Director of Public Prosecutions v Giulieri
[2017] VCC 1081
•9 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00503
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL GIULIERI |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2017 | |
DATE OF SENTENCE: | 9 August 2017 | |
CASE MAY BE CITED AS: | DPP v Giulieri | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1081 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Conspiracy to attempt to pervert the course of justice and wilfully make a statement to the IBAC Commission – good character – early plea of guilty – section 8 of the Sentencing Act 1991 – imposition of a conviction.
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APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Mr G. J. C Silbert QC Ms T. Russell | John Cain, Solicitor for Public Prosecutions | |
| For the Accused | Mr T Gyorffy QC Mr R. Galbally | Galbally Rolfe | |
HER HONOUR:
1 Michael Giulieri, you have pleaded guilty to one charge on indictment, namely conspiracy to attempt to pervert the course of justice. In addition you have pleaded guilty to a summary charge that was transferred to this court pursuant to s145 of the Criminal Procedure Act 2009. You entered a plea of guilty to Summary Charge 4, wilfully make a statement which is false or misleading to the Independent Broad-based Anti-corruption Commission (“IBAC”).
2 The charges are serious and that is reflected in the penalties prescribed by Parliament. They are a maximum of 25 years’ imprisonment in respect to the indictable offence, and in respect to the summary charge, 120 penalty units or 12 months’ imprisonment or both.
3 You are aged 63, you were born on 25 July 1954. You are now retired.
4 You come before the court with no prior criminal history.
5 I shall proceed to sentence you on the basis of the summary of prosecution opening that was read at the plea hearing and is an exhibit.
6 The background to your offending concerns an operation known as Operation Ord that was commenced by IBAC in September 2013. The operation targeted specific persons suspected of engaging in conduct to defraud the Department of Education and Training (“DET”).
7 As a result of the evidence obtained during those investigations conducted between 2007 and 2014, several persons, namely Calcedonio Agazio (also known as Nino) Napoli (hereinafter referred to as “Napoli”), Carlo Squillacioti, Daniel Calleja, Robert Napoli and Domenica Napoli, participated in conduct to defraud the DET.
8 The conduct involved claiming payment for, or colluding to claim payment for, a large number of goods and services that were never actually provided to the DET. Payments were obtained either directly from the DET or from primary and secondary schools operating within the purview of the DET. Over $1 million in DET funds were received by the above-named accused as a result of the alleged offending.
9 You were peripheral to this major fraud investigation. Your charges arise from your personal dealings with the principal accused, Napoli.
10 Napoli was an employee of the DET for 38 years, from March 1977 to April 2015. He progressed through the ranks of the DET commencing as a financial officer and eventually became General Manager of the Schools Finance Unit. In that capacity, it was an executive role, he was directly responsible for the administration of approximately $5 billion of the DET’s budget.
11 Napoli awarded DET contracts to various businesses in which he, members of his family and/or friends, had a financial interest.
12 You too were a long term employee of the DET. You worked for approximately 40 years for that department. You too progressed, commencing initially as a primary school teacher progressing to an assistant principal, and eventually principal.
13 Between 1994 and 2007, you were Principal at the Essendon North Primary School. In November 2007, you relinquished that role due to illness. Around that time, you were diagnosed with cancer and had to undergo complex surgery and have other treatment.
14 In May 2009, you resumed employment with the DET and intermittently held the role of Executive Principal within the western region office.
15 In December 2011, you took over the role of Principal at Keilor Heights Primary School until your position was terminated in 2015, due to these offences.
16 In your role as school principal you were responsible for, amongst other things, management and allocation of the school’s finances.
17 You had first met Napoli in 1994 and remained friends for many years. In June 2013, you began to have increased contact with him through attendance at board meetings of an organisation known as the Schools Governance Australia (“SGA”).
18 Turning to the circumstances of the offending.
Charge 1 – conspiracy to attempt to pervert the course of justice.
19 In March 2014, Operation Ord’s investigation was extended to include Napoli and persons connected to him. He became aware of the investigation and, as a result, sought assistance from you in an attempt to legitimise fraudulent payments made to his son, Raffaele Napoli (also known as Ralph). You did not know his son well and knew that he had never worked at the Essendon North Primary School during your time there as Principal. Despite this, you agreed to help Napoli by writing a letter to say Ralph did some work at the school some years previously.
20 Napoli convinced you that he was facing an internal audit to account for a discrepancy in the DET’s budget and that this letter would assist him. In effect he wanted a letter stating Ralph worked at Essendon North Primary School some years earlier. Despite knowing this fact to be untrue, you agreed to his request for assistance.
21 On 23 May 2014, you and Napoli both attended an SGA board meeting, where you spoke to Napoli. He asked “Can you get that letter for me?” and you said that you would.
22 Between 24 and 25 May 2014, you prepared the letter for Napoli. As per his instructions, the letter was dated 1 December 2003. The contents contained a request for funding in the amount of $30,000 to develop a physical fitness program at the Essendon North Primary School.
23 On 27 May 2014, you attended Napoli’s home address in Kealba, and at that time the residence was under surveillance by way of a listening device.
24 In a recorded conversation on this day, Napoli explained to you that he had paid $2,000 of DET funds to a guy named Daniel (co-accused Daniel Calleja) and his company, Innovating Visuals Pty Ltd (“IVisuals”) for audio-visual work that had not been done. Napoli then requested that you contact Calleja and organise for him to make a promotional video for the Keilor Heights Primary School in order to justify such payment. You agreed to do so and contacted Calleja on a number that was provided to you by Napoli.
25 In early June 2014, you again attended Napoli’s home address and spoke to him about the letter that you had prepared. He asked you to amend the letter to include that Ralph had worked at the Essendon North Primary School between 2004 and 2007. Also discussed was what you should say in the event that you were ever asked about Ralph working at the school.
26 On 30 September 2014, Napoli spoke to you by phone and discussed the need to arrange a meeting between himself, you and Ralph in order to rehearse a cover story for the fraudulent claim.
27 On 7 October 2014, you attended a pre-arranged meeting with Napoli and Ralph Napoli at a café in East Keilor. IBAC investigators recorded this meeting by use of surveillance.
28 During the meeting, Napoli informed you for the first time that he was facing more than just an internal DET audit. Rather, he was being investigated by IBAC. He further informed you that IBAC were on a “witch hunt” and that Napoli and you would need to cover for Ralph.
29 Napoli and you both coached Ralph on that occasion as to what he would say if he was called upon to answer questions before the IBAC investigation. You observed that Ralph was visibly uncomfortable during the meeting and recalled him repeatedly saying “But I didn’t do the work there”. Nonetheless, both you and Napoli developed the false story as agreed.
30 At one stage during the meeting, Ralph became agitated and you said to him “We’re trying to cover for your dad here; he’s in a bit of strife”.
31 On 30 October 2014, you saw Napoli at an SGA board meeting. When the meeting had finished, he approached you in a corridor and told you that IBAC would likely want to speak with you. Napoli assured you that you had nothing to worry about. He said IBAC was applying due diligence. You agreed to maintain the made-up story that had been developed during the meeting at the East Keilor café.
32 On 11 November 2014, IBAC investigators served you with a summons requiring your attendance to appear on 27 November 2014 for a private examination, pursuant to the terms of the Independent Broad-based Anti-corruption Act 2011.
33 You began to panic, attended Napoli’s home and spoke with him that evening. You had a conversation with Napoli, during which Ralph and Napoli’s wife, Josephine, were present. They discussed the summons that you had received, as well as the fact that Napoli, Josephine and Ralph Napoli were also required to attend IBAC.
34 During this conversation, Napoli explained the roles of the various companies who were under investigation by IBAC, including IVisuals. He reminded you about the arrangement for Daniel Calleja (IVisuals) to prepare a video for his school.
35 You next saw Napoli on 25 November 2014 at another SGA board meeting, two days prior to your scheduled examination with IBAC.
36 Napoli approached you and said “I need to see you desperately, we have to get your story right or I am shot, gone”. Napoli asked you to come over to his house that night, again at 9pm, at which time Ralph would be home.
37 You attended his home, as requested, and there was a conversation that took place between Napoli, Ralph and Josephine Napoli. You all discussed the false story that was to be relayed to IBAC, namely, that Ralph had provided work to the Essendon North Primary School as a “researcher and consultant”. You were actively engaged in the creation and refining of the false story.
38 Napoli also instructed you to destroy that letter that you had prepared earlier in the year.
39 Those facts constitute Charge 1 on the indictment.
Charge 2 – wilfully make a statement to IBAC which is false or misleading
40 On 27 November 2014, you attended IBAC for the private examination and gave evidence on oath. You provided false evidence about Ralph Napoli working at the Essendon North Primary School in the terms that were described in paragraph 34 of the opening.
41 Later in the course of the examination, IBAC investigators confronted you with evidence contradicting your oral evidence that you had given on oath. In particular, you were shown a photograph from surveillance officers which showed you, Napoli and Ralph Napoli sitting together at the café in East Keilor.
42 Once confronted with this information, you made admissions that contradicted your earlier evidence.
43 Those admissions were:
(a)that you had met Napoli with Ralph Napoli a number of times in relation to the matters before IBAC;
(b)that Ralph Napoli had never worked for the Essendon North Primary School in any capacity;
(c)that you had been asked by Napoli to cover for him by saying that Ralph Napoli had worked at your school, as previously stated, and that Napoli had put pressure on you to do this; and
(d)that you had been to Napoli’s home address on two occasions to discuss the false story and the IBAC investigation.
44 On 15 and 16 December 2014, you participated in a recorded criminal interview with IBAC investigators. You made full admissions to the allegations that you had engaged in a conspiracy to attempt to pervert the course of justice and that you had made false and misleading statements to IBAC.
45 On 23 December 2014, you made and signed a 12-page statement to IBAC detailing your involvement in the offending and providing additional evidence in relation to Napoli’s offending.
46 Those facts constitute Summary Charge 2.
47 In sentencing you, the court must denounce your behaviour and must emphasise deterrence and impose just punishment. I consider the gravity of your offending, in particular Charge 1, as very serious. Underlying your offending behaviour is your willingness to commit a crime in furtherance of Napoli's corrupt activities. The fake story developed over the period of eight months from March 2014 to 27 November 2014.
48 It appears that Napoli was willing to exploit his influence upon you. You were a willing participant in this conspiracy to attempt to pervert the course of justice. Such actions must be condemned and on behalf of the community I formally denounce your behaviour. You actively participated in Napoli's scheme to create a false story with respect to both his son Ralph and Daniel Calleja in the manner that I have already described.
49 Your criminality does not reflect just one bad decision but rather a series of real errors of judgment on your behalf. Mr Gyorffy, your counsel, was not able to articulate to the court's satisfaction your motivation for this offending. It seems somewhat inexplicable and bizarre given that you had nothing to gain professionally, personally or financially as a result of your conduct. This conduct represents a real breach of trust on your behalf. It is not the sort of conduct one expects of a person who occupied such a responsible role as you did as Executive Principal of the Western Regional Office of DET.
50 If successful, the conspiracy had the potential to mislead the IBAC investigators and would have bolstered Napoli's corrupt behaviour. Such conduct has the potential to undermine the public's trust and respect in the DET. It has the real potential to damage reputations of the individuals involved and the organisation of which you were a part and the Public Service generally.
51 Charge 2 is also serious and deliberate conduct and the conduct leading up to the date of your private examination before IBAC shows that you really went into the examination with your eyes open and you were very deliberate in your actions. You were aware of the IBAC investigation into Napoli from 7 October 2014. That was the meeting at the café at East Keilor.
52 Notwithstanding your awareness, you agreed to cover for Ralph at Napoli's suggestion and actively coached Ralph, together with Mr Napoli, if called upon by IBAC how to answer questions.
53 On 30 October 2014, you were warned by Napoli IBAC would be likely to want to speak with you and you agreed to maintain the made up story. Then, after receiving the IBAC summons for a private examination, you further met with Napoli and agreed to maintain the false, made up story.
54 You had discussions with him at his house on both 11 November and
25 November 2014 and the last meeting was only two days before your requirement to attend the private examination at IBAC.
55 The gravamen of this offending is the giving of the false evidence at the private examination, knowing that your story was false. You knew before you were examined the purpose of the IBAC investigation but nonetheless you went ahead and gave the false evidence.
56 This investigation was focused on very serious allegations that senior departmental officers were engaging in conduct to defraud the DET of significant sums of money. It is important for this court to acknowledge and protect the integrity of the IBAC process. Serious corruption was the target of the inquiry.
57 Again, this is an example of you breaching your professional responsibilities and as an Executive Principal within the DET it is not the sort of conduct you would expect of such a senior public servant. Your actions were improper and must be condemned.
58 I consider your moral culpability to be high. This is not low-level offending; it was deliberate and planned, notwithstanding you gained nothing personally, and I assess your offending as being mid-range for this sort of offending.
59 As a result of the IBAC investigation into these matters, you were dismissed from your role as principal of the Keilor Heights Primary School and you no longer work for the DET.
60 Procedurally, I noted you were charged on 29 December 2016 and a plea of guilty was entered at a further committal mention on 16 March 2017. There was a delay in the laying of the charges that is not attributable to any actions on your behalf. IBAC made a formal report to Parliament concerning their findings on Operation Ord and then charges were laid. You were not aware at the time that you made your statement to IBAC on 23 December 2014 that you were going to be charged. You became aware subsequently but you always knew the likelihood existed. I have had regard to the fact that this matter has been hanging over your head for some years and that the delay would have caused you anxiety.
61 Following the entry of the pleas of guilty in this court, you gave sworn evidence whereby you undertook to assist law enforcement authorities in the investigation and prosecution of the offences in accordance with the 12 page statement made by you on 23 December 2014, together with the interview that you have given to IBAC investigators. You adopted the contents of your statement as being true and correct, together with a number of exhibits attached.
62 Mr Silbert confirmed that the statement has real value and is an important plank in the prosecution case against the principal offender Napoli.
63 Pursuant to s5(2AB) of the Sentencing Act 1991, because a less severe sentence will be imposed than it would otherwise have been because of your undertaking to assist, after sentencing, law enforcement authorities in the prosecution of offences, it is necessary for the court to announce that a less severe sentence is imposed and that will be noted in the records of the court together with the fact that the undertaking was given.
64 Having regard to your limited role in the overall conspiracy to attempt to pervert the course of justice, your personal history and background, antecedents, lack of prior criminal history, early plea of guilty and cooperation with the authorities, Mr Silbert indicated that, whereas normally an immediate custodial sentence would have been sought for this sort of offending, the prosecution was not seeking to do so here, and that a disposition such as a bond with conviction was open to the court to impose.
65 Mr Gyorffy, on your behalf, has sought a bond without conviction.
66 I turn now to the matters put in mitigation of penalty. I confirm I have had regard to both Mr Gyorffy's oral and written defence submissions.
67 Your plea of guilty was entered at an early stage. There is real utility in your plea, and you facilitated justice, so your sentence will be discounted accordingly.
68 I consider your plea of guilty to be evidence of remorse and contrition on your behalf.
69 When shown that your sworn evidence was contradicted by other information in the possession of the IBAC investigators, you readily made full admissions. You have been cooperative with the investigators, including making a complete statement and by agreeing to give evidence on behalf of the prosecution in accordance with your statement of 23 December 2014.
70 You are a man who comes before the court with no prior criminal history. I heard evidence from your wife, Anne Giulieri, which I accept, concerning your ill health and its effects, your long history of working with the DET in responsible roles, your passion for your employment and service to the DET generally.
71 I also heard good character evidence from Mr Ian Finlay, who has known you for about two to three years in your role as a participant on the SGA board. He was formerly a police officer in the Victorian Police Force. He spoke highly of your role and his belief that you were a diligent, intelligent person of integrity, who worked hard and made a contribution to the community through your work.
72 You are a man who has led a very productive life, not only in your role as a teacher and principal, but also in work outside the school system through training umpires, football and children’s programs.
73 I am satisfied that this course of conduct is aberrant behaviour and is incongruent to the values that you otherwise held. I accept that at the time the approaches were made to you by Napoli that you were experiencing difficulties with your complex health issues and that may have compromised your ability to exercise your judgment properly. Whilst providing a possible explanation, it in no way excuses your behaviour, which was deliberate and planned.
74 You are a man who comes from a modest background. You were raised primarily by your father. You are one of a sibship of two, your mother left the family home early, and as a consequence you were raised by your father, who was described as a strict disciplinarian. In the 1970s, your family moved to Melbourne and you were given a lot of responsibility for the day-to-day care of your younger sister. You are a person who worked diligently and hard throughout your life and you achieved much in terms of your education qualifications.
75 You met and married your wife in the 1990s.
76 I noted that you have had to deal with complex medical issues since 2006. You have had a hip replacement and you were also diagnosed with a superficial adenocarcinoma of the duodenum. You underwent a Whipple procedure, which is a complex operation, for the treatment of this condition. Post-operatively, your course was very torrid. You have developed a condition where you cannot absorb food and you began to waste away, whilst simultaneously accumulating fluid. Your condition was quite precarious for about 18 months until that condition stabilised. It was also discovered that you developed coeliac disease during that time, which necessitates a gluten-free diet, and as a result of your medical condition, you developed mild cirrhosis of the liver.
77 Depression and anxiety was first diagnosed in 2007, and that was precipitated by the deaths of several friends, work pressures and family issues. You were on prescribed medication and you were referred for psychological counselling. On top of that, you had to deal with your difficulties associated with the diagnosis of cancer and your other associated complex medical conditions, such that your depression and anxiety was further destabilised.
78 You are still being treated for anxiety and at times those symptoms overwhelm you. Your current symptoms are being managed appropriately with medication. Also, when anxious, you become hypertensive, but with increased doses of your medication, your hypertension settles.
79 As a result of the Whipple procedure that you had for treatment of your carcinoma, you have been left with an inability to absorb vitamin B12, and therefore you require B12 injections every three months.
80 Dr Steven Zebic, your general practitioner, describes you as being a person of fragile personality and capable of deteriorating quite rapidly should you be placed under any major biological stress.
81 Associate Professor Benjamin Thomson, your general surgeon, confirmed he performed the Whipple operation in 2008 and a further operation in 2010 to investigate for recurrent cancer, as your condition was deteriorating rapidly. He now considers you cured of your duodenal cancer. He confirms your ongoing problems with coeliac disease and notes that you still have symptoms.
82 In April 2015, whilst holidaying in Fiji, you suffered a mid‑brain stroke. The cause of that was found to be a hole between the chambers of the heart such that you have also had to undergo minor cardiac surgery. You recovered well from a functional point of view but you are tired, and there are some issues of minor balance problems.
83 As I have already indicated, I have had regard to your previous good character. I consider you to be a person who has otherwise led a productive and exemplary life and who has made significant contributions to both the community, through your profession of teaching and through extra-curricular activities.
84 Sadly, the decades of work and your achievements have been stripped away by reason of you agreeing to enter into this criminal activity with Napoli. I have taken into account you have already suffered a measure of extra-curial punishment by reason of the offending, that is the loss of your job.
85 Given your plea of guilty, your remorse, good character, age and conduct generally following the admissions to the IBAC investigators and the making of the statement, I consider the need to emphasise specific deterrence is moderated. General deterrence, however, is still a significant factor. I agree with Mr Gyorffy's submission there is a significant overlap between the offences as the first charge is the agreement to do the act comprising the second charge.
86 Overall, I consider you have excellent prospects of rehabilitation. The likelihood of you reoffending in any regard is negligible.
87 It has been submitted on your behalf that a bond without conviction or a fine would be within the range applicable to your offending.
88 The court in exercising its discretion whether or not to record a conviction must have regard to the factors set out in s8(1) of the Sentencing Act 1991. I must have regard to all the circumstances of the case, including the nature of the offending, your character and past history, and the impact of the recording of the conviction on your economic or social wellbeing or on your employment prospects.
89 You are now aged 63 and, as I have said, until this offending led a blameless life. You are in ill health and retired. A conviction will impact on your social wellbeing. There was no evidence led about any detriment on your economic wellbeing.
90 Given the gravity of your offending which has been emphasised in these sentencing remarks, I propose to exercise my discretion to impose a conviction with respect to both charges.
91 The recording of convictions is necessary to mark the seriousness of the offending and to confirm the importance of the IBAC processes.
92 The formal court orders are on the one charge on the indictment, conspiracy to attempt to pervert the course of justice, and the Summary Charge No.4, wilfully make a statement which is false or misleading to IBAC, you will be convicted and I shall adjourn the proceedings for a period of two years and you shall be released upon giving an undertaking to be of good behaviour during the two years of the adjournment and you must appear before the court if called upon to do so during the period of the adjournment.
93 Upon giving that undertaking the proceedings will be adjourned to 9 August 2019. If on that date the court is satisfied you have observed the conditions of the undertaking the charges will be dismissed without any further hearing of the proceedings. If you breach the condition to be of good behaviour you may be charged with an offence and sentenced for that offence and re-sentenced for these offences.
94 The adjourned undertaking has been explained to you and has been signed by me. You have indicated that you understand the effect and conditions of the order and you consent to that being made and you have signed that order.
95 Finally, I make the order pursuant to s464ZF(2) that there be a forensic procedure for the taking of a scraping from the mouth or a blood sample. I have made that order having regard to the seriousness of the offences. The order is by consent and I consider the order is warranted and is in the public interest.
96 I have to inform you, Mr Giulieri, that if at the time of the request you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
97 I have signed the orders and it will be necessary for you to undergo that procedure at Keilor Downs Police Station during the period of four weeks commencing from today's date.
98 I have not made any declaration pursuant to s6AAA because no term of imprisonment has been imposed.
99 That concludes my sentencing remarks. Thank you. I will just stand down now. Mr Giulieri can be released from the dock. I will ask my associate to prepare copies of the undertaking to be provided to Mr Giulieri and once he has that document, Mr Galbally, he is free to go.
100 MR GALBALLY: Thank you, Your Honour.
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