your victim queried you, you, Lepa, claimed that you had cancer and were in a hospital.  Ultimately, the owners of the caravan park where your victim was living took pity on him, and arranged for him to do odd jobs at the premises to enable his rent to be paid.  They were also required to give him a food voucher and money, to enable him to be supplied with electricity. 

15Your victim ultimately discovered that the balance of his so-called trust account was only $17 in or about April 2010.  You were challenged over this, and you, Lepa, indicated that your co-offender, Frank Alesi, had left you, and you had no money.  You denied that there was ever any trust fund, and ultimately you were pleading with him not to go to the police.       

16This provided the context whereby your victim made his first statement to police on 7 October 2010. 

17Following the move of both of you to Rye in 2007, your offending continued.  You were both living in rented premises and had no legitimate income, aside from Government benefits.  Notwithstanding this, you made outward displays of wealth and engaged in spending which was supported by the proceeds of your frauds. 

18This veneer of wealth by the both of you was used to evidence your claimed business skill, and used as a tool by you to persuade your victims to part with their money.  The funds which you were both able to obtain from your various victims were primarily as a result of you using the pretext that you would invest funds in the stock market, and promised significant profits. 

19Your victims had little knowledge of the stock market.  They were lured by assurances of significant returns and representations that their money was secure, and that it was managed by a non-existent financial dealer named Samuel Escada.        Most of this money was spent by you both on living expenses and maintaining your lifestyle. 

20Mr Valerio Alesi is the younger brother of you, Frank Alesi.  He and as his wife Helen lost approximately $281,000 as a result of your crimes.  Charge 5 occurred on 9 May 2007, and involved your victim transferring $200,000 to a NAB account of yours, Frank Alesi.  This was on the basis that you would both invest it as part of a share portfolio.

21In or about June or July 2007, you, Frank Alesi, transferred $180,000 of this sum to a third party, Mr Kurt Lingor.  Your victim, Valerio Alesi, had no knowledge of this transaction.  In February 2008, you directed Mr Lingor to sell all of the shares to which the $180,000 had been applied.  This then resulted in a loss of $120,000.  No funds were returned to your brother, Valerio. 

22Charge 6 occurred between 1 July and 31 July 2008.  This involved your victim being invited to invest in an oil investment opportunity.  Consequently, $80,000 was transferred, with your victim believing that his money was to be invested via Mr Samuel Escada, the fictitious person who you had both made up.

23In order to appease your victim when he queried the lack of return, amongst other things, you, Lepa Alesi, claimed to have terminal cancer.  Your victim was given $10,000 and taken on a week-long holiday to Port Douglas.  It seems this $10,000 gift came from his own money. 

24Charge 7 occurred on 3 December 2009 and involved the transfer of a further $1,000 to the NAB account at your request.  These funds were said to be invested in a share portfolio.  Toward late 2009, your victim Valerio Alesi's investment was due to mature. 

25You both embarked on a series of elaborate stalling tactics, with meetings being set up with Mr Escada and another person pretending to be Escada’s assistant, enabling these meetings to be cancelled.  Various emails were sent to your victim, pretending that they were from Escada, and a number of excuses followed to explain why the promised dividends have not eventuated. 

26Charge 8 occurred between 31 March and 4 August 2006, and involved you persuading Lepa's hairdresser, Audrey Zagaro, to invest with you.  Two sums totalling $17,080 were deposited into your account, and nothing was repaid.  Anna Baricevic was your next victim.  She was your next-door neighbour in Rye.  She was persuaded to invest in so-called oil shares by you, and Charges 9, 10 and 11 represent Ms Baricevic transferring funds to an NAB account of you both.

27Charge 9 occurred between 16 January 2008 and 9 December 2009, and involved the sum of $21,000, comprised of three deposits occurring on 16 January 2008, 3 December 2009, and 9 December 2009.  Charge 10 involves a transfer of $60,000 occurring on 1 February 2010. 

28Charge occurred between 3 and 24 February 2010, and is a rolled-up charge, involving two transfers on 3 and 24 February, totalling $7,400.  So far as the last of these transfers are concerned, they were made following you, Lepa Alesi, requesting money from your victim in order to pay off your house. 

29You were representing that you and your children were in danger of being thrown out on the street.  You also claimed that your co-offender, Frank Alesi, had left you, leaving you no money for living.  When pressed for payment from these so-called investments, numerous excuses were provided, including you, Lepa Alesi, claiming to be suffering from terminal cancer.  Ultimately a series of worthless cheques were mailed to your victim, all of which were dishonoured. 

30Your next victims, Anka and Stipe Baricevic, were the owners of a holiday house in Rye area, and had become friendly with you both.  They are relatives of Anna and Nikola Baricevic.  Your victims were invited to invest, with the promise of immense returns.  Charge 12 occurred between 27 June 2008 and 13 January 2010.  It is a rolled-up charge, involving a total of $51,000, deposited variously on 27 June and 29 October 2008, 7 December 2009, and 13 January 2010. 

31The last sum that was provided to you was all the Baricevic’s could afford, as your victim, had just finished cancer treatment and was recuperating.  Ultimately, a series of cheques were sent to your victims, totalling $164,000.  All, however, were dishonoured when presented.

32Charge 13 is the last of your joint offences, and occurred between 11 November 2008 and 28 November 2009.  Your victim in this matter was Mr Steven Baricevic, who is the son of Anna and Nikola Baricevic.  You induced him to invest in so-called blue chip Russian oil stocks. 

33Charge 13 is a rolled-up count, totalling $31,000, comprising transfers on 11 and 12 November 2008 and 27 November 2009.  In order to put your victim off, you, Lepa Alesi, told him, amongst other things, that your co-offender, Frank, was in treatment for a breakdown.  

34The final charge, Charge 14, relates solely to you, Lepa Alesi.  In May 2010, you told your victim, Steven Baricevic, that you had pawned your wedding ring and you needed $4,000 to redeem it.  You were given these funds, and failed to return within the promised week. 

35By late 2009, John Baricevic had become suspicious about had become of the money given to the both of you by his brother, Steven, and his parents.  In 2010, you arranged for a bogus email in the name of a Morwell solicitor to be sent, to put him off the trail.  This email purported to verify that more time was needed to redeem the investment. 

36By October 2010, the Baricevic family travelled to Morwell to meet you, Lepa.  In order to put them off, you had deposited a cheque into your bank account, and thus showed the Baricevic’s the transaction balance reflecting that amount.  This cheque was subsequently dishonoured.  By late 2010, the Baricevic family confronted you, Frank Alesi.  You proceeded to blame your wife, Lepa, for taking the money and you assured your victims that they would be repaid.  By June of 2011, you, Lepa, rang John Baricevic and offered to pay him $10,000 if he would ring Valerio Alesi and pretend to be a solicitor and cancel a meeting that had apparently been arranged between your husband, Frank, and Valerio Alesi and the solicitor.  John Barichevic refused to take part in this deception.

37The total amount of your various frauds is in the sum of $707,000.  You are both jointly responsible, except for the sum of $4,000 which is referrable solely to you, Lepa Alesi.  Ultimately, when both of you were interviewed, you denied the allegations put to you by interviewing police. 

38You have both abused the trust that family and friends had placed in you in order to fund your respective lifestyles.  Your breach of trust was gross and egregious.  You have both behaved disgracefully.  You were both party to a course of conduct over a lengthy period which involved repeated, deliberate acts of dishonesty, and the defrauding of substantial sums of money.  You both set about disguising your fraudulent conduct and you were successfully able to do this for a period of years.  Amongst other things, you forged documents, pretended to be unwell with cancer, arranged or authored fictitious communications, and represented that you were having marital difficulties. 

39In each of your cases, your moral culpability was high.  A number of victim impact statements were tendered on the plea hearing.  I have had regard to the relevant and admissible portions of these.  In summary, your various victims speak of their anxiety and the harm which your offending has caused.  For a number of your victims, your offending has had significant adverse financial consequences.  In particular, so far as Guido Alesi is concerned, the results of your offending have been financially catastrophic.  He now has basically nothing to show for a lifetime of work. 

40In short, your offending has had a profound effect on some of your victims.  They bear a considerable psychological, emotional, and financial burden as a result of your offending.  I will have appropriate regard to the harm which you have caused.  Given your breach of trust, the quantum involved, and the repetitive and protracted nature of your offending, the sentencing principles of just punishment and general deterrence must appropriately underpin the sentences which I impose on you.  Given the repetitive and protracted nature of your offending, specific deterrence must also receive some emphasis.

41For each of you, it was put that you have nothing to show for your conduct.  I accept that there is no evidence that your conduct has resulted in the accumulation of wealth.  It seems that you dissipated the proceeds of your offending in maintaining your lifestyle throughout the offending period.  It was further put that your offending was reactive and lacked planning and sophistication.  I accept that there was a certain inevitability that you would be caught and that your offending was not as sophisticated as some examples which come before this court.

42Notwithstanding this, however, your offending conduct spanned an approximately eight-year period and netted you both some $700,000-odd.  Of this, I accept not all was applied directly to expenditure related to your lifestyle.  Some was applied in failed investments and in repayments to your victims, which had the effect of placating them for a certain period of time.

43Submissions were made that you had sold your residence in Traralgon in about 2007, and that you sought to rectify the losses suffered by Mr Guido Alesi by investing the funds which were the subject of Charge 5.  No evidence was called in support of this asserted motivation.  In each of your cases, given the state of the evidence and your repeated resort to elaborate lies throughout your offending period, you have not satisfied me on balance that your motivation was to this effect.

44It was further put that I ought to have regard to sentencing practices as they existed at the time of your offending. While historical sentencing practices do not constitute current sentences practices for the purposes of section 5(2)(b) of the Sentencing Act, equal justice principles may require a sentencing judge to also consider sentencing practices which existed at the time of the offence, so far as those sentencing practices can be established.  To the extent that these have been made known to me, I have had regard to them.  To this effect, see Stalio [2012] VSCA 120 at paragraph 53, and Curypko [2014] VSCA 192 at paragraphs 72 to 73.

45You are both the parents of two teenage boys.  Sensibly, it was not argued that the incarceration of either or both of you would result in exceptional hardship for your sons.  I do accept, however, that the term of imprisonment which I must impose on each of you will weigh more heavily on you given your concern for the wellbeing of your sons.  I also note that as a result of your offending, your sons are indirect victims of your criminality. 

46I accept that the delay between you becoming aware that your offending had been uncovered and my sentencing of you today has been considerable.  In saying this, I am not critical of investigators or the prosecuting agency.  This is rather reflective of a complex investigation and resourcing issues.  I accept you have experienced a degree and concern and anxiety awaiting the outcome of your matters.  I accept you have been the subject of adverse publicity and opprobrium within the community in which you live over the period of the delay.  I have taken into account the impact of delay in each of your cases. 

47Notwithstanding your initial denials to police when interviewed and your conducting a contested committal hearing, you have each pleaded guilty.  I am required to, and you will receive, an appropriate discount of your sentences as a result of this.  Your guilty pleas have facilitated the course of justice, they have saved the court time, and have meant that witnesses have not been required to be called in this court.  I accept also that your pleas evidence some remorse on your behalf.  Further, in this regard, I have given the belated public apologies made on behalf of each of you appropriate weight.

48Neither of your counsel submitted that I ought to distinguish your respective roles in the offending.  In light of this submission and on the basis of the material before me, I do not propose to do this.  You are both jointly charged with the offending and it seems to me both of you were integral to its commission.  In light of this, I do not propose to distinguish your respective roles or levels of culpability. 

49So far as you, Frank Alesi, are concerned, you are now 53 years of age.  You have been in a long‑term marriage with your co‑offender.  You have one prior court appearance which did not result in a conviction being recorded against you.  This matter occurred now some 20 years ago and is of little consequence so far as my sentencing of you is concerned. 

50I was told that you had last worked in a full‑time capacity in 2003, and this was as a bricklayer.  But since then, you had only engaged in sporadic part‑time work.  There is no information before me to suggest that you had anything other than an uneventful childhood and life prior to your offending conduct.  Your offending appears to have been motivated by greed, in that you wished to maintain your lifestyle.

51So far as you, Lepa Alesi, are concerned, you are now 46 years of age.  You have been in a long‑term marriage with your co‑offender.  You have no prior court appearances. 

52I was told that you were educated to Year 12 level, worked for a time in the clothing and travel industries, however, have not worked since you moved to Traralgon with your husband.  There is no information before me to suggest that you had anything other than an uneventful childhood and life prior to your offending conduct.  It appears that you came from a background of hard work and endeavour.  Like your co‑offender, your offending appears to have been motivated by greed, in that you wished to maintain your lifestyle.

53In both of your cases, I assess your rehabilitative prospects as fair.  Both of your counsel submitted that a suspended sentence was an appropriate disposition.  Mr Lavery went so far as to say that a community correction order would be appropriate.  I have reflected on your respective situation and counsel's submissions.  In my view, your offending is outside the proper ambit of either of these dispositions.  Such a sentence would not adequately address the need for deterrence and just punishment in both of your cases. 

54The fact that I will impose the same sentences on each of you for your joint offending and the same total effective sentence represents my synthesis of the factors relevant to each of you.  Balancing all matters, then, I sentence each of you as follows.

55On Charge 1, 18 months' imprisonment.  Charge 2, six months' imprisonment.  Charge 3, six months' imprisonment.  Charge 4, three months' imprisonment.  Charge 5, two years' imprisonment.  Charge 6, 12 months' imprisonment.  Charge 7, one month's imprisonment.  Charge 8, four months' imprisonment.  Charge 9, four months' imprisonment.  Charge 10, 12 months' imprisonment.  Charge 11, two months' imprisonment.  Charge 8, eight months' imprisonment.  Charge 13, six months' imprisonment.  On Charge 14, solely referrable to you, Lepa Alesi, one month's imprisonment.

56I declare that the sentence of two years' imprisonment which I have imposed on Charge 5 is the base sentence, and I cumulate on it, and on each other, the following sentences: 12 months of the sentence I have imposed on Charge 1; three months of the sentence I have imposed on Charge 2; three months of the sentence I have imposed on Charge 3; three months of the sentence I have imposed on Charge 6; two months of the sentence I have imposed on Charge 8; six months of the sentence I have imposed on Charge 10; two months of the sentence I have imposed on Charge 12; two months of the sentence I have imposed on Charge 13. 

57This makes a total effective sentence for each of your of four years and nine months' imprisonment. In both of your cases, I will fix a non-parole period of three years. I will declare presentence detention for both of you in the sum of seven days. I will indicate, but for your pleas of guilty, pursuant to section 6AAA of the Sentencing Act, I would have imposed a total effective sentence for each of you of six years' imprisonment and fixed a four-year minimum.

58I will cause to be entered into the records of the court the fact that you both have sentenced as a continuing criminal enterprise offender on Charges 5, 6 and 10.  If either counsel require me to repeat those figures, I will.  You can both have a seat for now. 

59MR MOORE:  Would Your Honour just repeat charges 12 and 13, please?

60HIS HONOUR:  Yes.  Charge 12, eight months, two months cumulative; Charge 13, six months, two months cumulative.

61MR MOORE:Thank you, Your Honour.Now, I have the orders which I sought, Your Honour.

62HIS HONOUR:  yes. 

63MR MOORE:  There is one I should explain, Your Honour.  In relation to the victim Guido Alesi, the informant, when he executed a warrant at the premises of the accused, recovered an amount of $1,685.  Now, on the last occasion, I spoke with the informant about this amount, and what he did was, he got all the victims together, and they decided, jointly, that this money should go to Guido Alesi, which was very generous of them. 

64But in order for that to take place, we need an order releasing that money, or ordering the Chief Commissioner of Police to pay that money to Mr Guido Alesi, so there's an order to that effect.  The amount has been reduced in his case for the compensation order by that amount.

65HIS HONOUR:  All right.  Thank you.  Mr Lavery, Mr Lynch, I take it you don't want to say anything about these orders?

66MR LAVERY:  No, Your Honour. 

67MR LYNCH:  No, Your Honour. 

68HIS HONOUR:  Given the significant amount of paperwork, I'll do these in chambers, and I'll be available at a later time.

69MR MOORE:  Thank you, Your Honour.

70HIS HONOUR:  I'll indicate that in relation to both Lepa and Frank Alesi, I've ordered that they provide a forensic sample to enable DNA to be extracted, to go onto the database.  I'll indicate that should you refuse to provide that sample, reasonable force may be used to enable that, and I'd ask both of you gentlemen to ensure they understand the position with respect to that.  Are there any further orders beyond these required? 

71MR MOORE:  No, Your Honour. 

72HIS HONOUR:  All right.  Thank you all for your assistance.  The Alesis can be removed, thank you.

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