Director of Public Prosecutions v Di Valentino
[2024] VCC 91
•9 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMENICO DI VALENTINO |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2024 | |
DATE OF SENTENCE: | 9 February 2024 | |
CASE MAY BE CITED AS: | DPP v Di Valentino | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 91 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Plea of guilty - obtaining a financial advantage by deception -
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Boulton v The Queen [2014] VSCA 342; DPP v Campesato [2019] VCC 992; DPP v Guy [2016] VCC 1497; DPP v Veric [2018] VCC 1907; DPP v Webster [2017] VCC 1825; DPP v Jones [2019] VCC 339; Koukouravas [2020] VCC 128; DPP v Kirakopoulos [2017] VCC 1297; DPP v Venn [2017] VCC 1043; DPP v Chapman [2016] VCC 231; DPP v Wilson [2016] VCC 89.
Sentence: Six months imprisonment and a community correction order for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Offender | Mr R. Malhotra | MK Law Firm |
HIS HONOUR:
1Domenico Di Valentino, you have pleaded guilty to 17 charges of obtaining a financial advantage by deception, for which the maximum penalty is 10 years’ imprisonment.
2Your offending occurred when you were employed at Australian Unity Trustees Ltd (AUTL), which is a wholly owned subsidiary of Australian Unity Ltd (AUL). The circumstances of your offending are undisputed and are set out in the prosecution opening, tendered as Exhibit A on the plea.
3Your offending took place between 24 July 2018 and 4 August 2021 when you were employed as a trustee estate manager by AUTL. You were between the ages of 51 and 54 years old at the time of the offending. Prior to working for AUTL you were employed at Flinders Trustees. That company was acquired by AUL on 1 July 2015, and from 2 November 2015 your employment was with AUTL.
4AUTL provides various services which include the administration of deceased estates. Your role as estate manager involved managing and distributing deceased estates, including developing an inventory of estate assets; calling-in, transferring, redeeming, and/or selling estate assets; paying estate expenses and liabilities; determining beneficiaries; and then distributing the estate to the beneficiaries. You were able to approve legitimate estate expenses of up to $10,000.
5Your employment with AUTL ended on 19 January 2022 due to unrelated performance issues. At that time, you were managing 32 active estates under administration.
6On 21 March 2022, Ms Kate Gibson took over your role as estate manager in the Victorian office and was allocated estates previously managed by you. She reviewed internal transactions in relation to one of the estates (the Kruger estate). She noticed that repairs and maintenance had been performed on a property connected to the estate no longer the responsibility of AUTL.
7She obtained copies of the invoices purportedly rendered by Jim’s Building Maintenance which had been paid by funds from the Kruger estate. The invoices were false invoices, fraudulently produced by you. They had no phone number or email and no ABN recorded and the company logo was not a 'sharp image'.
8On 3 June 2022, suspicious of the expenses claimed, Ms Gibson emailed the head of Trustee Services asking her to examine whether there were any emails or correspondence in respect of work done by Jim’s Building Maintenance as claimed. No such emails or correspondence existed.
9Ms Gibson also noticed invoices for Macbeth Genealogical Services in respect of the estates of Pacilli and Gawne where the expenses had been paid into the same Commonwealth Bank account as in respect of the Jim’s Building Maintenance expenses. She also discovered that you had submitted the payment request forms. The Commonwealth Bank account into which the funds had been paid was yours.
10On 9 June 2022 these irregularities were reported to AUTL’s internal risk and compliance team and then referred to the internal audit team. An investigation commenced. It emerged that over the three years you had used the same methodology of claiming false expenses, supported by fraudulent invoices, over 62 transactions for a total amount of $197,529.30. The exact details of the offences, including descriptions of the false invoices, are set out in the schedules to the Indictment. They included claims for legal services, barristers’ fees, rubbish removal, household repairs, flights, funeral and burial expenses, garden maintenance, genealogical searches and other expenses.
11You paid these amounts into three different bank accounts as follows:
(i) Between 24 July 2018 and 30 August 2019, a total of $47,256 was transferred from the accounts of deceased estates into your National Bank account (No 393894737). These amounts were deposited in 23 separate fraudulent transactions.
(ii) Between 1 November 2018 and 4 August 2021, a total amount of $130,287.80 was transferred from deceased estates into your Commonwealth Bank account (No 11010388). These amounts were deposited in 36 separate fraudulent transactions.
(iii) Between 2 May 2019 and 16 December 2020, a total amount of $19,985 was transferred from deceased estates into a second Commonwealth Bank account (No 5008184). These amounts were deposited in three separate fraudulent transactions. This bank account was in the name of your mother, Gemma Di Valentino. It is not suggested your mother had any knowledge of the fraudulent transactions.
12The beneficiaries of the deceased estates received lower distributions from the estate than they were entitled to; however, AUTL will reimburse the affected beneficiaries with interest. You fraudulently obtained money from 17 deceased estates as set out in Paragraph 19 of the prosecution opening.
13You were arrested on 23 December 2022 at your residential address of Birchmore Court, Taylors Lakes. You were interviewed at the Melbourne West police station, and you made significant admissions. You told the police you were financially ruined and that you had a lot of debt. You said you were suffering from depression at the time. You said you needed money to be able to live. You said you raised an invoice and that was basically a copy-and-paste thing, and the funds would go into your bank account. You said basically all you did was fill out the authority form. You said you regretted your actions.
14You were charged on 23 December 2022 and a filing hearing took place on 28 December 2022. Negotiations took place in relation to the exact charges and on 14 July 2023 you pleaded guilty at a committal mention proceeding. The prosecution accepts that this was a plea at the earliest opportunity, as do I. I accept your guilty plea indicates remorse for your offences and a willingness to facilitate the course of justice. I give you credit for the utilitarian value of your plea which has contributed to the reduction of the court’s pandemic backlog. Any trial in this matter was potentially lengthy and complicated and therefore the utilitarian value is significant. You must receive a palpable sentencing discount for your plea.
Personal circumstances
15Your personal circumstances are set out in the psychological report of Rebecca Fakhri dated 29 January 2024 and you provide details of your family background in the letter you wrote which was tendered as an exhibit,
16You are 56 years old. Your parents were Italian migrants. Your father passed away in 1994. Your mother passed away in March 2023. You have two older sisters aged 72 and 63.
17You were brought up in a two-bedroom rental property in Richmond.
18You told Ms Fakhri, and you mention in your letter, that you were subjected to physical and emotional abuse by your mother growing up.
19You lived at home until you were 23 years old, leaving when you got married. You then lived in a unit in Mill Park for eight years and then in Epping, and eventually in Mernda. Your marriage broke down in 2016 and you have since lived at a rental property in Taylors Lakes.
20You completed VCE at De La Salle College. You describe some bullying at school due to your Italian background. You also say you were sexually assaulted by a pastor at De La Salle. After school you completed a diploma in accounting and then a Bachelor of Business. You worked at Humes Concrete for 18 months in their accounts department. You then worked at ANZ Trustees for nine years and then for NAB Trustees for eight years. You then took on the role which led to you ultimately working for AUTL, as described in the prosecution opening. You worked there for several years.
21After you left AUTL you worked with Equity Trustees, but you left that employment when these matters came to light.
22Since leaving that employment at Equity Trustees you have worked driving for a food delivery service, DoorDash, and I am told you have also been receiving some income protection payments.
23Your only significant romantic relationship has been with your wife. You separated in 2016, but you have since then had a positive co-parenting relationship. You took over some of the debts of the marriage which you have been paying back since that time. That is apparent from an examination of the bank accounts.
24You have some significant health problems. You had heart surgery at the end of 2022, and you are currently prescribed warfarin. You have other health issues as set out in the medical material.
25The psychological report indicates that your wifeand your children, were unaware of your legal predicament. You told Ms Fakhri you feared being disowned if you told them about the offending.
26However, on the plea I was provided with a letter from your wife. In that letter she indicates ongoing support for you and speaks of your positive qualities. She refers to the heart surgery you underwent in late 2022. The only reference to her knowledge of the offending is in the second-last paragraph where she says: 'Although Dominic has pleaded guilty to the offence…'. She did not attend court. Today I asked Mr Malhotra about this. It seems that you only very recently told her about the offending. The assessment for the report was on 15 January 2024 and the report is dated 29 January 2024, so it is since then that you have told your wife about the offending. I have been told that and I accept it.
27I have also been told that you intend to reconcile with your wife and live together again in Mernda. You and your wife have two daughters who are now 30 and 27 years old. One of your daughters lives in the United Kingdom.
28I have been provided with a letter from a psychologist, Lemonia Kollaras, dated 1 February 2024. You began therapy with her on 7 September 2023 and you have had six sessions since then. She describes you as suffering from a longstanding history of depression and anxiety. She describes your symptoms as feelings of sadness, low energy, sleep disturbance, excessive worry, difficulty with concentration and self-harm behaviour. These symptoms have affected your daily functioning. She says the prognosis for your mental health is positive with ongoing therapeutic support.
29A further reference was provided from a friend of yours, Mr Vince Vomero. He refers to the fact that you are in the process of reconciling with your wife and family and generally describes his friendship with you.
30In her report Ms Fakhri describes you as suffering from an adjustment disorder resulting from the death of your father in 1994. She says you have a major depressive disorder and a post-traumatic stress disorder because of the ongoing physical abuse you suffered from your mother and the sexual assault at De La Salle. She says you have symptoms of a panic disorder and a social anxiety disorder. Additionally, you have a history of self-harm/suicidal behaviours. Ms Fakhri says that a prison sentence will weigh more heavily on you given your historical and current psychological issues than on a person without such issues.
31Your counsel, Mr Malhotra, submitted Verdins principle 5 therefore applies.[1] I accept that that principle has application in this case, and I have taken that into account in deciding the sentence.
[1]R v Verdins & Ors [2007] VSCA 102.
32I am also satisfied that a prison sentence will weigh heavily on you given you are a person in poor health who will be serving your first sentence of imprisonment at a comparatively mature age. Ms Fakhri says in her report you are likely to be a vulnerable prisoner, and I accept this. I have taken those matters into account as well.
33Ms Fakhri says further that the volatile environment in prison could place you at risk of 'decompensation' due to your psychological conditions and that access to programs and treatments is likely to be reduced. I accept there will be an interruption to the continuity of your psychological treatment and there is a risk of prison having a detrimental impact on your mental health. I have taken that matter into account which seems to me in line with principle 6 of the case of Verdins.[2]
[2] Ibid.
34In respect of the offending, you say in your letter, and you told Ms Fakhri, that it occurred in the aftermath of the breakdown of your marriage where you took on some debt at the time of the separation and had other pressing financial obligations such as rent. You say you were at a low ebb psychologically at that time. Ms Fakhri says that you did not have 'effective coping strategies or problem-solving skills' in order to manage your psychological distress.
35Turning then to the seriousness of these offences.
36There are several serious aspects of the offending in this case. You were in a position of trust with a responsibility to administer the deceased estates in the best interests of the beneficiaries. Instead, you advantaged yourself by topping up your income from the deceased estates you were managing. Had the offending not been detected the beneficiaries would have been the losers rather than your employer who in the end has had to reimburse the estates. In my view you breached the trust both your employer and the beneficiaries, who trusted the company to administer the estate honestly in their best interests.
37Your culpability for the offending is high. The offending involved some thought, planning and preparation. You committed multiple dishonest actions over three years. Most of the charges are rolled-up offences to reflect the multiple fraudulent acts in respect of estates.
38You created false invoices to facilitate the offences. Although the offending was not overly sophisticated, because of the position you held and your familiarity through experience with the systems involved in paying out expenses detection was unlikely and only occurred because you lost your employment for unrelated performance issues. You had no difficulty diminishing the estates of significant amounts of money.
39The amount defrauded was significant and none of it, as yet, has been paid back, although I am told you have the capacity to pay back $35,000 based on inheritance from your mother. By offending in the way that you did you added around $60,000 per annum to your income.
40I accept though that substantial enrichment reflected in the acquisition of expensive items is not a feature of this case. On your annual income of approximately $80,000, you did not have much money left over after expenses and debt repayment. You were struggling financially but I would not characterise your situation as one of substantial financial distress.
41Dishonesty relating to substantial sums of money over extended periods by an employee using their position of trust in the organisation to commit the offences must be denounced by courts. General deterrence must be given considerable weight. Employees must understand that they cannot steal from their employer or the clients of the business and conceal fraudulent conduct in the way you did without facing significant consequences. These principles are clear from the appellate authorities for this type of offending.
42You have no prior convictions. You were a person of good character until you committed these offences. This is a matter of some importance, although it is not an unusual feature in dishonesty offending of this type. If you had prior convictions for dishonesty, you would not have been in the trusted position which you used to commit these offences, and that is often the situation.
43In the letter you wrote you express your remorse for the offending, and this strikes me as genuine. The offending was based on the position you held. You are unlikely to have such financial responsibility for other people’s money again. You have the support of your wife. It seems to me highly unlikely that you will reoffend again. Therefore, the importance of personal deterrence is reduced by your low risk of reoffending. Overall, in my opinion, you have very good prospects of rehabilitation.
Current sentencing practices
44The prosecution referred me to 10 County Court sentences[3] in similar cases as an indication of current sentencing practices and some of these were discussed during the plea hearing. I have considered those cases. In most of those cases the sentence imposed included a period of immediate imprisonment. In at least one of the cases that was reflected in a head sentence and a non-parole period and in some of the others the sentence imposed was a combined period of imprisonment with a community correction order. There were four cases where a community correction order without a period of immediate imprisonment was imposed. In my view in each of those cases the offending was not as significant and/or the mitigating factors were more compelling. Of course, whilst there are some common features between those cases and yours, there are also differences. No two cases are the same. The cases are simply an indication of current sentencing practices which is one of the many matters I must consider. Current sentencing practices are a guide but not a controlling factor in deciding the sentence. What is required is individualised justice to the circumstance of your case, including your personal circumstances.
[3] DPP v Campesato [2019] VCC 992; DPP v Guy [2016] VCC 1497; DPP v Veric [2018] VCC 1907; DPP v Webster [2017] VCC 1825; DPP v Jones [2019] VCC 339; Koukouravas [2020] VCC 128; DPP v Kirakopoulos [2017] VCC 1297; DPP v Venn [2017] VCC 1043; DPP v Chapman [2016] VCC 231; DPP v Wilson [2016] VCC 89.
Submissions
45Your counsel Mr Malhotra submitted that a community correction order alone was open and appropriate in this case. The prosecution submitted that the gravity of the offending in this case is such that a proper application of sentencing principles dictates a period of immediate imprisonment. But the prosecution submitted this could be achieved either by a combination sentence of a prison sentence and a community correction order or a head sentence with a non-parole period.
46I had you assessed for a community correction order. You were assessed as having a low risk of re- offending and you are suitable for such an order. I was also provided with a current mental health assessment which essentially indicates that your mental health is stable at the moment.
47In the decision of Boulton the Court of Appeal said that a sentencing judge should ask the following question:
'Given that a community correction order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires a conclusion that imprisonment with all its disadvantages is the only option?'.[4]
[4] Boulton v The Queen [2014] VSCA 342 [121].
48This was sustained planned dishonesty involving significant breaches of trust and multiple criminal acts where you obtained a large amount money, none of which has been paid back. I have formed the view that denunciation, general deterrence and just punishment dictate that there must be some period of immediate imprisonment. However, I will mitigate punishment in favour of rehabilitation by imposing a combination of sentence of imprisonment and a community correction order. The community correction order I impose will have a punitive component to it iby way of unpaid community work but will allow you to facilitate your rehabilitation by allowing you to re-enter the community to perform that order. In my opinion the period of imprisonment I have imposed is the minimum I could reasonably impose for this serious offending.
Aggregate Sentence
49I have decided to impose an aggregate sentence for the offences. Section 9 of the Sentencing Act allows me to impose an aggregate sentence in circumstances where the offending is properly described as a series of offences of the same or similar character. These offences clearly fit that description. An aggregate sentence is one sentence of imprisonment for all the charges rather than an individual sentence for each charge with orders that follow for periods of cumulation. Such a sentence allows me to reflect totality and proportionality in the sentence I impose.
Sentence
50On all charges - Mr Di Valentino, if you could stand up, please. You are convicted and sentenced to an aggregate period of imprisonment of six months and a community correction order for 12 months with the following special conditions:
·150 hours of unpaid community work; and
·Assessment and treatment and rehabilitation for mental health issues as directed. You will have to sign that order and consent to it.
51In this case, I will make a compensation order under s84 of the Sentencing Act in favour of Australian Unity Pty Ltd in the sum of $197,529.30.
52Now, we will print that order out.
53I haven't put supervision on the order because it wasn't recommended – in fact they recommended against that, so I have simply made it 'mental health.'
54Twenty hours of treatment and rehabilitation can be deducted from the community work that I have imposed.
55MR DEVLIN: If Your Honour please.
56HIS HONOUR: Is that clear enough to everyone?
57MR DEVLIN: Yes, Your Honour.
58HIS HONOUR: Yes, all right. Mr Di Valentino, you have to sign this community correction order. Do you consent to a community correction order in those terms?
59OFFENDER: Yes.
60HIS HONOUR: Now I think I should include on the custody management issues a history of self-harm behaviour.
61MR MALHOTRA: Yes, Your Honour, I was just simply going to address you on that.
62HIS HONOUR: Yes, I'm going to include history of self-harm, suicidal behaviour, health issues, major heart surgery at the end of 2022. He has his prescriptions with him and he'll need to be seen by a doctor as soon as that can be arranged. Mr Di Valentino, that means you serve six months after which you are released to serve a 12-month community correction order. I might actually send those medical health records through. If there's no objection to that I will send those records through.
63MR MALHOTRA: I can't see that there will be.
64HIS HONOUR: Can you just check with him he has no issue with that. I mean, they're his medical records.
65MR MALHOTRA: No objection, Your Honour.
66HIS HONOUR: Okay. Just bear with me for a moment.
67Pursuant to s6AAA, but for your plea of guilty, Mr Di Valentino, I would have imposed a sentence of two years with a minimum of 14 months.
68MR DEVLIN: And there was a draft disposal order.
69HIS HONOUR: Okay. No issue? I'll make that order.
70MR DEVLIN: Thank you.
71HIS HONOUR: No problem with the disposal order Mr Malhotra?
72MR MALHOTRA: No, Your Honour.
73HIS HONOUR: So there's two ancillary orders. The compensation order, that's a civil debt, Mr Di Valentino, the company can seek to enforce that amount. Mr Malhotra will explain that to you. Thanks Mr Devlin, thanks Mr Malhotra. Is there anything else I need to clarify?
74MR MALHOTRA: No, Your Honour.
75MR DEVLIN: No, Your Honour.
76HIS HONOUR: Mr Di Valentino can now go into custody.
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