Director of Public Prosecutions v Cappelli

[2019] VCC 2118

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01259 & CR-18-01103

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
BRADLEY ANTHONY CAPPELLI	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	3 & 18 October 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v CAPPELLI
MEDIUM NEUTRAL CITATION:	[2019] VCC 2118

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE    

Catchwords:             10 Charges of Obtaining Property by Deception and one charge of obtaining financial advantage by deception

Legislation Cited:     Domestic Building Contracts Act 1995 - Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102; Veen v R (No.2) (1988) 164 CLR 465; Muldrock v R (2011) 244 CLR 120; Wright v R [2015] VSCA 333; Taylor v The Queen [2019] VSCA 162, Friel v The Queen [2018] VSCA 48, Dawn-Manuel v The Queen [2015] VSCA 212, Lomaccchio v The Queen [2015] VSCA 195, Gianello v The Queen [2015] VSCA 205, Akkala v The Queen [2012] VSCA 29; DPP v Dalgliesh [2017] HCA 41

Sentence:                 Total effective sentence of six years’ and six months’ with a NPP of four years’ and three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Y. Hardjadibrata	Solicitor for the Office of Public Prosecutions
For the Defendant	Mr A. Lavery	Emma Turnbull Lawyers

HIS HONOUR:

1       Bradley Cappelli on 3 July 2019 you pleaded guilty in this Court of 10 Charges of Obtaining Property by Deception (maximum penalty 10 years' imprisonment) and one Charge of obtaining financial advantage by deception (maximum penalty of 10 years' imprisonment.)

2       The Prosecution tendered on the Plea an extensive Prosecution Summary on the Plea commensurate with your offending.  While the Court has sought to summarise the circumstances of offending to provide the necessary context as the background for its Reasons for Sentence it is not a substitute for the Prosecution Summary the basis on which you fall to be sentenced.

Summary of Circumstances of Offending

3       Between February and December 2013, you falsely represented to 12 home owners that you were a builder and agreed to carry out, and unlawfully commenced, major domestic building work at 11 properties of those owners without applying for or obtaining the necessary building permits.

4       

You were carrying on the business as a builder in your own name, then trading as NC Labour to carry out the building works.  NC Labour was initially established in or about December 2012 as a partnership business to carry out handyman and property maintenance services.  David Vocale (Vocale), your brother in law being the other side of the partner with you and your wife.  On

17 June 2013, an accountant incorporated the business as NC Labour Pty Ltd on your instructions.  Vocale became the sole director, secretary and shareholder of the company.  Vocale agreed to become involved in the company at the your request after you told him you were ineligible to be a director.  Vocale, a qualified carpenter, worked on most of the properties that home owners had engaged you or the company.  NC Labour held a Commonwealth Bank account which you and Vocale had access via internet banking and debit cards.  You were the principal person behind the business NC Labour and the company NC Labour Pty Ltd.  You were the person who negotiated and entered into agreements with home owners for building works and for the most part, were paid for those building works.

5       Each of the domestic building works that you agreed to carry out and commenced to carry out were major building works with a value of more than $5,000.  The builder was therefore required under the Domestic Building Contracts Act 1995 to be a registered builder. If it was a company, a director was required to be a registered builder. Registered builders are generally required to take out insurance unless exempted. You or none of the persons associated with you or NC Labour or NC Labour Pty Ltd were registered builders. You are a panel beater by trade.

6       You falsely represented that you or a person associated with you or your company was a builder.  The false representations were express, or implied, by your oral and written words or by your or your company's conduct.  On some occasions you orally told the home owner you were a builder; on other occasions a written agreement was prepared in which was set out the building work that was to be performed.  In all cases, you or your company after agreeing to perform the major or substantial building works, commenced to carry out some of the building works in accordance with the agreement.

7       When interviewed by police on 28 April 2015, you denied you pretended to be a builder, but said that you were just a 'competent chippie' who helped out the boys.  Your role in the company being to speak to clients and arrange for payment.

8       The building works that you agreed that you or your company would perform was work for or, in connection with, the construction, demolition or removal of a domestic building or part of a such a building.  They were major or substantial building works that required building permits.  It is unlawful to conduct major domestic building works without such permits.

9       You falsely represented that the building works you agreed that you or the company would perform was lawful, that is that building permits had been or would be obtained.  You made these false representations expressly or impliedly, by words or conduct.  On some occasions, you orally represented to home owners that building permits would be obtained before the building works commenced; on other occasions, a written agreement stipulated that building permits would be obtained.  On other occasions, you commenced the major building works without the necessary building permits being applied for or obtained.

10      When interviewed by police on 28 April 2015, you said that people were hiring NC Labour for a labour service and that the owner is responsible for their own building permits because they are 'owner builders'.

11      None of the owners of properties who engaged you or your company were builders or qualified as builders and engaged you, or the company to perform building works on their properties in the belief that they were the builders.

12      As a result of his false representations, you or your company obtained payments by way of cash, cheques or money transfers, for the agreed building works.  You or the company thereby obtained property or a financial advantage by deception.  The total fraud alleged is $650,750.

Charge 1: Niki Vavasis $19,300

13      In around February or March 2013 Niki and George Vavasis decided to deck the area at the rear of their house.  Niki’s nephew had just had decking done at his own residence and told her you were happy with the builder and gave her your name from NC Labour.

14      Niki Vavasis called you and told you what she wanted done.  In early April 2013, you attended the Vavasis property.  After taking measurements and making a phone call about the decking material, you offered to undertake the work for more than $6,000 and it was eventually agreed upon for a cash price of $6,000, which included two weeks labour.  You stated you would provide the whole of the materials and asked for money immediately, she could only give you $1,000 cash at that time.

15      During the following week, you attended the property with Vocale and three workers, and commenced work.  At the time, Niki Vavasis asked for a quote for extending the decking across the back lawn.  You agreed on a cost of $2,000, and asked for the balance of payment of $5,000, from the original quote.  On or about 16 April 2013, Niki Vavasis paid you $5,000 in cash.  Additional works were asked to be done including replacing the sliding door and a window with bi-fold doors.  The work was taking longer than expected and labour costs were increasing.  Niki Vavasis and you agreed to a total cost for all the work of $19,300.  On or about 26 April 2013, Niki Vavasis paid $8,300 in cash to you, following payment workmen were less regular in attending the property to conduct work.  On or about 6 June 2013, Niki Vavasis paid the last payment of $5,000 cash, when you promised to complete the work that weekend.

16      

The last time workmen attended to work at the property was in July 2013.  Despite repeated calls and text messages, neither you nor anyone from

NC Labour ever returned to complete the work.  Eventually Niki Vavasis engaged another builder to complete the work at a further cost of $4,500.  She never received the three lots of bi-fold doors that she paid you for.  No mention was made to Niki Vavasis of any building permits being required for the work to be undertaken and Vocale was told by you that permits for the building work at the property were requested from the local council.  Council records reveal that no plans were submitted or building permits applied for, or issued for the building work.  When interviewed on 28 April 2015, you admitted that work was done at the property and said that building plans and permits were already there.

Charge 2: Xiao Yun Yan – $40,000

You met Ms Yun Yan in her capacity as a therapeutic masseuse and told her you were a builder.  You met again at 2 Bancroft Street, Wollert, which you said was your showroom, to discuss building a house in Drysdale you told her that you would take care of all plans and permits.  On 23 April 2013, a 'binding bond' between NC Labour and Xia Yun Yan was signed, in which NC Labour agreed to 'construct on lot No.45, No.65 Anstead Avenue, Drysdale a four-bedroom brick veneer dwelling'.  The 'agreed price' was $175,000, with $20,000 payment upon signing and a 'further $20,000 payment will be taken upon completion of the slab'.  The document stipulated that 'Plans/permits and CPAD approval would be approximately 4-6 weeks'.  The document was under NC Labour letterhead and signed by Xia Yun Yan as 'known part/owner' and 'N Cappelli' as 'NC Labour Director'.  The signatures were witnessed and at some stage and you also provided your business card under NC Labour letterhead and the words 'for all maintenance and construction'.

17      

You were insistent on getting the deposit paid in cash, but the first payment of $20,000 was transferred through Ms Yun Yan NAB bank account on

24 April 2013.  You were also insistent on the second deposit being paid even though no work had been done at the property, and attended at Xia Yun Yan's house with his pregnant wife, Nicole Cappelli to attract sympathy.

18      

On 17 June 2013, you were paid the second deposit of $20,000 in cash and gave a handwritten receipt under NC Labour letterhead that acknowledged receipt of the two payments of $20,000.  The document was signed by

Nicole Cappelli on 10 July 2013, the Drysdale land was cut, there was no permission or permit given by the Geelong City Council for this work to be done.

19      You sent Xia Yun Yan photos of concreting being done on 10 August 2013, these were photos of another property.  On 8 September 2013, you attended Xia Yun Yan's house at her insistence and signed as NC Labour representative, a handwritten document under NC Labour letterhead, in which you agreed that if the concrete slab was not completed by 18 September 2013, then all money paid of $40,000 would be returned.

20      In an email dated 9 September 2013 that the Geelong council building surveyor had sent to NC Labour there were set out 12 matters that needed to be attended to before the building permit application for the property at 65 Anstead Avenue, Drysdale could be further considered.  Amongst the matters that had to be attended to were, 'The plans appear to (sic) be generic off shelf drawings no details of site specific', and 'Owner builder or registered builder carrying out the works'.

21      Council records revealed that a building permit application for a new dwelling and garage had been lodged for the property on 28 August 2013, but was withdrawn on 9 December 2014 and no building permit or planning permit has been issued in respect of the property.

22      Sometime between September 2013 and January 2014, Xian Yun Yan confronted you and alleged you were not a builder, you agreed but said you had contracts and the house would be built.

23      In January 2014, Xian Yun Yan initiated civil proceedings in VCAT against you but you failed to attend on both occasions and she was advised to take the matter to police.  Before she made a complaint, she was contacted by detectives from Knox police station.  In a telephone conversation, you offered to pay the money back.  When interviewed on 28 April 2015, you admitted that the company agreed to do work at the property, money was received for the work and not repaid, nor the concrete slab prepared or poured, but said that it was the owner’s responsibility to get permits as owner builder.

Charge 3- Dean Hannan - $147,000

24      Dean Hannan first met the accused to discuss minor renovations to his house comprising of tiling various floors and painting work.  This was on 27 June 2013.  Hannan agreed to more extensive renovations to the value of $87,000.  The more extensive works comprised of the original floor tiles, the original painting as well as hardwood floor, bathroom and kitchen renovations, and an en-suite extension to the master bedroom.  He agreed to the additional works as the price was so good and you agreed to complete the work in eight weeks.

25      

On 2 July 2013, a handwritten 'binding bond' between NC Labour and

Dean Hannan was signed under NC Labour letterhead.  The document stipulated that 'all work is negotiable during construction' and the total price for the 'complete renovation' including labour and materials was $87,000, you signed for NC Labour.  Dean Hannan made a number of cash payments to you consisting of $29,000 on 3 July 2013, $26,000 on 5 July 2013, $15,000 on 19 July 2013, $12,000 on 22 July 2013, $5,000 on 23 July 2013 being the last of the payments for the agreed quote of $87,000.

26      Work on the renovations commenced on 12 July 2013, after Dean Hannan and his family were on holiday.  You contacted Mr Hannan was on holiday and claimed to have identified an illegal plumbing problem requiring rectification and you exchanged phone calls and text messages about the problem.  Upon returning from holidays on 18 July 2013, he discovered that three quarters of the walls and plaster of the house had been removed, together with the plumbing pipes.  You told him that your father, who was a former builder and engineer, had attended the house and was of the view that he would receive compensation from the council for approving the illegal plumbing.  These representations were false and were used to induce Dean Hannan to pay for additional work at the property.

27      

You continued to exchange phone calls and text messages about the purported plumbing problem and compensation for it.  One text message you sent on

24 July 2013, was purportedly forwarded from his solicitor and confirmed $350,000 compensation from the council had been agreed and would be paid within 30 days.

28      As a result of this text message, he paid you a further $60,000 for the rectification works for the purported illegal plumbing and other additional renovations to the house.  He made further cash payments of $20,000 each to you on 25, 26 July 2013, which he borrowed from his father.

29      After the last payment, you were not seen again and work became sporadic until it stopped on or about 10 August 2013.  Despite calls and text messages to you, work on the renovations did not resume, materials that were paid for and none of the claimed compensation money was ever received.

30      David Vocale also worked on the renovations at the property, you told him that building permits had been requested from the council for the renovation work.  Council records revealed that no plans or permits had been submitted for the renovation work at the property and no building permits were applied for, or issued.

31      When interviewed on 28 April 2015, you admitted that work was done at the property but denied that $87,000 had been paid or that the interior work to redo the house required a building permit.  Additionally, that you 'bullshitted to him' in relation to the $350,000 compensation claim 'in order to get work out of him'; it was a 'total fabrication, made it up', and agreed that it was a lie to obtain the $60,000 and you would 'plead guilty to that $60,000'.

Charge 4 - Sheena Dunn $49,850

32      Retirees Sheena Dunn and her husband Alexander decided to renovate the family home in Dewhurst in 2013.  They wanted to extend the double garage so that it became part of the house and extend the veranda.  They were referred to NC Labour via a co-worker of their son.  You spoke with her by phone and arranged to attend their house on 10 July 2013 and gave them a quote on the extensions.  On that day you provided Ms Dunn with a handwritten quote of $44,500 for the works and stipulated that the full amount had to be paid before work commenced.  The quote was signed by you on behalf of NC Labour and acknowledged that $23,540 had been paid for materials.  You stated the work would be completed in three weeks and would take care of the building permits, as your father was also a building surveyor.  Ms Dunn withdrew $23,000 in cash with an additional $540, paid to you.

33      

She obtained an unsigned 'works agreement' between herself and

NC Labour Pty Ltd dated 16 July 2013 which set out the construction and building work to be completed by NC Labour Pty Ltd (although the total cost was $53,000).  A further works agreement was also provided by you with handwritten annotations and the signatures of you and Ms Dunn dated '17/7/13'.  The annotations included payment of $8,500 for additional materials, which was paid to you in cash.

34      

Work commenced at the house on or about 22 July 2013 and proceeded haphazardly for the next four months.  Further, cash payments were made for the works, on 10 September 2013 $11,000 was paid to David Vocale, on

25 October 2013 $4,000 was paid to you and on 29 October 2013 $2,850 paid to David Vocale.  The total payments made to NC Labour was $49,850.

35      Despite the promise to complete the works within three weeks, not all the materials had been delivered and the work remained incomplete by 21 October 2013.  After that no further work was conducted at the property, Ms Dunn terminated the agreement with NC Labour Pty Ltd on 27 November 2013.  She discovered from inquiries with the council that no planning or building permits had been applied for or issued.  A new builder was engaged to obtain the necessary plans and permits, rectify and complete the building works commenced by the you and NC Labour Pty Ltd.

36      Council records revealed no building plans were submitted or building permits applied for or issued for the property.

37      When you were interviewed on 8 July 2015, you agreed that a garage was built at the property for about $50,000, but could not recall what payments had been made or the amounts and said that it was the owner’s responsibility to obtain permits as owner builders.  You and Vocale, would discuss the work with the owner and discuss prices and that, 'NC Labour was a labour hire company.  You hire us.  We build what you want'.

Charge 5 John Talevski – $57,100

38      John Talevski wanted to renovate his house at Burwood East.  In July 2013, he contacted you after Dean Hannan told him that you were doing renovations for him and were competitively priced.  After attending at the property, you quoted a price of $50,000 for constructing the additional lounge room and replacing the kitchen with a new kitchen.

39      

John Talevski agreed to the quoted price for the work and used the $55,982 surplus on his home loan to draw down and pay for the renovations.  You undertook to obtain all the necessary planning and building permits from the council as part of the deal.  Mr Talevski then paid you a total of $56,100 consisting of $33,000 on 17 July 2013, $2,000 on 20 July 2013, $7,500 on

7 August 2013  and $14,600 on 13 August 2013 after redrawing from his home loan account.  After the first payment on 17 July 2013, Mr Talevski asked for a copy of the building contract for the agreed works you told him your wife did all the paperwork and not to worry.  No building contract was ever supplied.

40      Work commenced on the house by way of demolition works on 19 July 2013.  One of the workman asking Talevski if he had the proposed plans for the construction, he was directed to speak to you as you were the builder.  The workmen eventually quit the job.  The payment of $2,000 on 20 July 2013, was made after John Televski was falsely informed, to induce him to pay for additional work, that workman had found asbestos in the eves of the house and agreed for you to arrange for its removal.

41      The work on the additional lounge room was almost completed and work on demolishing the kitchen had commenced, when Talevski noticed that there had been no building inspections for the property.  He asked Vocale about these inspections but was told to speak to you, having been told by you that you had requested building permits from the council.

42      After all payments had been made, Talevski was informed that building inspectors had attended the property and shut down the work as no building permits had been applied for.  Council records revealed that no building plans had been submitted and no building permits applied for or issued in respect of the property.

43      By that time, the work on the lounge room and kitchen was still incomplete, with exposed live electrical wires throughout, and the existing decking and pergola to the house was demolished.  Part of the demolition work for the kitchen included removal of the kitchen floor, which John Talevski did not agree to.

Charge 6 Angela Niolakis $172,400

44      In July 2013 Angela and Nick Niolakis wanted to renovate their family home at Bullen, which included a third floor extension.  They had been given your name as a builder by John and Tina Talevski, for whom you were constructing a house extension.  They had already obtained engineering plans and building permits for the renovations and extension, but you convinced them to make further renovations when you attended their house in mid to late July 2013.  You undertook to obtain additional plans and permits from the council for the further renovations agreed.

45      

By a works agreement between NC Labour Pty Ltd and Nick Niolakis, dated

30 July 2013, the company was engaged to 'Build and construct upper third story dwelling as per supplied plans' at the property for a total amount of $176,000 inclusive of materials and labour.  The agreement stipulated that building material was to be paid in full prior to work commencing and that the builder would request part payment during construction.  The document was signed by Angela and Nick Niolakis as owners and you, as the company representative.

46      Between 22 July 2013 and 18 October 2013 Angela Niolakis paid you $107,600 in cash and $68,400 by personal cheque.  The total amount paid was $172,400.  No receipts were supplied for these payments.  An unsigned NC Labour works agreement dated 18 February 2014 confirmed that payment for material had been 'paid in full'.  Manningham City Council confirmed that the extension to the house required a building permit but no additional plans or building permits had been submitted or applied for since 1 July 2013 and no appointments were made with in respect of those plans or permits.

47      Work finally commenced in November 2013 when the concrete base for the extension was poured. Overall there were 7-10 days work conducted on the outside of the property, before work ceased and remained uncompleted.  The Niolakis’ were in contact with you, your wife, and your father Camillo Cappelli when they fell out with you after you requested further money.  In addition to the construction work not being completed, various materials, appliances or furniture which had been paid for, for which you claimed to have purchased and were 'in storage at the factory', were never delivered to the Niolakis’.  NC Labour never had any accounts with suppliers, never had a factory or warehouse, and the storage facility was only large enough to store company trailers and tools.

Charge 7 Julie Phillips-Rees and Milka Hutchins $73,200

48      In June 2013, Julie Phillip-Rees and her two teenaged daughters moved back into her mother's house at Lalor.  They realised that the house was too small for the four of them and started looking at building an extension to the house.  Julie Phillip-Rees was referred to you by the Talevskis.

49      

You attended the property and quoted works for a total sum of $45,000.  You said that you and your father were professional builders and would obtain all the plans, planning and building permits.  You asked for $30,000 immediately to obtain the materials from your supplier and pay for the initial labour costs.  On 15 August 2013 Milka Hutchins withdrew $30,000 cash and gave it to you the same day.  You promised the work would commence in early

September 2013 and completed November 2013, when Milka Hutchins was overseas.

50      After numerous calls and text messages, some building material was finally received at the house in late September or early October 2013, and worked commenced soon thereafter.  Vocale was at the site most of the time and identified himself as the site manager, your father and wife were also present at the site on occasions with you.  Your father said he was an engineer and was the one who was obtaining the plans and permits.  When Julia Phillips-Rees asked why they could start work without plans or permits, she was told not to worry and again you had told Vocale that building plans and permits for the property had been requested from the council.

51      Julie Phillips-Rees kept asking your wife for receipts for payment of money.  She was emailed attaching an unsigned 'Works agreement between NC Labour Pty Ltd and Julie Phillips' dated 30 September 2013.  The document set out the total cost of the work to be performed as '$70,000 + Labour TBA (inc GST)'.  When Julie Phillips-Rees pointed out that the agreement was that and the total cost of the work was $45,000, Nicole Cappelli said that, 'That's what it is.'

52       

Further payments were also made to you consisting of:  $1,600 on

24 September 2013, $2,000 cash on 23 October 2013, $5,800 on

28 October 2013, for purported asbestos removal that was never performed; $17,800 cash on 6 November 2013; and $16,000 cash on 14 November 2013.  Again some appliances and materials never existed with you representing that they had been purchased and were at the factory.  NC Labour never held any accounts with suppliers, never had a factory or warehouse, and the only storage facility was large enough to store company trailers and tools.  The representations about the asbestos were false and was made by you to induce payment for additional work.

53      You were repeatedly asked by the principles for receipts and plans and permits.  None was ever produced.  Council records reveal that no plans were submitted or permits applied for or issued in respect of the work at the property.

54      The work on the property was ad hoc and sporadic.  In early December 2013, Julie Phillips-Rees and her mother were concerned about the lack of building permits and put a stop to the works.  On 4 December 2013, she received an angry message from you, which read in part, 'I don't know what the hell is going on I was told that you believe that what we've done is not worth 70 it is not even close to finished nor has all the cool stuff gone in... As far as permit concerned I no (sic)... what I am doing...' This text message is an admission by you that $70,000 payments had been made and that you did make representations about obtaining permits and knew that they were necessary for the building work.  By the time work was stopped, $73,000 had been paid to, very little building material had been supplied, and the work was far from completed.

Charge 8 Angie Singh - $49,000

55      In August 2013, Angie Singh wanted to renovate her family home at Rowville.  She was referred to you by an acquaintance, Dean Hannan.  Angie Singh contacted you and requested a quote for the renovations, following discussions and upon attendance at the property a total price of $59,000 was agreed.  The total price included you obtaining the building permits and plans and all the necessary paperwork, you told her that your father was an engineer so it wouldn't be a problem.  Vocale worked at the property, and  again was told by you building permits had been requested from the council.

56      

On 30 August 2013, you signed a works agreement as representative of

NC Labour Pty Ltd in respect of the renovations.  The agreement stipulated that the total cost of materials was $49,000 and that this was to be paid in full prior to work commencing.  Angie Singh paid a total amount of $49,000 in cash between 22 August and 3 September 2013, with a receipt dated 17 September 2013 signed by you confirming payment of $49,000 for materials and you confirmed this again in a recorded phone conversation on 24 December 2013.

57      There were communications between you and Ms Singh that there had been a delay but that building permits had been approved and you promised to bring the drawings and commence work.  You never brought those drawings and work commenced on 18 September 2013.

58      The work commenced with demolition works to existing parts of the house and continued with the removal of part of the roof at the back of the house.  While the roof was removed, it rained, causing damage to parts of the house and forcing Angie Singh to buy tarpaulins to cover it up.  The roof was eventually replaced but all work on the renovations stopped by 1 November 2013, despite daily calls and text messages you asking for work to recommence.

59      The last time you  attended the property was on 27 December 2013, you asked for $3,000 that you initially said was for more materials and then claimed it was actually for labour.  Ms Singh later discovered that no building permits had been issued in respect of the work at the property.  The construction work remained uncompleted and the balance of the materials were never delivered.  Council records again confirming that no building plans were submitted or building permits applied for or issued in respect of the property.

Charge 9 Rodney Luke -$24,300

60      In August 2013, Rodney Luke wanted to install a swim spa he had purchased and accompanying renovations for his property at Rowville.  He was supplied with your name and the NC Labour by an owner of a local coffee shop.

61      On 30 August 2013, he contacted you and arranged for you to attend the house.  During your discussions, Rodney Luke made it clear that he needed building plans and permits as he was having issues with his neighbours, you stated that it was not a problem as your dad was an engineer and did all the plans and drafting side of things.  A written quote in the form of an unsigned works agreement between NC Labour Pty Ltd and Rodney Luke under NC Labour letterhead dated 2 September 2013 was provided.  The total amount quoted was $26-28,000 and included $18,200 for materials.  The document set out the construction work to be performed and stipulated that all materials had to be paid for in full before work commenced.

62      You attended Rodney Luke's house later that day and when Rodney Luke agreed to the quoted price you asked for the full amount for the materials in cash.  M r Luke told you he would transfer the money instead and made five payments totalling $24,300 between 3 September and 23 October 2013.

63      Following the payment of $18,200 for materials, you exchanged messages about when works would commence, you replied that you were waiting for council approval and work would commence the following week.  Rodney Luke requested a copy of the plans, which were never provided.

64      Work finally commenced on 28 September 2013, with the arrival of Vocale and another worker at the site.  A hole was dug for the spa and when that was completed, work on constructing the pergola commenced on 10 October 2013.  Vocale was again told by you that permits had been requested from the council.

65      On 29 October 2013, inspectors from the Knox City Council attended the property and issued a stop work notice as the building work was unauthorised.  In an exchanged of text messages between you and Mr Luke, you said you and your father would attend to sort this out and that permits could be lodged at the end of the project.  Rodney Luke attended the council and confirmed that no application for building permits had been submitted and no permits issued.  Despite this, you continued in messages to insist that the council had the plans and permits.  In an email sent on 21 November 2013, you stated that everything was in the hands of your solicitors for mediation and subsequently declined to provide details of your solicitors.  Rodney Luke kept a list of the materials for the building works that had been paid for but not received.

Charge 10 Thanh Luong - $26,000

66      In August 2013 Thanh Luong wanted to build a third-floor extension to his house in Dandenong.  He first met you at the business premises of Dean Hannan.  You were invited to attend his house to see if you could build the upstairs extension.  On 11 August 2013, you and your wife attended the house and quoted $50,000-$54,000 for the work.  You wanted payment of $26,000 for the materials up front before the work commenced.  Thanh Luong agreed and asked for a written contract.

67      

The next day, a works agreement was signed by you as representative of

NC Labour Pty Ltd and Thanh Luong, and witnessed by a Justice of the Peace.  The agreement stipulated that 'All appropriate documents, that is certificates, permits et cetera, will be handed over on completion'.  A handwritten annotation on the agreement signed by you recorded that $26,000 for material was paid in full by receipt of $10,000 cash and a $16,000 cheque.

68      As part of the verbal agreement, you were to draft plans for the extension two weeks after the agreement was signed, the plans were never provided.  Finally, on 30 October 2013 you sent an email to Thanh Luong attaching the plans for the extension.  The plans were unacceptable as they were not designed for this house and did not include a staircase to the third floor.  You attended the property and said you would amend the plans and tried to persuade Luong to subdivide his property, but he refused.

69      There were further communications between the two of you about the plans but nothing further was done, and from 1 November 2013, Luong started asking for his money back.  On 1 November 2013, you sent a message to Luong advising you had the plans and council papers and he rightly did not believe you despite your insistence.  On one occasion, you even called and claimed to be at the council with your father attending to the plans and permits.  When Luong later phoned the council's building department, he was told that they knew nothing of the plans or the extension and had no appointments for that day.

70      George Drakopoulos, a senior building surveyor’s assistant with the City of Greater Dandenong confirmed the following:  he had never spoken to or had any correspondence with you or NC Labour Pty Ltd in relation any property; there was no record of any applications for a planning permit or a building permit against the property; no notifications of the appointment of a private building surveyor or lodgement of any required documents; the proposed third story addition to the property is not exempt from the requirement to obtain a building permit; and council records confirm that no plans were submitted and no applications for building permits were made or issued in respect of the extension.

71      

Despite repeated calls and text messages in which you promised to pay

Thanh Luong’s money back, nothing has been received at the time of the plea.

Charge 11 Dimitrios (known as Jim) Pilakis - $20,000

72      Jim Pilakis met you on 3 October 2013 on the side of the road after your Holden utility had broken down and he stopped to help.  While waiting for a tow truck you informed Jim Pilakis that you were a builder and showed him photos of the work you had done.  You told him you installed kitchens and had a $50,000 kitchen with all the appliances that you could sell to him for $15,000.  You attended Jim Pilakis' home in Lalor on 4 October 2013 and quoted a price of $20,000 for the demolition and removal of the existing kitchen and the installation of the new kitchen with all the appliances, which was agreed to.

73      A few days later you attended with your father, who said he was a qualified builder and would be doing part of the work.  As previously noted neither you nor Cam Cappelli were in fact qualified builders.  On 8 October 2013, Pilakis' loan was approved and $20,000 was deposited into his Commonwealth Bank account.  On 13 October 2013, he received phone calls from you, and later your wife, who identified herself as a director of NC Labour.  You him that you needed $15,000 up front as you had already paid for the kitchen.  Your wife asked for $10,000 up front and sent a text message asking for his name and address.  Jim Pilakis agreed to pay $10,000 up front and $10,000 on completion of the work.

74      The next day you attended at the property signed a 'Works agreement between NC Labour Pty Ltd and Jim Pilakis' dated 14 October 2013.  The document set out the work that would be executed and the total cost of $20,000, comprising of $17,800 for materials and $2,200 for labour.  The document included a handwritten annotation that a $10,000 deposit for materials had been paid and that there was a balance of $10,000 remaining.  You stated that the kitchen would be installed within 12 working days.

75      On 16 October 2013, two workers, David and Troy attended at the house for an hour and a half.  They disconnected the electricity, gas and the water supply and commenced dismantling the existing kitchen.  Pilakis was without power and water for two weeks.

76      On 17 October 2013, David and another worker Justin, attended to remove the plasterboard from the ceiling in the kitchen.  You arrived as they were working.  Whilst David was in the ceiling he yelled out to you that there was asbestos in the roof.  You told Pilakis that it would cost $3,500 - $8,500 for the asbestos to be removed and you needed the $10,000 balance to be paid to continue work on the site, the money was subsequently withdrawn and paid to you.  The workers then continued to demolish the ceiling and walls of the kitchen and removed the material, including the material said to be asbestos, onto a pile in front of the driveway.  The material remained there for eight weeks and no professional company or workers were used to remove it.  The representations about the asbestos were false and used to induce Jim Pilakis to pay the balance of the money for the building work.

77      

On 18 October 2013, you attended with your father Cam Cappelli and told

Jim Pilakis that Cam Cappelli was taking over the kitchen operation.  After this date, no further workers attended the house and work stopped, despite calls and text messages to the you and your wife to complete the work to the half-demolished house.  On 19 November 2013, Cam Cappelli and David attended the house and removed the wiring from the ceiling and rewired it.  Pilakis later had to engage a qualified electrician to replace the wiring that has been installed as it was the wrong gauge.  On 26 November 2013, two workers named Garth and Tom attended the site but left without carrying out any work as no building material had been delivered to the house.  Garth returned on 29 November 2013 and again left without carrying out any work.

78      As per your modus operandi, Vocale, who worked on the site, was told by you that plans and permits for the building works at the property had been requested from the council and council records revealed that no plans had been submitted and no permits had been applied for or issued.  Pilakis employed another builder and contractors to install the kitchen and repair the damage caused by you and your company at a total cost of $40,000.

Police Investigation

79      On 28 April 2015, investigating police executed search warrants at your house in Lalor and at your estranged wife’s house in Epping where documents and computers were seized.  Subsequent examinations of the documents and computers revealed many documents and electronic files which were relevant to the alleged frauds.  You were arrested upon your return to the property that day and taken to the Epping Police Station where you were interviewed.  You were interviewed again by Police on 8 July 2015 and apart from the comments contained in the Prosecution Summary gave 'no comment' answers to allegations made by Police.

80      Confirmation has been obtained from relevant councils and the Victorian Building Practitioner’s Board that at the time works commenced at each respective addresses, no plans or permits were issued by any council, and you, your wife, father or Vocale were registered on the Register of Building Practitioners.  The bank statements of NC Labour Pty Ltd show the corresponding receipt of payments made by home owners by way of credit transfers and cheque deposits.

Assessment of Gravity of Offending

81      Neither Counsel provided to the Court a submission as to where you offending should be viewed as falling on the objective scale for offending of this kind.  However, it is clear that this offending can only be viewed as serious and prolonged offending, consisting of an identical or largely similar modus operandi on your part, against multiple complainants with varying degrees of vulnerability with profound and long lasting impacts on your victims caused by your breach of trust and callousness.

82      Your counsel did submit that there was no evidence of enrichment for these offences.  These matters were tied up with the operation of NC Labour that was submitted to be highly price competitive.  There had been no evidence placed before the court that you had derived more than remuneration for being on the worksite, and had been receiving payment which was used to cover the day to day expenses of you and your former wife.  It was properly conceded that there was a high degree of misery left behind.  However, that while this offending falls to you for the activities of NC Labour that Vocale was the sole director and shareholder from midway through the offending and that in pleading guilty you had foregone opportunity to tell your story, this was submitted to give context to your offending but not excuse it.  The Prosecution in response submitted that you were the one making all of the representations to the victims, in most of all of the instances the one who received the monies aside from an instance with Vocale and you remained a joint signatory of the company bank account.

Victim Impact Statements

83      On the Plea a number of your victims attend and read their victim impact statements.  Ms Julie-Anne Phillips-Rees attended and read her victim impact statement which was tendered as Exhibit A.  She told the court that having been deceived by you she feels anxious, angry and untrusting, has trouble sleep and has been diagnosed with focal seizures and at the height of her stress she suffered panic attacks, suffered mood swings and became withdrawn.  She has worried about losing her job because of the physical impacts she has suffered.  Your deception was so great that you made her feel like family, to the extent that she purchased a blanket for your newborn.  Having realised that she was deceived to such a level she feels embarrassed and ashamed of being so trusting.  She thinks about her dad often and about how upset he would be that they were taken advantage of and feels so much guilt for bringing you into their lives.  Especially in relation to her mother who had to go back to work at age 74 because of your actions.  She has lost a caravan valued at $25,000 as well as $3,600 worth of personal savings and her family has never really felt safe after reporting the matter to the police as you lived just two streets away.

84      The victim impact statement of Milka Hutchins was read by her in open court and tendered as Exhibit B.  She had been retired for three months before she had to seek her job back because of your actions, she was sad and embarrassed.  She feels as if she was taken advantage of because of her language barrier and age and cannot believe that somebody could come into her life and destroy the house that she and her husband had worked for.  She is reminded daily of what has occurred when she sees the damage that still remains.  She cries having mistakenly trusting you, has trouble sleeping and her diabetes plays up when she feels stressed.  She felt scared and harassed if she did not hand over the money to you.  All up she has lost $64,000 and the fixing of her house has been paid for in bits when she can afford it, she has had a lot of help from her cousin with this.  She works and does not go out, does not socialise with friends anymore and does not invite anyone to her home.

85      

Dean Hannan also chose to read his victim impact statement to the court which was tendered as Exhibit C.  Mr Hanna has clearly been deeply affected and his life heavily impacted as a result of your offending.  He spent all of his spare time for over a year making his house liveable.  He felt mentally and physically drained and had no time to catch up with friends and family.  He feels like he has been left with emotional scars forever, he has lost the love of his life with he and his wife divorcing in 2017 as the strain to their relationship caused by your actions became all too much.  It left him angry, frustrated and heartbroken as he felt he let his family down by believing and trusting you, handing over thousands of dollars of hard earned money.  His work suffered as he was

pre-occupied with thoughts of despair and devastation.

86      He has suffered sleepless nights, flashbacks, feelings of emptiness and loneliness.  It has had a massive impact on him financially.  He stated that it has ruined him financially and that the $147,000 he gave to you was not even half of what he has had to spend to get the house back to a liveable condition.  He has had to borrow money from the bank and family and his mortgage, following paying his wife out of the house, had gone from $120,000 to $650,000 and the house is still not finished.

87      Exhibit D was the victim impact statement of Ms Sheena Dunn and which was read in person to the court.  She feels like the world has been changed forever.  Her husband and her had put their trust in you and they were under enormous strain and stress and their marriage was put under huge strain.  The thought of losing their hard earned money makes her sick to her stomach and there have been many sleepless nights.  Six years on she still feels sad, angry and regretful.  There was further stress added while she had to wait four years to see whether the partial work that you did would be deemed satisfactory and not hazardous by the Council.  In paying to rectify and complete the work she has had to spend another $42,736.08.

88      Ms Julie-Anne Phillips-Rees’ daughter, Monica Phillips-Rees, also provided and read a victim impact statement to the court.  She felt that she lost her grandmother and mother as they were no longer like themselves.  She reached peak anxiety in October of 2013 and has still not recovered, even though she has regular appointments with a psychologist.  It has been for her six years of regret, trauma and unease.  It has impacted her work and at the time also impacted her schooling in her final year of VCE.  She became more introverted there were feelings of exclusion connected to not being able to financially engage in activities with friends.  She often wonders how safe her family is, especially her grandmother as you know where she lives.

89      Ms Angela Niolaks and Mr Nick Niolakis supplied victim impact statements to the court which was tendered as Exhibits F and G respectively.  Both contain the same central points.  Their lives have been changed for the worst.  They wake up most nights shaken and frightened.  They have a lot of anger and blame towards each other for allowing you to steal from them and have been seeing a counsellor to save their marriage.  The nightmares and the fear remain, they have changed the locks on their doors and windows.  They are still paying off the mortgage for the extension that you never built.  They have had to pay to repair the damage you did, sought legal advice and the ongoing cost of counselling.  The betrayal and theft by you cannot have a price put on what they have been through even years later.

90      The victim impact statement of Rodney Luke was tendered as Exhibit H on the plea and contains the following.  You were persistent that you were paid in full, up front and in cash.  He felt that he could not trust people, questioned everything he was doing in his work, sport and family life.  The embarrassment meant that he did not talk to friends and he did not tell anyone what had happened as he felt that they would judge him and blame him for it.  He felt so alone and his health has suffered and he now takes blood pressure tablets.  The sight of the half finished work reminded him every day of what had happened and how he had failed himself and his family.  The pressure interfered with his work and combined with the feelings that he could not trust himself or the people that he worked with that he changed his job four times in four years.  His trust in people is gone and his own self-belief is struggling and he is struggling financially to get ahead.  He has spent double the amount that you obtained to rectify and finish the works.

91      The victim impact statement of Robyn Luke was tendered as Exhibit J on the plea.  She writes that years later she is still angry, upset and embarrassed this could happen to her family.  Eighteen months prior to this offence she had been diagnosed with a generalised anxiety disorder and placed on medication.  She felt that due to the medication she was not alert or aware of your fraud, she no longer take her medication and just deals with her disorder everyday which is exhausting and she is worried that it is not good for her long term.  Your offending has affected the family financially and she now works full time instead of part time.  As a result it has affected the lives of her children and she is not available to assist her elderly parents day to day.  She is concerned for the safety of her family from you and your associates.  She has had to spend an additional $40,996 to have the work done properly after demolition of the illegal works.

92      Exhibit K on the Plea was the victim impact statement of Ms Xiao Yun Yan.  She writes that she had been affected greatly by this offending.  She was so upset and stressed that she could not eat.  It has been very hard emotionally and she was greatly hurt and she finds it hard to trust people, business and even the government.  The experience put strain on her marriage, she finds it very hard to sleep at night and now takes sleeping pills to help, she has fears of revenge, constant nightmares and she lives with anxiety and is not very happy with life.  She knows she should go and see a doctor but cannot afford it.  Because of your actions she and her husband have had to borrow $120,000 from friends and family to build another house which has added to the stress.  She feels you took advantage of her and thought she was an easy target due to her and she still feels 'broken'.

93      John Talevski provided a statement which was tendered as Exhibit L.  The crime has had a major effect on him and his family.  He is the only working member of the family and had two daughters aged nine and 11 at the time.  They had faith in you and as a result their home was left incomplete and unrepairable which included 2 winter periods.  It caused him ongoing stress, anxiety and at times he had suicidal thoughts as all funds had been depleted and he could see no way out of this situation.  The family lived in an unfinished home with no kitchen, live electrical wires exposed and unsafe plaster boards.  His wife suffered daily mental breakdowns, his young daughters struggled to understand why the home was left in that state and why their mother was constantly crying, depressed and arguing with their father.  His wife now struggles with trusting people and avoids social interaction whenever possible.  The financial impact has been great as the total $61,000 they paid to you was a total loss.  They had to beg family and friends for any assistance and were able to borrow some funds.  Family and friends found it extremely difficult being around them and kept away from them.  Additionally, they were forced to sell an investment property they were partners in and a food truck to raise the necessary funds to rectify and complete the work.

94      Tendered as Exhibit M on the Plea was the statement of Jim Pilakis.  The effect of the offending was immense, he was very angry and frustrated and at the time it was all he could think about.  He could not shower or use the toilet in his own home, nor cook.  It cost him a lot of time and money to get it all repaired.  He was very depressed because of this and did not even want to come into his home, he lost his appetite and could not eat.  He was referred to a psychologist and psychiatrist and was diagnosed with depression and took medication for a time.  Financially he was put in a very difficult situation and had to re-mortgage for the initial loan and then had to pay an additional $64,000 to properly repair the damages.  He has been assisted by his brother and his children otherwise he does not think he would have been able to pay it off.  Socially he was impacted as he went to regularly entertaining people to not inviting anyone as he was embarrassed and disgusted to stay in the house himself and did not want to be there living with his sister for six weeks.  It put a big strain on him and his family but he was able to make it through with their emotional and financial support.

95      The final victim impact statement tendered on the plea, Exhibit N, was made by Niki Vavasis.  She writes that your constant lies, promises, excuses and deceptions have affected her emotionally, mentally and physically.  She was not sleeping properly, constantly arguing with her husband, became angry and short tempered and put extra pressure and stress on her.  A lot of pressure was put on their marriage.  You created a web of lies that made them feel sorry for you.  She also regrets posting and advertising NC Labour on Facebook before the lies and excuses.  She feel like she is to blame for others hiring you and getting conned into losing their money.  The loss of the uncompleted work was $13,000 and the extra cost to date to complete the work is $13,500.

Criminal Record

96      It was submitted by the Prosecution that you have a relevant dishonesty and fraud related convictions for which you have received immediate terms of imprisonment.  It was conceded by your counsel that your record is relevant in the court’s determination of the most appropriate sentence in the circumstances.

97      The Prosecution directed the court to the following previous appearances.  On 17 June 2009 you appeared in the Bendigo Magistrates’ Court on a number of offences, relevantly 3 charges of obtain property by deception and two charges of obtain financial advantage by deception and received an aggregate sentence of 12 months' imprisonment to be served by way on an intensive corrections order.

98      

On 8 February 2011 you appeared in this court on 20 charges of attempting to obtain property by deception and 10 charges of obtain property by deception.  You received a total effective sentence of four years and one months' imprisonment and a non-parole period of two years.  On 24 February 2011 you appeared in the Melbourne Magistrates’ Court on a number of offences, which included four charges of obtain property by deception and received an aggregate sentence of seven months' imprisonment, effectively a sentence of time served.  On 27 June 2011 you again appeared in this court on charges of handle and receiving or disposing of stolen goods and two charges of obtaining  financial advantage by deception and a charge of attempting to obtain financial advantage by deception.  You received two years on the stolen goods offence, 18 months with 15 months concurrent and 12 months with nine months concurrent on the respective charges of obtain financial advantage by deception and nine months with six months concurrent on the attempt to obtain financial advantage by deception charge for a total effective sentence of two years, nine months with two years to be served concurrently with

Judge Lawson’s earlier sentence imposed on 8 February 2011.

99      It was submitted that your prior history is of reduced significant in light of the matter contained in the report of psychologist Ian Mackinnon which will be detailed shortly.

Matters in Mitigation and personal to you

100     You are now 38 years of age and were born in Australia, growing up in the Lalor area.  You have two younger sisters and were raised by your parents who have remained together.  Your childhood was free of any familial abuse or serious conflict and you generally enjoyed good relationships with your sibling and parents.  You believed that your father was strict and that this led you to sometimes rebel and present with challenging behaviour. The only serious misgiving you have in relation to your parents is that they never told you they loved you or expressed feeling towards you.  Your parents are still in the work force with you mother working for the Commonwealth Bank and your father working as an engineer.

101     You attended St Luke’s Primary School, Lalor, and you then attended the Lalor North Secondary College where you left the school in 1998 at Year 9 level.  It is you recollection that you struggled with academic demands but that you had exceptional skills in creative areas such as visual design, anything involving 'hands on tasks' or involving mechanical engineering problems.  Upon leaving school you commenced a double apprenticeship in automatic spray painting and panel beating.

102     You have been married to your former partner, Nicole Cappelli, for some years and have had two children from that relationship, age six and three around the time of the plea.  The relationship has broken down in the last couple of years and you are now separated with Ms Cappelli having taken an intervention order against you in favour of her and the children.  You have not seen your children during your time on remand and neither has your extended family.

103     You have in the past tried using cannabis and speed on a handful of occasions and describe yourself as an occasional consumer of alcohol in moderate quantities.  The only substance abuse you have every engaged in was the use of a hundred dollars of ice in 2018 after being informed that your wife had an extramarital affair.

Psychological Reports

104     

Two psychological reports of Mr Ian McKinnon have been provided to the court.  In his report of 12 September 2019 Mr Mackinnon provides a similar personal history as that outlined above.  He has assessed you on three occasions,

11 November 2018, 1 August 2019 and 31 October 2019.  Much of

Mr Mackinnon’s report is based upon on what you have reported to him which was a contested area of the plea in some respects.  You reported to him that from a young age you suffered from psychological problems that were dismissed by your parents.  You were ultimately diagnosed with attention deficit disorder and were prescribed medication.  Further, that as an adult you had been diagnosed with Bipolar Disorder and, around two years ago, had been diagnosed with Schizophrenia (type unknown).  You reported that you have been suicidal on several occasion and that you had tried to acted on those thoughts sometime in 2018 where you attempted to commit suicide by carbon monoxide poisoning, luckily being discovered by your former partner who called the CATT team.  You reported that you had commenced depot injections at the Northern Hospital three days before you were remanded.

105     As to your physical health you reported that you feel and suffered serious spinal injuries while working on a scaffold sometime in mid-2018, that whilst in prison you have been cut off from your medication and now suffer from bad incontinence as a result of your back injury.  You have apparently refused to receive methadone as a pain management option and only receive Panadol.  In relation to this incident relating to your back, you have retained solicitors who are in the early stages of potentially pursuing a public liability law suit.

106     As to your time in prison you have reported that 'They’re good on mental health here at Ravenhall', though that you had tried to hurt yourself a couple of times.  You have received visits from your parents and you state:

'They’re supportive.  They want me to live with them when I get out.  They visit every week…Dad’s got a handy man business so I might help him a bit, do what I can with my stuffed back.'

Mr Mackinnon opines that if you remain in prison for a further period that you appear likely to receive adequate treatment for your mental health while remaining at Ravenhall but on your account you are unlikely to receive appropriate treatment for your spinal injuries.  That you have made significant mental health rehabilitative progress while on remand and this general progress may well continue.

107     As to a diagnosis he opinions that at the time of assessment you appeared to be suffering with symptoms that met the clinical criteria for a psychotic disorder (type unspecified).  In his opinion you are suffering with a long standing psychotic disorder that may well be schizophrenia, but that it appears to have been significantly improved since you were first assessed in November 2018.  Since that time you appear to have largely overcome a long standing Mixed Anxiety and Depression Disorder, however still suffer with mild anxiety depression, chronic pain and discomfort.  Further he opines that:

'Mr Cappelli  does not possess an entirely antisocial or criminal disposition.  Whilst Mr Cappelli has demonstrated some antisocial traits in the past, much of his offending appears to have been (at least partially) a consequence of his serious mental health issues and the general confusion, paranoia, instability and irrationality inherent to his psychotic condition'.

108     As to your mental health at the time of this offending he opines that you were probably suffering with symptoms that met the clinical criteria for a psychotic disorder (type unspecified) and a mixed anxiety and depression disorder.  He believed that this made a significant contribution to your offending by significantly degrading your ability to reason and make sound judgment, it distorted your perception and cognition, it degraded your cognitive abilities, elevated your impulsivity, fuelling angry and irrational outbursts, weakening your power of consequential thinking, engendering a self-absorbed perspective that lacked any empathy and moral content and diminished your awareness of your normal adult and community responsibilities.

109     As to your prospects he states that you appear genuinely remorseful, that you have significant family support, improved your prospects for maintaining yourself appropriately once released and have reasonable prospects for continuing to make rehabilitative progress.

110     

Mr Mackinnon was called to give evidence on the further plea relating to the application of the Verdins principles in this matter.  The prosecution

cross-examined him as to some of the matters that you had reported to him by way of history during your assessment and in particular that you won apprentice of the year twice, whether you had in fact been diagnosed with schizophrenia and your account of your grandfather’s suicide and your arrival soon after.  Upon being presented that you had provided false information in the course of the assessment he stated that he was not surprised that if the history was not true, as you were a man with a history of mental illness with criminal and

anti-social activity.  In this context he could not be surprised if you exaggerated or attempted to put forward a better picture of yourself than is actually the case.

111     Briefly the evidence that he gave under cross-examination is as follows.  That there was no evidence that during your interactions with the complainants that you were psychotic or delusional based on the materials he was provided with for your assessment.  His diagnosis was in part based on your own reporting and the fact that the treaters at Ravenhall had been treating you for a period of time, on an ongoing basis and you had been on anti-psychotics, these matters being given some weight.  However, there was not much else there to confirm it to him.

112     The Prosecution also canvassed your expressions of remorse to him.  That nothing you had said had indicated that you felt sorry for what you did or the impact that your offending had caused your victims.  Mr Mackinnon agreed with the proposition and added, you had in fact disputed details of the charges and felt as if you had been manipulated at the time by your brother in law and former wife.  This last point also going to the fact that you are not fully accepting of responsibility for your own actions.  However, in his report and referenced in his evidence was this statement made by you at assessment:

'I’m finally addressing my mental health.  I don’t have voices in my head anymore…It’s been hard but I’ve learnt a lot.  I got onto depot injections last year.  I decided I’ll own what I’ve done wrong.  I’m happy to plead guilty if I can tell my story… I’ve been addressing my issues, I’m being honest with myself and this has been the hardest thing in my life.  But I’m a better version of myself, everyone will benefit'.

113     The lies that you told the complainants were conscious lies despite whatever condition you were suffering.  Additionally, he agreed that stating that your business was a builder and your activities over that period indicted deliberate planning to deceive your victims.  The prosecutor when querying the totality of your actions being, lies over a number of months about permits, obtaining materials and appliances, et cetera, and the various types of lies that you told and the connection with any mental impairment.  Mr Mackinnon replied that you do seem to be a habitual liar, that he had opined that there was 'probably' a connection in his report as it was a retrospective assessment with limited information available in terms of records at hand and medical records.

114     Your counsel in re-examination adduced evidence that he had observed a significant improvement in your mental health, you were much more lucid and did not appear to be significantly anxious or depressed.  Asked to work back from these circumstances he stated, that he was able to a bit but that it tended to confirm that you were treated quite well by the staff at Ravenhall and that you had been suffering with a psychotic condition in the past.

Sentencing Principles

115     In sentencing you, I must have regard to a range of different factors.  I must give effects to the principles of deterrence, both general and specific.  I must deter other people from behaving like you.  I must deter you from repeating such behaviour and impose a just punishment in all the circumstances.  I must express the community's denunciation of your conduct and promote your rehabilitation.  I must also have regard to current sentencing practices for offences of this kind that you have committed and I must balance your personal circumstances.

Plea of Guilty and Remorse

116     The Prosecution supplied a chronology to the court.  There was a filing hearing on 29 February 2016 for these charges with a contested committal being held on 19 to 22 June 2017 where all of the complainants and the informant were called to give evidence. The matter finally resolved by way of plea offer that was made to the prosecution on 28 June 2019, which was accepted and you were arraigned on 3 July 2019, five days prior to the commencement of trial.

117     It was clear from the line of question of Mr Mackinnon on the subject of remorse that the prosecution were seeking to distinguish that any remorse that you have expressed is for your own circumstances and not out of any sense of empathy, regret or shame that you may feel towards your victims.  Defence counsel submitted that matters of insight and remorse were highly relevant in this instance and of higher significance than in other matters.  In contrast there is evidence of insight and remorse contained in Mr Mackinnon’s report, specifically your statement of wanting to own what you have done, and through your plea of guilty its which was submitted to be of high utility.

118     It is not an early plea but I take the timing of your plea into account and you will, of course, also receive credit for its objective utilitarian benefit, through the saving of time and resources associated with the running of a trial, and I do recognise a level of remorse and insight with respect to this offending and your subjective willingness to facilitate the course of justice.

Prospects of rehabilitation

119     As to your prospects of rehabilitation it was submitted by your counsel that you now have insight into your condition and having received treatment while in Ravenhall you now know that your life does not have to be the way that it has been and can be different.  You have made a significant improvement in your mental health, though that is with the caveat that it is unknown what will happen when you are no longer at Ravenhall and supervised, treated and medicated by its staff.  Further, you have now acknowledged that your marriage is over and that this is probably a positive for both you and your former wife.  As stated above, Mr Mackinnon in his report believes that you have made significant mental health rehabilitation and have reasonable prospects.

Totality

120     It was submitted that there was also the principle of totality for the court to consider as you were only out of custody for a few days before you were remanded on these matters, having undergone a sentence of imprisonment for another matter.  Further, that there may also be the potential issue of you having been sentenced in relation to offences currently before the Magistrates’ Court.  On that basis it was sought by your counsel that the court include the prior sentence of 98 days' imprisonment from the Heidelberg Magistrates’ Court.  It was the submission of the prosecution that the court not take that sentence into account as you were on bail in relation to these offences at the time.  While this is not strictly an issue of totality, the court is mindful of the principle and the issue of institutionalisation.

Verdins

121     Your counsel submitted that the principles of Verdins had been enlivened in this matter.  It was submitted the court should consider that you were unwell during the time of the offending and your moral culpability should therefore be reduced, but submitted that it was a bit of stretch as acknowledged by Mr Mackinnon in his evidence.  It was further submitted that it is not uncommon for people with mental health conditions to go for years without a proper diagnosis and treatment.  Further, that general deterrence ought to be moderated as you are not an ideal model to deter others under limb three.  A similar argument was made in respect of limb four and specific deterrence being moderated as you have now been well treated in terms of your mental health, you have become aware of the need for adequate treatment, the impact of prison upon you and being estranged from your children.

122     The Prosecution submitted that for the principles espoused in Verdins to be applicable there must be evidence of some realistic connection between the psychological condition and the offending.  The prosecutor had put squarely to Mr Mackinnon that the deception had occurred over a long period of time in respect of a number of home owners, there were different aspects to your lies and deceptions both oral and in writing. That while it was a matter for the court to determine if there was the presence of the required nexus between the offending and any mental impairment that it had been conceded by your counsel that it was somewhat of a stretch to say the psychological condition had impacted to a greater extent with respect to the extent of your conduct at the time of the offending.  Reiterating that it was however difficult to determine, as conceded by Mr Mackinnon, as the assessment is to be made some years later and it is difficult to assess the impact of any mental impairment on your continuous conduct over a long period of time.

123     I am particularly mindful of the extent of the deviousness that you employed, with respect to the 11 charges and in particular your offending commencing - in particular your re-offending, which commenced in February 2013, when you had been granted parole by a judge of this court from September 2012.

124     That being said, the court does recognise your current and previous diagnoses in relation to your mental health and that they may therefore be sufficient evidence to establish the requisite nexus to enliven the Verdins principles.  Further, your mental health as it stands and the steps you have taken to accept treatment and recognising the need to address your mental health will be taken into consideration as part of your own personal circumstances and antecedents in the court’s instinctive synthesis.  However, when taking into account these Verdins principles I have also got to be mindful of balancing community protection with any such mental impairment from which you were suffering at the time.

125     In Veen (No.2) (1988) 164 CLR 465 Mason CJ and Brendan, Dawson and Toohey JJ noted at 476-477 that whilst an offender's mental impairment may reduce his culpability for an offence it may also make him a danger to society. In such circumstances, community protection becomes an important sentencing consideration. The court stated,

'A mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects:  one which tends towards a longer custodial sentence, the other towards a shorter.  These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality'.

126     This passage indicates that although the need for community protection can lead to an increase in an offender's sentence the court may not impose a disproportionately long sentence.  The penalty imposed must not be more severe than that which would have been imposed had the offender experienced no mental abnormality (see Muldrock (2011) 244 CLR 120 at paragraph 61 and Wright [2015] VSCA 333 at paragraph 6.)

127     Although the mitigatory impact of an offender's mental impairment must be considered at sentencing when the evidence supports applying one of the Verdins principles, in some cases the need for community protection may outweigh the degree of mitigation that would ordinarily be accorded to that impairment.

128     For example, in Wright [2015] VSCA 333, features of an offender's mental impairment both justified a reduction in moral culpability and suggested a greater risk of similar offending in the future. The latter matter elevated the significance of community protection.

129     As stated above, I am particularly mindful that you have a long history of deception and having received a shorter parole period, ending in September 2012 from this court, you again recommenced offending in a devious way, as already outlined, commencing in February 2013.

130     In any event, I have tried to balance these competing considerations with respect to my instinctive synthesis.

Physical injury and Hardship in prison

131     It was submitted by your counsel that perhaps your strongest argument in relation to what the ultimate sentence imposed by the court is, is your back injury.  It was submitted to be severe and has not been dealt with in any real way whilst in gaol and that it will not be on your reporting until your release from prison.  This being submitted by your counsel as an important consideration in the determination of the court’s sentence and the calculation of an appropriate non-parole period.  I accept that submission.

Specific Deterrence

132     Your counsel submitted that the court should view the need for specific deterrence as having been diminished and ameliorated to some extent.  The basis of the submission being a combination of the above reference improvement of your mental health, the period of time between your offending and this matter being finalised and you having served two sentences of imprisonment since this offending and the deterrent effect that has had.  While some weight has been given to these matters you remain an offender with a prior and extensive history of committing this type of offending and behaviour.  As such there does remain a need for specific deterrent in the sentence which is imposed.

General Deterrence, Denunciation and Community Protection

133     This is a serious, prolonged and devastating offending for those whom you defrauded.  You were a Trojan horse for them, welcomed and trusted they brought you into their homes and lives, only for you to become a source of destruction and turmoil.  You preyed upon them.  You could only have been aware of how important these works on their homes were to them and what it meant to them and their families.  For all of your victims it seems that what appeared to be a dream come true soon became a living nightmare without reprieve or escape.

134     You were specifically told and aware of some of the lengths and means that they secured the hard earned money to fund these renovation and the vulnerabilities of some of your victims.  But never did your conscious stop you from taking their money, whether from a single mother, a retiree, a sole bread winner or a good samaritan who offered assistance on the side of a road.  Without explanation or apology you disappeared into the ether having taken them for all you could, leaving your victims angry, distraught, heartbroken and without hope.

135     Still your callousness was beyond the pale telling two home owners that you had discovered Asbestos in an attempt to induce them to give you more of their money.  No doubt they were fearful of the health implications.  The common theme throughout the victim impact statements seems to be that it was not just their homes you left in ruins but their lives and relationships.

136     The court must impose a sentence which will deter others from committing offences of this kind and must denounce your offending and conduct in strong terms.  The community expects and home owners deserve to be protected from this predatory behaviour.

Continuing Criminal Enterprise, Disposition and Current Sentencing Practices

137 It was submitted by the prosecution that you fall to be sentence as a Continuing Criminal Enterprise Offender in respect to Charge 6 pursuant to Part 2B of the Sentencing Act because of your prior convictions in 2011.  On that basis the maximum penalty of that offence is 20 years’ imprisonment pursuant to s.6L of the Act.

138     The Prosecution submitted that the appropriate sentence in respect of this offending was an immediate term of imprisonment.  This being conceded by your counsel as behaviour that should attract a custodial sentence, more so given that you have a relevant prior history.

139     The Crown supplied the court with what were submitted to be comparative sentence cases and also provided a brief document containing case summaries following the further plea, these cases being:  Taylor v The Queen [2019] VSCA 162, Friel v The Queen [2018] VSCA 48, Dawn-Manuel v The Queen [2015] VSCA 212, Lomaccchio v The Queen [2015] VSCA 195, Gianello v The Queen [2015] VSCA 205, Akkala v The Queen [2012] VSCA 29 and the two sentences of Judge Lawson of 8 February 2011 and 27 June 2011 in respect of your previous offending.

140     These cases do serve as some reference to the objective gravity and seriousness of your offending, and that whilst the court has taken the cases provided into account in determining the appropriate sentence and has been informed by them, I am not bound by them in exercising my sentencing discretion and view current sentencing practices as only one of the factors I must consider as provided in the case of DPP v Dalgliesh [2017] HCA 41.

141     Having considered all of the materials tendered on the plea, and the above cases, the court must, in all the circumstances, impose a just sentence as part of its instinctive synthesis.

THE SENTENCE

142     Mr Cappelli, would you please stand.

143     

I propose to impose a gaol sentence of six years and six months with a

non-parole period of four years and three months.

144     You will be convicted on each of the 11 charges and sentence to the terms of imprisonment at follows:

145     

On Charge 1 – 12 months' imprisonment, on Charge 2 - 15 months, on

Charge 3 - 24 months' imprisonment, on Charge 4 - 18 months’ imprisonment, on Charge 5 - 18 months’ imprisonment , on Charge 6 - 36 months’ imprisonment and this is the base sentence, on Charge 7 - 24 months’ imprisonment, on Charge 8 - 18 months’ imprisonment, on Charge 9 - 12 months’ imprisonment, on Charge 10 – 12 months’ imprisonment and on Charge 11 – 12 months’ imprisonment.

146     I make the following order as to cumulation:  on Charge 1 - 3 months’ imprisonment to be served cumulatively on Charge 6, Charge 2 -  3 months’ imprisonment to be served cumulatively on Charge 6, Charge 3 -  9 months’ imprisonment to be served cumulatively on Charge 6 - sorry.  I will just start that again.

147     

I make the following order as to cumulation:  on Charge 1 - 3 months’ imprisonment to be served cumulatively on Charge 6, Charge 2 - 3 months’ imprisonment to be served cumulatively on Charge 6, Charge 3 - 9 months’ imprisonment to be served cumulatively on Charge 6, Charge 4 - 4 months’ imprisonment to be served cumulatively on Charge 6, Charge 5 – 4 months’ imprisonment to be served cumulatively on Charge 6, Charge 7 – 6 months’ imprisonment to be served cumulatively on Charge 6, Charge 8 – 4 months’ imprisonment to be served cumulatively on Charge 6, Charge 9 – 3 months’ imprisonment to be served cumulatively on Charge 6, Charge 10 – 3 months’ imprisonment to be served cumulatively on Charge 6 and Charge 11 –

3 months’ imprisonment to be served cumulatively on Charge 6.

148     This makes a total effective sentence of six years and six months, and I direct that you serve a non-parole period of four years and three months before being eligible for parole which I believe is appropriate in all of the circumstances.

149     I believe it is 302 days, gentlemen, not including today; is that correct?

150     MR HARDJADIBRATA:  That's correct, Your Honour.

151     

I declare that 302 days not including today, have already been served as a

pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty, I would have imposed a total effective sentence of 10 years’ and three months’ imprisonment.

152 By virtue of your conviction on Charge 6 I declare that you have been sentenced as a Continuing Criminal Enterprise Offender and that this be noted in the record of the court pursuant to s.6J of the Sentencing Act.

153     The Prosecution have also made application for forfeiture and disposal orders and I believe that this is not opposed and I propose to make the order sought as to the items set out in the schedules.

154     Is there anything further counsel?

155 MR HARDJADIBRATA: I think there's the s.6AAA discount, Your Honour.

156     HIS HONOUR:  I've mentioned that.

157     MR HARDJADIBRATA:  You have?

158     HIS HONOUR:  Yes.

159     MR HARDJADIBRATA:  I beg your pardon, Your Honour.

160 HIS HONOUR: I have already said, pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have imposed a total effective sentence of 10 years and three months' imprisonment.  I hope I said that.

161     MR HARDJADIBRATA:  Thank you, Your Honour.

162     HIS HONOUR:  If I did not, I now say it.  I did say it, thank you.  Anything further, counsel?

163     MR LAVERY:  No, Your Honour.

164     MR HARDJADIBRATA:  No, Your Honour.

165     HIS HONOUR:  All right, can you please adjourn the court to 9.30, you may remove the prisoner, thank you.

166     Adjourn the court to 9.30 Monday please.

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