Director of Public Prosecutions v Antonio Dattilo
[2018] VCC 1237
•25 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02230
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTONIO DATTILO |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2018 | |
DATE OF SENTENCE: | 25 July 2018 | |
CASE MAY BE CITED AS: | DPP v Antonio Dattilo | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1237 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Perverting the course of justice (11 counts) – attempting to pervert the course of justice (10 counts) - civil proceedings – reliance on false affidavits of service – premeditated offending – multiple victims – significant harm to victims – persistent conduct over 15 months – perjury (1 count) – swearing false affidavit – delay – prior conviction
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Burnett v The Queen (1986) 8 Cr App R (S); Director of Public Prosecutions v Grabovac [1998] 1 VR 664; McCready v The Queen (1985) 20 A Crim R 32; R v Baba [1977] 2 NSWLR 502; R v Coukoulis (2003) 7 VR 45; R v Kellow and Townsend (Unreported, Court of Criminal Appeal, 17 August 1979); R v Taouk (1992) 65 A Crim R 387
Sentence: Imprisonment for a period of 8 years and 1 month with a non-parole period of 6 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Saunders | Office of Public Prosecutions |
| For the Accused | Mr G Chisholm | Balmer & Associates |
HER HONOUR:
1 Antonio Dattilo, you have pleaded guilty to 11 charges of perverting the course of justice, 10 charges of attempting to pervert the course of justice, and 1 charge of perjury.
2 The maximum penalty for each of the offences of perverting the course of justice and of attempting to pervert the course of justice is 25 years’ imprisonment. The maximum penalty for the offence of perjury is 15 years’ imprisonment.
3 The circumstances of your offending are set out in the summary of prosecution opening and four annexures attached to it, and I sentence you on the basis of the facts contained in those documents. Your offending can be summarised in the following terms.
4 You were formerly a director and secretary of a number of companies through which, among other things, you ran a business of importing goods from Italy. Following issues with your businesses, as well as inter-family conflict and litigation (concerning the proceeds of sale of your mother-in-law’s family home and concerning her care), you began to initiate civil proceedings against people with whom you had a perceived grievance.
5 Having issued proceedings, false affidavits of service, sworn by your wife, Patrizia Dattilo[1], were filed which purported that the Writ or Summons had been served on the nominated Defendants. None of the nominated Defendants were actually served with the relevant documents. Once the affidavits of service were filed you would then apply for judgment in default of appearance.
[1] I note that earlier today I sentenced Patrizia Dattilo to a term of imprisonment of three years, wholly suspended for a period of three years, in respect of 13 counts of perjury relating to the swearing of false affidavits of service at your direction in a number of proceedings concerning all but one of the victims (Anthony Garoffolo) affected by your offending.
6 In some instances, you used the default judgment to initiate bankruptcy proceedings against individual defendants, and winding up proceedings against incorporated defendants. Again, the initiating documents were not served, false affidavits of service were sworn and filed, and sequestration or winding up orders were sought on the basis of there being no response from the defendants.
7 In some instances, after the complainants became aware of the court actions against them, they would list the matter for hearing to have the judgments entered and orders made against them set aside. In these cases, false affidavits maintaining that the original Writ or Summons had been served and that other documents said to be the basis of the claim had previously been sent to the defendants, were sworn, filed and relied upon in the proceeding.
8 The charges of perverting the course of justice (charges 1-3, 6, 8, 10-12,14, 18 and 21) relate to your conduct in issuing proceedings, not serving them, and using false affidavits of service to obtain a default judgment or order. The charges of attempting to pervert the course of justice (charges 4,5,7,9,15,16,17,19,20 and 22) relate to a course of conduct in each of the proceedings referred to below in which proceedings were issued, not served and false affidavits were relied upon but no default judgment or order was obtained.
Details of the offending
9 It is convenient to briefly outline the offending relevant to each victim and to record the impact of that offending as described in the victim impact statements.
Victims: BPH Pty Ltd, Concetto Mancuso and Leilani Hannah
10 BPH Pty Ltd (BPH) leased a factory to a company of which you were the director. Your company failed to pay rental due for two months. BPH then took possession of the factory, required your company to remove your goods and when you failed to do so, sold those goods at public auction for a total of $54,216.80. You disputed the value of the goods sold.
11 Charge 1 alleges that you perverted the course of justice by relying on the affidavits of service dated 21 December 2011 and entering judgment in default on 22 December 2011 in the sum of $276,644.40 in County Court proceedings against BPH, Mancuso and Hannah[2].
[2] Proceeding no. C1-11-05849.
12 Charge 2 alleges that you perverted the course of justice by relying on the affidavits of service dated 28 December 2011 and entering judgment in default on 29 December 2011 in the sum of $976,381.41 in County Court proceedings against BPH, Mancuso and Hannah[3].
[3] Proceeding no. CI-11-05877.
13 Charge 3 alleges that you perverted the course of justice by relying on the affidavits of service dated 21 December 2011 and entering default judgment for $449,996.58 in County Court proceedings against BPH, Mancuso and Hannah[4].
[4] Proceeding no. CI-11-05878.
14 Charge 4 alleges that you attempted to pervert the course of justice by executing and relying on the affidavits in bankruptcy proceedings in the Magistrates’ Court against Mancuso, which were dismissed by the Registrar on 8 March 2012[5].
[5] Proceeding no. MLG 98/12.
15 Charge 5 alleges that you attempted to pervert the court of justice by executing and relying on the affidavits in bankruptcy proceedings in the Magistrates’ Court against Hannah which were dismissed by the Registrar on 8 March 2012[6].
[6] Proceeding no. MLG 99/12.
16 In their victim impact statement, Concetto Mancuso and Leilani Hannah stated that they have each suffered great distress and anxiety as well as high blood pressure as a result of your actions and have lost nearly $100,000 and a great deal of time defending themselves even though they did nothing wrong. The lost income has set them back years in paying their mortgage. They have lost faith in the legal system, no longer feel safe from this kind of harm, or from you. They worry that this kind of harm could happen again.
Victim: CCI Global Logistics Australia Pty Ltd (Anthony Garoffolo)
17 CCI Global Logistics Australia Pty Ltd (CCI) performed customs brokerage and freight forwarding services for one of your companies between 15 and 20 occasions between 2004 and 2012. In particular, CCI provided those services to your company in 2009 in relation to some imported beer. You alleged that some of this stock was missing. You also arranged to use CCI’s factory to store your beer, paid for five months of storage, but then ceased payment. CCI continued to incur the costs of storage.
18 Charge 6 alleges that you perverted the course of justice by executing the affidavit dated 17 December 2011, entering judgment in default on 20 December 2011 (in the sum of $93,391.25) and by executing the affidavit dated 13 March 2012 (in response to CCI’s application to set aside judgment) in Magistrates’ Court proceedings against CCI[7].
[7] Proceeding no. B13260563.
19 Charge 7 alleges that at the time you issued winding up proceedings in the Supreme Court against CCI, you knew that the judgment debt on which it was based had been procured with the use of false affidavits of service and that the Statutory Demand on which it was based had never been served, and therefore by issuing the winding up proceeding you engaged in conduct which had the tendency to and was intended to pervert the course of public justice[8].
[8] Proceeding no. SCI-2012-200347.
20 In his victim impact statement, Anthony Garoffolo stated that the cost of your conduct to his business and to himself was in the order of $85,000 and that he remains troubled by your manipulation of the legal process. He suffered depression and anxiety as a result of your actions, lost about 6 kgs in weight, lost his ability to trust anyone, was unable to sleep, and required medical attention. He has changed as a person as a result of your conduct and no longer trusts people. He is distressed that you could act as you have without any reason except to hurt people emotionally, psychologically and financially.
Victim: Deakin Auto Sales Pty Ltd (Barry Deacon and Sandra Deacon)
21 Deakin Auto Sales Pty Ltd (DAS) operated a used car dealership. In April 2010, through a company you operated, you contracted to purchase a Range Rover worth $55,000, requested modifications worth $4628, paid three instalments then did not take delivery of the car. The car was resold for $55,000.
22 Charge 8 alleges that by relying on the affidavit of service dated 26 September 2011, entering judgment in default on 14 October 2011 for $14,457.42 against DAS, and executing and relying on the affidavits dated 7 December and 16 December 2011 (in relation to the re-hearing application in December 2011 in Magistrates’ Court proceedings against DAS), you perverted the course of justice[9].
[9] Proceeding no. B12595604.
23 Charge 9 alleges that you attempted to pervert the course of justice by executing and relying on the affidavits of 11 November 2011, 2 and 5 March 2012, in Supreme Court winding up proceedings against DAS Ltd which settled[10].
[10] Proceeding no. SCI-2011-6055.
24 In his victim impact statement, Barry Deacon stated that prior to your offending conduct he ran a successful business with his son, selling used Land Rover vehicles. However, his son was so distressed by the court proceedings initiated by you that he left the business. Barry Deacon has been so distressed by your conduct that he could not work at night for fear that someone might walk into his premises. He felt isolated and withdrawn, lost trust in people and so no longer engaged with his clients. Before your conduct, he managed to control his Type 2 Diabetes with diet and exercise alone. As a result of the stress caused by your conduct he has become permanently dependent on medication and also suffers from stress related skin irritations. He has been so adversely affected psychologically by your conduct that he is planning to retire much earlier than he otherwise would have done. He also suffered financially as a result of having to defend himself against your allegations.
25 In her victim impact statement, Sandra Deacon stated that as a result of your conduct, she suffers constant anxiety and is mistrustful of anyone she meets socially or professionally. As a result of her ongoing stress, her asthma is harder to control, requires more medication and greater medical expenses. She and her husband incurred legal costs exceeding $80,000 as a result of your offending.
Victim: Louisa Meagher
26 You contacted Louisa Meagher, a sex worker, in about May 2010 through an online advertisement. You received sexual services from her on a number of occasions. Your son was at the same school as the children of Gloria and Ross Ritoli. You developed a sexual interest in Gloria Ritoli but she rejected your advances and told her husband of them. He told you to desist. You then hired Ms Meagher to seduce him. You paid Ms Meagher $2300 in furtherance of this plan. Ms Meagher had a change of heart and reported your plan by text message to Ross Ritoli. When you discovered that Ms Meagher had changed her mind, you invoiced her for attendances and correspondence related to legal matters regarding the Ritoli’s and for reviewing documents exploring legal options.
27 Charge 10 alleges that by relying on the affidavit of service dated 22 September 2011 and by entering judgment in default for $62,425 plus interests and costs against Louisa Meagher in the Magistrates’ Court, you perverted the course of justice[11].
[11] Proceeding no. B1204655.
28 Charge 11 alleges that you perverted the course of justice by relying on the affidavits of service dated 25 October, 18 November and 9,12 and 15 December 2011, obtaining a sequestration order against Louisa Meagher in the Federal Magistrates’ Court[12] on 15 December 2011, and by relying on the affidavits of service dated 5 and 14 February 2012 in attempting to maintain that order, which was later set aside.
[12] Proceeding no. MLG 1585/11.
29 Charge 12 alleges that you perverted the course of justice by relying on the affidavit of service dated 28 November 2011 and the judgment entered on 29 November 2011 for $633,471.07 against Louisa Meagher in County Court proceedings[13].
[13] Proceeding no. CI-11-05431.
30 In her victim impact statement, which she read in court, Ms Meagher stated that she had none of the dealings you claimed as the basis of the debt you alleged against her and no notice of bankruptcy proceedings brought against her. She was astonished and distressed to learn that she had been made bankrupt for the amount of $63,413.17 in the Federal Magistrates’ Court and had been sued for over of $600,000 in the County Court[14]. She started having panic attacks. Her friends did not believe her that it was possible to be made bankrupt as a result of fraud. Her relationship broke up. She was diagnosed with post-traumatic stress disorder, major depressive disorder and anxiety. She felt unsafe physically and took out intervention orders against you. She was unable to get legal aid and spent $54,000, her entire savings, to have the bankruptcy set aside. She has left Melbourne but has been unable to undertake further studies because of her fear of strangers. You have taken away five years of her life, her trust, her love of life and her thoughts of a happy future. She now struggles emotionally and lives on a disability pension. She has been unable to seek compensation from you. But your conduct continues to affect her adversely, as even when she applies for rental accommodation, her Federal Magistrates’ case file details show up on the relevant database.
Victims: ADC Transport Pty Ltd, Vince Fato, Lina Fato and Maria Fato
[14] On 29 November 2011, no appearance having been entered by Ms Meagher, Antonio Dattilo entered a default judgment in the County Court at Melbourne against Ms Meagher in proceeding CI-11-05431 in the sum of $633,471.07.
31 Lina Fato and Vincenzo (Vince) Fato are siblings of Patrizia Dattilo. Maria Fato is married to Vince Fato.
32 You alleged that one of your companies loaned Lina Fato $35,000 over 7 years pursuant to a loan agreement, that she was in default of that agreement, and owed you interest on that amount. Lina Fato denied having borrowed or received such monies.
33 Charge 14 alleges that you perverted the course of justice by relying on the affidavit of service dated 21 November 2011, preparing and relying on the affidavit of Angelina Fato dated 20 November 2012, relying on the affidavit of service of Giuseppe Chimirri dated 20 January 2012, and making and using the false documents dated 3 August 2004 and 27 July 2004 in Magistrates’ Court proceedings against Lina Fato[15].
[15] Proceeding no. B12732063.
34 Charge 15 alleges that by preparing and relying on the affidavit of service dated 30 November 2011 in a creditor’s petition in the Federal Magistrates’ Court against Lina Fato, you attempted to pervert the course of justice[16]. The proceedings were dismissed.
[16] Proceeding no. B183/11.
35 Vince Fato and Maria Fato were directors of ADC Transport Pty Ltd (ADC). You alleged that one of your companies had business dealings with ADC giving rise to a debt of $44,675.20.
36 Charge 17 alleges that by preparing and relying on the affidavits dated 21 November 2010 and 5 January 2011, and by relying on the affidavit of service dated 4 January 2011 in Supreme Court proceedings to wind up ADC, you attempted to pervert the course of justice[17]. Your application failed.
[17] Proceeding no. SCI-2011-00014.
37 Charge 18 alleges that by preparing and relying on the 2 affidavits dated 19 October 2011 and entering judgment in default on 11 November 2011 that day for $99,974.69 against Vince and Maria Fato in Magistrates’ Court proceedings, you perverted the course of justice[18].
[18] Proceeding no. B12674702.
38 Charge 19 alleges that you attempted to pervert the course of justice by preparing and relying on the affidavit in opposition to the rehearing application made on 1 February 2012 by Vince and Maria Fato, and by making and using the false documents dated 9 September 2008 and 12 February 2011.
39 Charge 20 alleges that you attempted to pervert the court of justice by relying on the two affidavits of service dated 16 December 2011 in two bankruptcy proceedings in the Federal Magistrates’ Court against Vince and Maria Fato, which were dismissed[19].
[19] Proceeding no. MLG1771/11 (Vince Fato) and MLG1772/11 (Maria Fato).
40 Charge 21 alleges that you perverted the course of justice by preparing and relying on the affidavit of service dated 20 December 2011 and by entering judgment against ADC[20].
[20] Magistrates’ Court proceeding no. B13275671.
41 Charge 22 alleges that you attempted to pervert the course of justice by preparing and relying on the 2 affidavits of service dated 13 January and 8 February 2012 in Supreme Court winding up proceedings against ADC, which were discontinued[21].
[21] Proceeding no. SCI-2012-00184.
42 In her victim impact statement, Lina Fato stated, relevantly, that prior to your offending conduct she was part of a close extended family, had job security, two rental properties plus a share in the family home. She lived in Sydney and looked forward to being semi-retired by the time she was 55 years of age. As a result of your offending conduct, she had to come to Melbourne frequently to attend numerous hearings, spent a great deal of money on legal fees and worried about losing her job because of the amount of time she was taking off work. Three years ago, she and her partner moved to Melbourne. They bought a small business and a house on the fringes of suburban Melbourne. She is now 55 years old and works about 70 hours per week in various jobs, trying to keep her head above water. Prior to your offending, she was a happy, forgiving and outgoing, optimistic person. Since your offending, she has become suspicious of people and hardly ever trusts them.
Victim: S.F. Cosentino Pty Ltd (Salvatore ‘Sam’ Cosentino)
43 Your sister-in-law, Rosa Fato, is the de-facto partner of Salvatore (Sam) Cosentino. He was the sole director and shareholder S.F. Cosentino Pty Ltd (SFC). Although your company, R.E.D. Corp Pty Ltd, had no commercial relationship with SFC, you alleged that Sam Cosentino’s company was indebted to your company in the sum of $2,522,659.38.
44 Charge 16 alleges that, by preparing and relying on your two affidavits dated 19 November 2011 and by relying on the false affidavit of service dated 19 November 2011, in winding up proceedings in the Supreme Court against SFC, you attempted to pervert the course of justice[22]. The application was dismissed.
[22] Proceeding no. SCI-2020-06293.
45 In his victim impact statement, Sam Cosentino stated that he has been a vegetable grower his whole working life. He was very distressed to learn from his solicitor of Supreme Court proceedings to commence the next day, and equally distressed to receive a call from his bank manager telling him that his company was in liquidation. He was so distressed that he was unable to work for a few days. Your conduct has affected his company’s credit and he is still stressed and disappointed that he is unable to remove the winding up notice on his company.
Victim: Ross Ritoli
46 Charge 13, a charge of perjury, alleges that on or about 5 February 2012 you aided and abetted Patrizia Dattilo to prepare a false affidavit alleging a breach by Ross Ritoli of an interim intervention order issued by her against Ross Ritoli in the Magistrates’ Court[23]. The application for an intervention order was subsequently withdrawn. The prosecution is unable to say whether or to what extent either of you intended to rely on this affidavit in any forthcoming proceedings.
[23] Proceeding no. B13667556.
47 In his victim impact statement, Ross Ritoli stated that, having met you through your son’s school, you stalked his family, hired a sex worker to cause him marriage problems, and that he suffered fear and anguish seeing his wife’s fear and distress. He has lost trust in people as a result of your conduct, no longer attends school functions, and tries to avoid meeting new people. He suffered financial loss in the order of $30,000 having to fight an intervention order[24]. Although he was awarded costs in relation to that hearing, they have not been paid. He was frightened that you continued with your behaviour over a sustained period and abused the court process, and stated that it distressed him to feel unsure of what was coming next.
[24] Magistrates’ Court proceeding no. B13667556. The affected person was said to be Patricia Dattilo and the Respondent was Ross Ritoli.
Plea submissions
48 I turn to the plea made on your behalf.
49 Your counsel tendered a number of documents and I have considered them all. They include: a visa work entitlement check[25]; certificate of attainment of work health and safety procedures as part of warehousing operations course[26]; certificate of attainment of a forklift truck licence[27]; order picking forklift truck licence[28]; psychological assessment of Carla Lechner (dated 19 October 2016)[29]; psychiatric report of Associate Professor Andrew Carroll (dated 4 August 2017)[30]; a medical letter indicating that you are on the waiting list for laparoscopic sleeve gastrectomy;[31] and character references from two friends, Alberto Perin[32] and Fabio Foti[33].
[25] Exhibit DC.
[26] Exhibit DD.
[27] Exhibit DE.
[28] Exhibit DF.
[29] Exhibit DG.
[30] Exhibit DH.
[31] Exhibit DJ.
[32] Exhibit DK.
[33] Exhibit DL.
50 Each of your character referees is aware of your charges and states that you have told them you are very upset with yourself, ashamed of your offending, and are concerned of the impact of your offending on your family and your charitable activities. Each of them states that your offending is out of character.
51 Your personal circumstances are set out in the report of Ms Carla Lechner, clinical psychologist, dated 19 October 2016. You are 44 years old, have two younger sisters, and a 21 year-old son in Italy. Your parents live in Italy. You were born and educated in Italy. After completing 13 years of schooling, you did a year of military service and then worked in advertising as well as working with the Calabrian government. You came to Melbourne to work as a project manager, met Patrizia and decided to stay and open your own business, importing olive oil. You married Patrizia in 2002. You lived with her two older sisters, her mother and her aunt in Balwyn. You had the business for about 10 years. Your sisters in-law also joined the business and together you set up another few companies.
52 There were family tensions over the care of Patrizia’s mother and aunt, and the family business partnership collapsed in 2010. You told Ms Lechner that you were hospitalised in 2009 after being found wandering around distressed. You told her that before 2009 you had experienced periods when you withdrew from social contact for two to three months at a time. You told her that since 2010 you had been getting help from family overseas to pay your children’s school fees. You told her that you were your mother in-law’s carer. You told her that the current charges arose “in the context of an acrimonious separation of business affairs”, that the charges “came out of the blue” but that you have “to accept responsibility for them” [34]. You told her that at the time of offending you were psychologically stressed and not coping with the financial and personal pressure of your changed circumstances.
[34] Exhibit DG, 5.
53 On testing, Ms Lechner found that you rated “very much above average” on the Self-Deception Scale, and that persons of this profile may show arrogance, self-aggrandizement and be lacking insight[35]. She considered that your symptoms of depression and anxiety warranted a diagnosis of Adjustment Disorder with Depression and Anxiety, and that your condition was directly related to the stress associated with your financial situation and the current court proceedings. Ms Lechner concluded that you would benefit from psychological counselling.
[35] Exhibit DG, 5.
54 Associate Professor Andrew Carroll, consultant forensic psychiatrist provided a forensic psychiatric report dated 4 August 2017 to your solicitors. He noted a history of four attendances at the Austin Hospital Emergency Department in late 2009 with anxiety and headache symptoms after a fight with your wife and in the context of financial pressures. None of the attendances involved admissions, and you were cleared of any major medical or psychiatric illness. He noted Ms Lechner’s opinion and the fact that since 2016 you have been on antidepressants prescribed by your general practitioner and have had some counselling. He concluded that there was nothing in your account of matters relevant to the offending to indicate that symptoms of mental illness played any role in your offending behaviours. He noted that you presented to him with understandable worry about the potential impact of imprisonment on yourself and your family and your charitable foundation. He found no evidence, as at 4 August 2017, of any diagnosable disorder, nor of Adjustment Disorder. He noted that you are at some risk of developing Adjustment Disorder in the context of being imprisoned due to the impact on your family, your eligibility to remain in Australia, and on your marriage. To this limited extent, he considered that imprisonment would have an adverse effect on your mental health and that you would find a prison sentence to be more burdensome than would otherwise be the case. He recommended that you be linked with prison-based mental health services and continue with your antidepressant medication.
55 The material tendered on your behalf also includes 4 reports[36] relating to your children. These reports confirm that your son has an Autism Spectrum Disorder, has an IQ in the High Average range, would cope best at school in an environment that is as predictable, structured and routine as possible, and that he may benefit in enrolling in a social skills group. A progress report for your son dated 20 March 2018 indicates that your son is working well in class, is doing well academically, manages public transport and is engaging with projects to be undertaken away from school.[37]
[36] Exhibit DM.
[37] Exhibit DO.
56 A letter from school-based psychologist Christine Dais, dated 26 July 2017, indicated that, at that time, your daughter presented with an Adjustment disorder with feelings of sadness[38].
[38] Exhibit DP.
57 According to your counsel, after the demise of your businesses, you worked as a carer for your mother-in-law. In 2017, you received the NewStart Allowance and looked for work, while also obtaining forklift licences. Since late 2017, you have been working casually for a supermarket, working 13-hour shifts three to four times per week, earning around $1100 per week gross.
58 You have a limited criminal history. In 2004 you were fined $1,000 in the Melbourne Magistrates’ Court for obtaining property by deception.
59 You were sentenced in this Court on 2 November 2016 in respect of offending in 2010, which was committed prior to the current offending. You pleaded guilty to one charge of obtaining financial advantage by deception and one charge of attempting to do so. You obtained the sum of $95,000 by way of refund from the Australian Taxation Office based on a false invoice and a false receipt. You attempted to obtain a further $82,500 refund based on false documents. You were sentenced on the first charge to six months’ imprisonment to be released on a Recognisance Release Order (‘RRO’) to be of good behaviour for two years. A recognisance in the sum of $1,000 was fixed. You were sentenced on the second charge to a two year Community Corrections Order with conditions including 180 hours of unpaid community work over 6 months and mental health treatment. According to your counsel, the RRO finishes on 1 November 2018.
60 As to the gravity of your offending, your counsel conceded that the aggravating features of your conduct are that it involved a degree of premeditation and planning, and that it was a persistent course of conduct over 15 months. He conceded that your conduct had a substantial psychological and financial impact on the victims but submitted that I ought not rely on the specific amounts referred to in the victim impact statements given the lack of detail as to how these figures were arrived at. It was also submitted that I should have no regard to the merits of the substantive claims made against the various victims.
61 It was submitted that some features of your offending made it a less serious example of offending of this type. These features are that it occurred in the context of civil and not criminal proceedings, that you are not a police officer, lawyer or judge, and that the prosecution has not alleged that you knew or believed your civil claims to be false.
62 Your counsel conceded that your conduct warrants the imposition of a term of imprisonment, but relied on a number of matters in mitigation. First, your plea of guilty acknowledges your responsibility for your offending and is of utilitarian value in avoiding what would have been a three month trial, and sparing the victims the need to give evidence. Second, there has been considerable delay between the commencement of offending in 2010 and charges being laid in 2014. Some but not all of the delay since that time can be laid at your feet although it was conceded that you are responsible for the delay between October 2017 and February 2018.[39] Third, you have not re-offended for over six years, and in particular have not offended further since appearing in this Court in 2016. In this context, it was submitted your prospects for rehabilitation should be assessed as being reasonable. Fourth, you face particular hardship if imprisoned, for the following reasons. You remain on a permanent resident visa and have not obtained citizenship. Your visa will be automatically cancelled if you are sentenced to a term of imprisonment of more than 12 months. The uncertainty as to whether, thereafter, you will face deportation increases the burden of imprisonment for you. That burden is compounded by the potential that, if deported, you will be separated from your wife and children, unless they decide to accompany you. Furthermore, your family’s financial situation is precarious, your children have mental health issues and your incarceration will place a greater burden on your wife, Patrizia Dattilo, to care for them. This will further compound the burden upon you. In addition, you have a past history of anxiety or Adjustment Disorder, are currently taking anti-depressants, and have been assessed as being at risk of developing an adjustment disorder in prison.
[39] During which time Antonio Dattilo indicated he wished to change his plea.
63 In all the circumstances, your counsel requested that the court consider deferral of sentence until early next year to allow you time to work and earn money to pay the children’s school fees and to allow your prospects of rehabilitation to be further assessed.
Prosecution submissions
64 The prosecution submitted that your level of criminality is considerable given that, apart from the occasions where the false affidavits of service resulted in default judgment, on a number of occasions there were contested hearings where you relied on the false affidavits. The aggravating features of your conduct were that the offending was premeditated and planned, persisted over a period of more than a year, and caused serious financial and psychological harm to the victims. The prosecution indicated that it was difficult to find comparable cases concerning the offences of attempting or perverting the course of justice in the context of civil proceedings. However, some weight is to be given to the 25 year maximum penalty for the offences concerning perverting the course of justice and attempting to pervert the course of justice[40].
[40]Sentencing Act 1991 (Vic), s 5(2)(a).
65 In all the circumstances, counsel for the prosecution submitted that the only appropriate disposition was one of a substantial period of imprisonment. The prosecution opposed any deferral of sentence.
66 It was common ground that the offending against Ms Meagher was the most serious, and that the sentence imposed on Charge 11 would be an appropriate base sentence.
Legal principles
67 On the authorities, denunciation, specific and general deterrence are the principal purposes of sentencing for perverting the course of justice, as such sentences are thought to assist in protecting the administration of justice[41]. The degree of moral culpability may be affected by motive, and greed or a profit motive is an aggravating factor[42]. Other aggravating factors include a high degree of premeditation and planning; a persistence of the conduct over a period of time; and a sustained course of conduct over an extended period involving multiple victims. Given the importance of the administration of justice, the potential consequences of an attempt to pervert the course of justice may assume greater weight than the actual or likelihood of success of such an attempt[43].
[41] See, eg, R v Baba [1977] 2 NSWLR 502; Burnett v The Queen (1986) 8 Cr App R (S).
[42]McCready v The Queen (1985) 20 A Crim R 32.
[43]R v Taouk (1992) 65 A Crim R 387.
68 Perjury is a very serious offence because it is easy to commit but difficult to detect and prove, and because its victim is the course of justice and the proper administration of justice[44]. Where undetected, perjury can produce unjust results and lead to a decline in community confidence in the reliability of the courts. On the authorities, denunciation and general deterrence must be emphasised in fixing a sentence for perjury.
[44]R v Kellow and Townsend (Unreported, Court of Criminal Appeal, 17 August 1979).
69 In sentencing you, I must have regard to the nature and gravity of the offence; your culpability and degree of responsibility for the offence; your personal circumstances; the impact of the offence on any victim of the offence; the personal circumstances of any victim of the offence; and any injury, loss or damage resulting directly from the offence. The only evidence before me in relation to the last three of these factors is the victim impact statements.
70 As there are numerous counts and the issue of cumulation arises, the appropriate course[45] to adopt is to impose the correct sentence on each count and then to work out, having regard to the principle of totality, the proper total effective sentence, making such limited orders for cumulation as are fair in order to reach an overall sentence which does not breach the principle of totality or any other relevant sentencing principle.
[45]Director of Public Prosecutions v Grabovac [1998] 1 VR 664; R v Coukoulis (2003) 7 VR 45.
Sentencing Reasons
Gravity of offending
71 Taken as a whole, your offending can only be described as an egregious, appalling, sustained course of conduct which strikes at the heart of the integrity of the justice system and which gravely affects public confidence in the administration of justice. It is difficult to understand your motivation for acting in the way that you did. Your offending occurred in circumstances where your own business was failing and you were under financial pressure. However, in that context, instead of accepting the consequences of that business failure, you chose to embark on a course of offending against a number of victims, who were known to you, over a sustained period of more than 15 months, causing most of them, particularly Ms Meagher, serious psychological and financial hardship. You involved your wife in your offending by prevailing upon her to swear many false affidavits of service. You must have known the grief that your actions were causing your victims, but you kept repeating the conduct. Apart from the acceptance of responsibility which inheres in your plea of guilty, you have shown no remorse for the impact of your offending on your victims.
72 In assessing the gravity of your offending, it is significant that counsel were unable to find cases of comparable offending, as all the other cases brought to my attention concerned single instances of perverting or attempting to pervert the course of justice based on one or two repeated acts within the context of one proceeding.
73 I consider that, given the breadth and persistence of your offending, the meticulous planning involved in your conduct, the number of victims affected and the serious impact of your conduct on each of them, your offending lies at the upper range of seriousness for this type of offending. Such offending is to be denounced and appropriately punished, so as to deter you and others from such conduct. Critically, the sentence imposed must reflect the seriousness of your conduct in undermining the very foundations of our justice system and public confidence in its administration and that protection of the community from you remains a relevant sentencing consideration.
74 Although there has been no further offending on your part, I consider that your prospects of rehabilitation remain guarded.
75 I consider it appropriate to broadly categorise your offending into 3 groups based on the gravity of the particular offending and the consequences to its victims.
76 The most serious offending, in terms of the economic harm and emotional trauma caused, is an offence where an order for bankruptcy or the winding up of a company was actually made.
77 Charge 11 involving Ms Meagher fits into this category and I consider that the sentence imposed on Charge 11 should be the base sentence.
78 The second most serious category of offending is where an application for bankruptcy or winding up was filed and pursued but no order was made. In making this distinction, account is still to be taken of the significance of the financial detriment and emotional trauma with having to confront and oppose such applications, particularly in circumstances where the only reason that a sequestration or winding up order was not made was due to the fact that the victims were notified of the judgment debts against them by various third parties, such as credit agencies or solicitors.
79 Although Charge 13 is a charge of perjury, it relates to your aiding and abetting your co-accused, Patrizia Dattilo, in the preparation of her affidavit dated 5 February 2012 in which it was alleged that Ross Ritoli had breached the intervention order taken out against him by Patrizia Dattilo. While the prosecution conceded that it does not know the use to which the affidavit was to be put, your offending had the potential of having an innocent man convicted of a criminal offence. For this reason, your moral culpability is high and this offence can be accommodated in the second category of offending.
80 Charges 4, 5, 7, 9, 13, 15, 16, 17, 20 and 22 fall into this second category.
81 Finally, the third most serious category of offending is that where you obtained default judgments against victims. Again, this categorisation acknowledges the considerable economic and emotional harm caused to your victims. I include the conduct the subject of Charge 19 in this group, as the moral culpability involved is analogous to other charges within this group.
82 Charges 1, 2, 3, 6, 8, 10, 12, 14, 18, 19 and 21 fall into this third category.
Prior convictions, no further offending after 2010
83 You have a prior conviction in 2004 for obtaining property by deception from the Australian Taxation Office, for which you received a $1,000 fine. Your subsequent 2016 appearance at the County Court (which I do not treat as a prior conviction), was for similar deception committed in 2010 against the ATO. I take into account that there has been no further reoffending since 2010, but, in the light of your offending, still regard your prospects of rehabilitation as guarded.
Factors in mitigation
84 I take into account your plea of guilty, which has utilitarian value in sparing the court, witnesses and the community the expense and inconvenience of what would have been a lengthy trial. I acknowledge also that the victims of your conduct have been spared the ordeal of giving evidence. I have taken your plea of guilty into account as well as the portion of the delay over which you had no control; that is, the period between 2010 and being charged in 2014 and the period between February 2018 until July 2018. I note that during this period of delay, you have been uncertain as to what would happen to you.
85 I have also taken into account that your time in prison will be more burdensome for you than for another prisoner for a number of reasons: you are vulnerable to suffering an anxiety disorder; (if imprisoned for more than 12 months) your visa will be cancelled and you will suffer anxiety over the possibility of being deported; and your wife will be under a great deal of pressure to support and care for your children.
86 In all of the circumstances, I consider it appropriate to sentence you as follows. Would you please stand.
87 I turn to the most serious offending, which is represented by Charge 11. On Charge 11, you are sentenced to 2 years’ imprisonment. That is the base sentence.
88 I turn to the charges falling within the second most serious category. On Charge 4, you are sentenced to 15 months’ imprisonment. On Charge 5, you are sentenced to 15 months’ imprisonment. On Charge 7, you are sentenced to 15 months’ imprisonment. On Charge, 9 you are sentenced to 15 months’ imprisonment. On Charge 13, you are sentenced to 15 months’ imprisonment. On Charge 15, you are sentenced to 15 months’ imprisonment. On Charge 16, you are sentenced to 15 months’ imprisonment. On Charge 17, you are sentenced to 15 months’ imprisonment. On Charge 20, you are sentenced to 15 months’ imprisonment. On Charge 22, you are sentenced to 15 months’ imprisonment.
89 I turn to the charges falling within the third most serious category. On Charge 1, you are sentenced to 12 months’ imprisonment. On Charge 2, you are sentenced to 12 months’ imprisonment. On Charge 3, you are sentenced to 12 months’ imprisonment. On Charge 6, you are sentenced to 12 months’ imprisonment. On Charge 8, you are sentenced to 12 months’ imprisonment. On Charge 10, you are sentenced to 12 months’ imprisonment. On Charge 12, you are sentenced to 12 months’ imprisonment. On Charge 14, you are sentenced to 12 months’ imprisonment. On Charge 18, you are sentenced to 12 months’ imprisonment. On Charge 19, you are sentenced to 12 months’ imprisonment. On Charge 21, you are sentenced to 12 months’ imprisonment.
90 I turn to the issue of cumulation. The parties agree that there should be some cumulation to account for the different victims and the persistence of the conduct.
91 I consider that in the instant case cumulation of some of the individual sentences is appropriate for a number of reasons. First, each of the offences represents a separate incursion into criminal conduct. Second, many of the offences represent multiple acts. Third, the offences occurred over a period of time and involved different victims with different legal interests. Fourth, it is necessary to properly reflect the different circumstances of the offending with respect to each of the victims. Fifth, it is necessary to ensure that the victims of the latter charges on the indictment do not become “meaningless statistics”. Sixth, it is necessary to properly reflect the sentencing principles of specific and general deterrence. Finally, the circumstances of the offending means that it is necessary to maintain public confidence in the justice system.
92 In determining the extent to which there should be cumulation in respect of each sentence, I have taken into account what is an appropriate total effective sentence having regard to the principle of totality, and moderated the cumulation for particular sentences in order to comply with that principle. I indicate, compendiously, that my intention is that in respect of each of the charges in the second most serious category of offending, that is, charges 4, 5, 7, 9, 13, 15, 16, 17, 20 and 22, there be 4 months’ cumulation upon the base sentence, and that in respect of charges falling within the third category referred to above, that is, charges 1, 2, 3, 6, 8, 10, 14, 18, 19 and 21, there be 3 months’ cumulation upon the base sentence and upon each other.
93 I now express the individual orders with respect to cumulation.
94 Three months of the sentence imposed on Charge 1; three months of the sentence imposed on Charge 2; three months of the sentence imposed on Charge 3; four months of the sentence imposed on Charge 4; four months of the sentence imposed on Charge 5; three months of the sentence imposed on Charge 6; four months of the sentence imposed on Charge 7; three months of the sentence imposed on Charge 8; four months of the sentence imposed on Charge 9; three months of the sentence imposed on Charge 10; three months of the sentence imposed on Charge 12; four months of the sentence imposed on Charge 13; three months of the sentence imposed on Charge 14; four months of the sentence imposed on Charge 15; four months of the sentence imposed on Charge 16; four months of the sentence imposed on Charge 17; three months of the sentence imposed on Charge 18; three months of the sentence imposed on Charge 19; four months of the sentence imposed on Charge 20; three months of the sentence imposed on Charge 21; and four months of the sentence imposed on Charge 22 are to be served cumulatively on the sentence imposed on Charge 11 and upon each other.
95 The total effective sentence is one of 8 years and 1 months’ imprisonment. I direct that you serve a period of 6 years in prison before becoming eligible for parole.
96 I indicate pursuant to s 6AAA of the Sentencing Act1991 that but for your plea of guilty I would have imposed a sentence of 11 years’ imprisonment with a non-parole period of 8 years.
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