Director of Public Prosecutions v De Santis

[2018] VCC 1481

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00724

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALDO DE SANTIS

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2018
DATE OF SENTENCE:	12 September 2018
CASE MAY BE CITED AS:	DPP v De Santis
MEDIUM NEUTRAL CITATION:	[2018] VCC 1481

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; make false record; obtain by deception; dealing in classic Torana vehicles; aged offences; discovery through offender’s co-operation with police; delay; otherwise good character.

Legislation Cited:  Sentencing Act 1991 s.8;
Cases Cited:

Sentence:CCO for 12 months without conviction; 80 hours unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso (Plea) Mr A. Lew (Sentence)	OPP
For the Accused	Mr P. Dunn QC (Plea) Ms D. Giannopoulos (Sentence)	Doogue & George Pty Ltd

HER HONOUR: 

1Aldo De Santis, you have pleaded guilty to one charge of making a false record, namely a vehicle chassis number; and one charge of obtaining property by deception. 

2The maximum penalty for each of these offences is ten years' imprisonment which reflects their potential seriousness.  However, in the circumstances of this case, you will not be receiving a sentence of imprisonment. 

3The two offences arose out of completely separate events which occurred a considerable number of years ago. Both have the common background of arising out of your dealings in relation to classic Holden Torana vehicles which have apparently been a passion of yours since your teenage years.  Amongst collectors of these vehicles, you were known to have decades of experience and to be an expert.

4To put these offences into context, some of these vehicles can be extremely valuable, and the nature of dealings in them means that purchasers rely on the trustworthiness of the person from whom they are purchasing or whose opinion on a vehicle they seek. Although these cars have generally had a great deal of work done on them by way of repair and restoration, to be of greatest value, they must have a genuine original body shell which will include the original chassis number.  VicRoads requires there to be a genuine chassis number and engine number in order to register such a vehicle.

5The first charge arises out of a sale in February 2009 of a 1973 Holden Torana.  That vehicle did not have a chassis number stamped on its shell, and was not registered.  You told the buyer that the vehicle had been damaged in an accident, but that you could arrange to have the chassis number restamped to the vehicle.  The buyer agreed to this, and returned the car for you to do this after the purchase.  There was no deception involved between you and this buyer. However, you then stamped the shell of the vehicle with a chassis number which did not belong to it, and posted to the buyer three identification tags that matched that chassis number. The offence of making a false record is constituted by the stamping of the chassis number into the shell which was not the original chassis number for that shell, even though there was no intended deception of either the buyer or of VicRoads. 

6The second charge arises out of events in 2012.  In February that year,
Mr David Hein approached you to discuss the purchase of a Torana GTR XU1.  These, I am told, have particular value as they were only produced for a limited number of years, and there are further subcategories due to very limited numbers having been produced in the last two years of production.  Greater value attaches to those having a genuine original body shell. 

7Mr Hein approached you.  He trusted you because of your reputation as being an expert in the Torana community.  I gather that he wanted to purchase such a vehicle as an investment.  He entered negotiations which apparently extended over many months, to purchase a vehicle which you had owned for many years.  In August 2012, that sale was completed and Mr Hein paid you $85,000 for the vehicle. 

8There were two receipts produced but I infer nothing adverse from that.  The first receipt recorded that the sum of $85,000 had been received from Mr David Hein as payment in full for a “1973 GTR XU1 Torana”, and specified the chassis number and engine number and VIN number.  It was described as:

“[B]eing sold in ‘as is’ including unregistered and unroadworthy condition.  The motor car is an ex rally/race car and has endured many repairs over the life of the car that may have included partial or complete body shell, mechanical and cosmetic repair or replacement.  The car is sold with all faults, if any, and the sale is unconditional and without warranty, roadworthy or registration." 

Mr Hein signed that he had agreed to those terms of the sale. 

9There was a deception involved in this transaction because Mr Hein understood this to be a genuine restored car of this type which had its original body shell, chassis number, engine and identity tags, even though he knew that it had been repaired and restored over the years.  He also believed that he was purchasing a vehicle which had a racing provenance, making it more valuable, and you had produced newspaper articles and other information about that.  Mr Hein relied on your reputation and belief that the vehicle was genuine. The car had in fact been “re-shelled” in that the chassis number had been cut out of the original car and placed into this shell. 

10In relation to stating that it had a racing heritage, you had had contact with the family who had originally raced the vehicle with the purported chassis number.  They inspected the vehicle in your keeping, and as it had the ID tags and numbers from their vehicle, they assumed that it was. They did not check the chassis number.  The racing documents and newspaper articles about that family's racing of the car as a rally car had influenced Mr Hein's decision to purchase it.

11The prosecution case is that you committed the offence with the mental state of recklessness as to the deception.  It is not alleged that you intentionally misled or deceived Mr Hein into believing that it was a genuine restored vehicle, rather than a restored and re-shelled vehicle. 

12On investigation, it was established that the chassis number had been tampered with. The chassis number had been cut out of the original vehicle and placed into the body shell of this one.  That meant that the vehicle was worth considerably less than what was paid - an amount now agreed as being a difference of $35,000.  The vehicle still had value and indeed, Mr Hein had chosen to keep it rather than allow you to buy it back from him even at a profit to him.

13When interviewed by police about this matter, you gave some inconsistent answers as to whether you were aware it had been re-shelled at the time of the sale to Mr Hein.  It is now accepted that you were aware of that, but as I say, by being reckless as to whether Mr Hein would be deceived by what you did or did not tell him. 

14I have read a Victim Impact Statement from Mr Hein, who outlines that he relied on your reputation, and used some of his and his family's retirement savings to fund the purchase of this car because it would have been a good investment.  He describes being impacted financially, and also by the stress and disappointment of finding that he had been taken in by someone he believed to be a pillar of the Torana community.  He also describes losing face with friends who found out. 

15You have agreed to pay compensation to Mr Hein in respect of the difference between the amount he paid and the current value - a difference of $35,000.  He says he was defrauded of over $100,000 in current values, but that seems to be based upon what he estimates the car if genuinely what he was led to believe would have now been worth.  However, if you had not deceived him, he would presumably not have bought the vehicle at all, so he has not lost the current value of a car that you could not have sold him.  Indeed, as already mentioned, you offered to buy it from him at a profit to him but he has refused to resell it to you.

16I must assess both the objective seriousness and your subjective blameworthiness in relation to each of these offences.  The maximum penalty on each of 10 years imprisonment reflects objectively the potential seriousness of offences of this type. 

17The system of embedding chassis numbers is basic to the registration of vehicles in this State, and is also an issue going to the value as collectors’ items of these specialist vehicles.  Conduct such as yours can undermine the registration system, and has the potential to distort values and deceive people into paying substantially more than they ought for such cars.  It is therefore important that a sentence convey general deterrence to try to prevent others from engaging in similar conduct. 

18Assessing your subjective blameworthiness in this case, I accept that your conduct under the first charge did not in fact deceive anyone and was not intended to do so, and it was not intended that the vehicle be registered.  Further, the manner in which this offence came to light also has relevance to how I assess your culpability for it.  Police were investigating another person who is yet to stand trial, and came to you for your records as they were widely known to be very comprehensive.  You cooperated by providing your records to the police.  The records showed, incidentally, photos you took of your restamping of the chassis of the vehicle sold in 2009.  It seems to me unlikely that that offending would ever have come to light but for your fulsome cooperation with police in handing over all of your records, as it is clear that the purchaser of that vehicle never complained about what he had agreed to.  I assess your offending under charge 1 as at a low end of the spectrum for possible instances of the offence of making a false document. 

19In relation to the second offence, again, the maximum penalty reflects objectively the potential seriousness, and the nature of the offending again had the potential to undermine the registration system as well as the values of genuine vehicles being traded amongst collectors.  In this instance, there was actual deception of the purchaser although conceded to be through your recklessness rather than intention.  As you are part of the “Torana community”, you must have known that trading in these vehicles relied on the truthfulness of representations about the cars, and when you took the grave risk of selling the mustard-coloured Torana to Mr Hein without making clear that it had been re-shelled, you were taking a serious risk.  I also take into account that the price paid to you in 2012 was more than the now current value of such a vehicle.  I infer that the intention was for Mr Hein to believe it a genuine, although heavily restored, vehicle.  Nevertheless, the vehicle was not worthless, and Mr Hein has chosen to keep it rather then resell it to you at a profit to him.  The difference in value, while substantial, was still within a relatively low range money-wise for offences of obtaining by deception.  I regard this offence as more serious than that under Charge 1, because of the deception, but I assess it as still relatively low on the spectrum for offences of obtaining property by deception. 

20In respect of both charges, you have pleaded guilty and are entitled to significant leniency for doing so.  I have already mentioned that it was your cooperation in providing all of your records to police for a different purpose that led to the discovery of at least the conduct that gives rise to Charge 1.  You prevaricated a little during your interview with police about your knowledge of the matters that were deceptive in the sale to Mr Hein.  However, by your pleas of guilty, you have accepted responsibility for the offending, and are entitled to some leniency for that as well as for the utilitarian value of saving the time and cost of a disputed trial.  Further, I accept that your pleas of guilty in this case reflect genuine remorse.  I shall tell you after I have imposed sentence what the sentence would have been had you not pleaded guilty but been found guilty of these charges after a disputed trial.

21I turn now to your personal circumstances. 

22You are now aged 61.  You were born in Melbourne, the youngest of your parents' eight children, and after they had migrated from Italy to Australia.  Your counsel told me at some length, not all of which I shall repeat, of your upbringing.  I accept that your parents worked hard to establish their family's new life in Australia, that older sisters looked after you while your parents were at work, and that from a young age, you were working part-time to assist the family's income.  At age 10, while doing a paper round, you were hit by a truck and suffered serious injury.  As a result, there was a compensation payment made and held on trust until you came of age and used it as the deposit on your first home.  At age 14, you began working for an uncle on weekends, making wrought iron gates and fences. 

23You left school during Year 12 and did a carpet laying apprenticeship. You proceeded to work at carpet laying for a number of years.  While quite young, you first married, moved into the house you were purchasing, and at about the same time set up your own carpet laying business as well as working at night as a truck driver.  You have two children by your first marriage but that relationship ended almost 40 years ago. 

24I have been given a chronology of your life then and since and shall not repeat it all.  I understand that from the initial experience of purchasing a house, you continued to invest in property on much of which you would develop units as an owner-builder.  You also acquired a security licence and moved into the field of protecting government officials here and overseas.

25In 1997, you met the lady who is your current wife.  She had two young children at the time, and they have lived with you and been raised as part of your family, and you have cared for them as if you were their father. 

26I am told that since your late teens you have had a passion for Torana vehicles.  You have bought and restored vehicles over the years.  You had become well-known as an expert in relation to them.  I am told that in 2000, you met a
Mr Martin Cumberlidge and it is your connection with him that prompted police to ask to inspect your records about the vehicles you have bought, restored and sold.  Looking at those records led to the discovery, as I have said, of at least the offence under Charge 1. 

27You have made an extensive statement to police about your knowledge of
Mr Cumberlidge's conduct in relation to trade in these vehicles.  Some of that is the subject of charges on which he is yet to stand trial.  You gave an undertaking on oath before me to give evidence in accordance with that statement if called upon by the prosecution to do so.  That cooperation with the justice system is recognised under principles of sentencing as entitling you to some significant leniency in your sentence, even though you had agreed to plead guilty to these charges irrespective of giving that undertaking. Were you to be sentenced to imprisonment, the fact that you are cooperating with authorities and prepared to give evidence against another person could well place you at some risk of harm within any prison population.  Even though I am not intending to impose a sentence requiring any immediate imprisonment, you are entitled to the benefit of considerable moderation of your sentence for placing yourself in that position of potential jeopardy as well as for your cooperation with the justice process. 

28In 2009, you began employment with Rokon Pty Ltd as a project manager, and remained with that company until December 2014 when the matters that bring you before me became public after police were filmed executing a warrant at your home.  Apparently, the shock and humiliation to you of these charges and the publicity that followed generally, and in particular in the Torana community, had serious impact on you emotionally and psychologically.  I am told that you have become depressed and anxious as a result, have not worked since December 2014, and your wife gave evidence of what I took to be deeply genuine concern for you and the impact this has had on you as a person.  She also spoke of the many efforts made within the family to restore your interest in the activities you used to enjoy. 

29I have read references indicating that you were completely trusted and well-regarded in your previous project management work for Rokon Pty Ltd, have declined offers to return to such work, but that they remain open for you when this case is over if you choose to accept them.  One of those references, from Mr Sekman, also describes a family friendship, he having left his daughter staying with you when needed and he described your qualities both as a person, a friend and in your work.

30I have also read a letter from your daughter who describes you as a quiet, gentle and generous man who has a passion for social justice, and that you have been involved in voluntary work for community groups and service providers with which she has been associated as a community engagement officer and Councillor.  She describes your care for her as a young child despite you and her mother being divorced; and her pride in the person you are.  Clearly, your support for her has continued all of her life, and she describes occasions where your emotional support has been appreciated.  She also describes you going out of your way to support other extended family members when they have been through difficult times. I accept from her letter, and from the other references, and from your wife's oral evidence, that you have shown care and support to family, friends and others for many decades, as well as to the wider community where you can assist.

31In light of these references, and notwithstanding that the prosecution saw fit to file a notice of prior criminal history which shows no offending for the last 42 years, I am prepared to find that you are a person of good character and are entitled to the full benefit of that in my sentencing of you.  I might add that of the two prior court appearances in the prosecution's notice, the first in time would not be permitted to be included at all on present standards because it occurred when you were no more than 17 and would now be dealt with in the Children's Court and expunged after 10 years.  The second matter, although a theft, which has some relevance to the nature of the current offending, also occurred while you were still a teenager.  I am satisfied that the two offences with which I am dealing here were properly to be regarded as out of character for you. 

32I also take into account that there has been impact on you from these offences coming to light which has been punishment outside the punishment I am to impose or what a court could impose.  It is what lawyers call “extra-curial punishment”.  That is because there was media coverage of police attending at your house and the reason, and that very severely impacted your reputation in the Torana community.  Your wife says that the telephone simply stopped ringing and she saw how upset and demoralised that made you because you had so enjoyed receiving calls and discussing Torana cars with others as well as giving your advice on them.  And obviously, you had enjoyed your good reputation within the Torana community.  It was obviously a source of great pleasure to you and the damage to your reputation in that regard has been an extra punishment for you as well as disconnecting you from many people.

33I am satisfied that there is minimal risk that you will commit any further offence whether of this or any other type.  I am satisfied that you have felt your disgrace deeply and feel genuine remorse for your conduct that gives rise to both of these offences.  I am satisfied that apart from these matters, you have led a responsible life, giving generously to others, and strong support to your family; and that you are loved and admired by your family, former work colleagues and people who know you personally.

34I take into account that you have agreed to pay Mr Hein the sum of $35,000 in compensation for the difference between the price he paid for the car and its current value. 

35Finally, I take into account that there was considerable delay between these matters first coming to light which was in late 2014, and charges first being laid almost two years after that.  I accept that once charged, discussions were commenced, and although a contested committal date was set, you entered pleas of guilty to these two charges before witnesses were called.  I take into account in some further moderation of your sentence that you have had the stress and uncertainty of these charges hanging over you for almost four years since police first executed a warrant at your home. As I have said, the impact of that uncertainty has been particularly stressful for you, causing you to cease work, withdraw from past activities, and to be the subject of some concern of your family.  Further, there has been no further offending of any type in the meantime.  That is consistent with the conclusion I have already mentioned that there is minimal risk of you ever committing any type of further offending and that your prospects of rehabilitation are very good. 

36As already stated, I regard general deterrence as the most important sentencing factor in this case.  The other sentencing factors on which I put some weight is that there be just punishment, and also denunciation of conduct of this type.  I regard your prospects of rehabilitation as very good, and do not consider that there is any need for specific deterrence in the framing of your sentence.  Just punishment, as I have said, is required but in all the circumstances of this case, in my view, each of these sentencing factors can be achieved with a sentence less severe than one of imprisonment. 

37Taking these matters into account together with your pleas of guilty, genuine remorse, the impact of the disgrace that the disclosure of these matters has brought on you, and also taking into your account cooperation with prosecutorial authorities through your agreement to give evidence against another person, I consider that all sentencing purposes can be achieved by the imposition of a Community Corrections Order. 

38I have also considered whether or not to record convictions on either or both of these charges. Under section 8 of the Sentencing Act, I have taken into account the nature of the offences which as I have said I regard as low in relation to
Charge 1 and relatively low in relation to Charge 2, the manner in which they came to light and the fact that you have shown yourself for many decades to be of good character.  Even though there is no evidence as to the impact of the recording of a conviction on your economic well-being or employment prospects, I consider that the evidence from your wife and daughter indicates that the shame of these matters has impacted heavily on your social well-being.  I have nothing to show whether the recording of a conviction would take that any further; however, taking all of these matters into account, I have decided not to record a conviction on either charge.

39As I have said, there will be punishment by way of a Community Correction Order.  I did not have you assessed for suitability for a Community Correction Order as I see no need for any therapeutic or rehabilitative conditions.  I intend to impose a sole condition on that order that you perform unpaid community work as your penalty and, of course, the CCO hangs over you until that work is completed. 

40Would you stand up now please?

41Aldo De Santis, on each of these charges, a finding of guilty will be recorded but no conviction.  On Charges 1 and 2, I impose a single Community Correction Order to last for 12 months, and with the sole condition that you perform 80 hours of unpaid community work. 

42In addition to that condition, all normal terms of a Community Corrections Order apply and these are as follows.  First, you must within two working days of today report to the nearest community corrections office to where you live.  I gather that will be Coolaroo Community Correction Service and the address will be on the copy of the order that you are given.  You must report there by 4 pm this Thursday. 

43You must, during the duration of the Community Corrections Order, keep community corrections officers advised of where you are living and any address where you are working.  If you change any of those addresses, you must advise them of the change of address within two clear working days of that occurring. You must obey all lawful directions of community corrections officers.  You must not leave the State of Victoria without first obtaining permission from your community corrections office.  And most importantly, you must not commit any further offence which could be punished by imprisonment during the duration of the community corrections order.

44I must explain to you that if you breach this order, either by not complying with the conditions or terms or by committing any further offence, community corrections officers may bring proceedings back before me.  Contravention of a Community Correction Order by non-compliance or by further offending is itself a criminal offence and could attract punishment of up to three months' imprisonment.  If you were to be found guilty of a breach of the order, it would be open to the court, likely to be coming before me, to cancel the CCO and resentence you for the two charges on which it is imposed.  Whether that occurs depends on the circumstances in which the contravention arises, how much of the CCO has been completed, and it is in the discretion of the court at that stage. 

45Mr De Santis, as I have explained already, I am confident that you will comply with the CCO and will not breach it but I must ask you whether you understand the terms and conditions?

46OFFENDER:  Yes.

47HER HONOUR:  Do you agree to comply with the CCO?

48OFFENDER:  Yes.

49HER HONOUR:  All right.  I also tell you that if you were to be having difficulty complying with the Community Correction Order but in particular the community work condition such as for medical reasons, you could bring an application before the court - again, likely to come before me - to vary that condition. 

50There are some further orders which I have been asked to make.  I have already mentioned that there is a compensation order that has been proposed and I make that.  That is that you are to pay to David Hein, whose address will be on the order, compensation in the sum of $35,000. 

51I also make the disposal order that is sought in respect of the piece of metal and plaster board with the wrong stamp number.

52I am asked to make a forfeiture order.  I notice it is in relation to four cases of ammunition and I am not sure where the connection with these two charges lies for that.  It was not opposed that that be made?

53MS GIANNOPOULOS:  No, Your Honour.  The ammunition was found when the search warrant was executed.  As a result of him - Mr De Santis being placed on a corrections order, he becomes a prohibited person and so there is no basis for him to retain that.  For that reason, we do not oppose the order.

54HER HONOUR:  That is why you - all right.  Well, I will make that order.  And I was also asked by the prosecution to make an order for a forensic sample to be taken from you.  That is to enable your DNA to be placed on the national database.  That application was opposed.  In my view, it was opposed for good reason.  There is nothing about the nature of the offending in this case that would lend itself to easier detection were it to occur again in the future by the fact of your DNA being traceable.  In relation to each of these charges, your identity was not only known to the purchaser of the vehicle, it was your own identity that was central to them trusting you in the dealing and the purchase of each car.  You were also cooperative with investigators in providing all of your records.  I am not satisfied that the seriousness of the circumstances of this offending nor your criminal history warrants this order.  I am not satisfied that it is required in the public interest so I am refusing the application for a forensic sample.

55Now, finally, I must state what the sentence would have been had you not pleaded guilty but been found guilty after a trial on each of these charges.  I still would have been taking into account how they came to light, how long ago they occurred and the low level of seriousness with which I assessed the first matter and relatively low of the second.  The total sentence I would have imposed after a trial would have been 18 months' imprisonment, of which because of the era in which these occurred when a suspended sentence or partly suspended sentence would have been available - I would have suspended 12 months and required six months to be served.  You can take a seat, Mr De Santis, while the CCO is prepared.

56MS GIANNOPOULOS:  As Your Honour pleases.

57MR LEW:  As the court pleases.

58HER HONOUR:  Is there anything I have left out or ‑ ‑ ‑ 

59MR LEW:  No, Your Honour. 

60MS GIANNOPOULOS:  No, Your Honour.  I was not aware that there was a Coolaroo correctional office but there appears to be one now.

61HER HONOUR:  Well, I had my - because I did not have an assessment done for reasons I said on the day, it has not come back to us and I asked my Associate to look it up but ‑ ‑ ‑ 

62MS GIANNOPOULOS:  I thought it would have been Broadmeadows but it appears that Coolaroo have opened up.

63HER HONOUR:  If you want to make it ‑ ‑ ‑ 

64MS GIANNOPOULOS:  No, that is all right.  I agree with Your Honour.

65HER HONOUR:  That has opened, has it? 

66MS GIANNOPOULOS:  Yes.

67HER HONOUR:  Is that the - that seemed to be the closest to my Associate.  All right.  The process of course, they are not alerted to it yet but the CCO will be - I do not know whether it is scanned and emailed or faxed nowadays but it is sent through to them.  So they will expect Mr De Santis to report there within two working days.

68MS GIANNOPOULOS:  Yes, Your Honour.

69HER HONOUR:  Mr Lew, yes?

70MR LEW:  Your Honour, the ship has already sailed on this but Your Honour, the provisions of 6AAA do not require Your Honour to state what sentence you would have imposed if the Community Corrections Order imposed is less than a period of two years.

71HER HONOUR:  Well, I did not realise that.  I am frequently giving s.6AAA statements.  Anyway, I think I had said I would state it and I have.

72MR LEW:  Yes, Your Honour.

73HER HONOUR:  Thank you for drawing that to my attention.  I will try to keep it in my short term memory.

74MR LEW:  It seems to change quite frequently.  Every time I look at that section ‑ ‑ ‑ 

75HER HONOUR:  Does it?

76MR LEW:  ‑ ‑ ‑ there is a minor amendment to it, Your Honour.  So it is a relatively recent addition.

77HER HONOUR:  Right.  I am so used to stating it on virtually all matters. Anyway, thank you for bringing that to my attention.  Twelve months.  Yes, it is relatively straightforward.  And I will have the CCO shown to both counsel just to check and then my Associate will take it to Mr De Santis to sign.

78All right, Mr De Santis, you are now free to leave the dock.  You can re-join your family.  I am signing the CCO and you will get a copy to take with you.  You will no doubt be told by your lawyers that because the only condition I have imposed is unpaid community work, the CCO I am imposing lasts for 12 months but if you complete the only condition that is the unpaid community work sooner than that, that will bring the CCO to a conclusion.  

79All right.  I have signed that.  And there will be a copy for both sides.  And I have signed each of those ancillary orders which will be copied.  And if you can wait a few minutes, my Associate will copy them.  Or do you email them or something?  All right.  But the CCO has to be copied and given to Mr De Santis.  All right.  Could we stand the court down?  I am not sure if I am taking any reserve matters but I have got something at 2.15 anyway.  Stand it down to 2.15.

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