Director of Public Prosecutions v Italiano

[2017] VCC 1928

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00914

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELA JOY ITALIANO

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September & 11 December
DATE OF SENTENCE:	11 December 2017
CASE MAY BE CITED AS:	DPP v Italiano
MEDIUM NEUTRAL CITATION:	[2017] VCC 1928

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW
Catchwords:                  Sentence – Obtaining a financial advantage by deception.
  Aggregate sentence/continuing criminal enterprise.
Legislation Cited:          Sentencing Act 1991
Sentence:  Convicted and sentenced to a total effective sentence of 3 years
  and 6 months with a non-parole period of 2 years.
  Section 6AAA declaration:  Conviction and sentence of 5 years
  imprisonment with a non-parole period of 3 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan	Office of Public Prosecutions
For the Accused	Mr M. Allen	Doogue + George

Pages 1 - 8

 

 

HIS HONOUR: 

1You have pleaded guilty to 20 charges of obtaining a financial advantage by deception.  The offending occurred over 17 months from 12 March 2015 until 31 July 2016.  17 charges are rolled up charges covering a month each and in total there were 1,326 separate fraudulent transactions.  They were all frauds on MLC superannuation.  Each of these 17 rolled up charges carries a maximum penalty of 10 years' imprisonment. 

2From these 1,326 transactions, three transactions have been extracted and found Charges 11, 13 and 15 as continuing criminal enterprise charges.

3This is due to the amounts involved being $94,300 on or about 21 December 2015 in Charge 11, $50,000 on or about 19 January 2016 in Charge 13 and $50,000 on or about 29 February 2016 in Charge 15.  They carry a maximum penalty of 20 years' imprisonment.

4The circumstances of your offending are set out in Exhibit A, Prosecution Opening for Plea dated 13 September 2017 and Exhibit B, a further Prosecution Opening for Plea dated 11 December 2017.

5Briefly the facts which found the charges are that you had a superannuation account with MLC Superannuation from about December 2006.  It had about $65,000 rollover in the account as at 2014.  After previous approaches to MLC on the basis of hardship, you legitimately accessed some funds.  Then your criminality commenced via what the MLC investigator referred to as "computer glitch" in their systems. 

6It involved your capacity to, in effect, access an MLC off system bank account and move funds utilising a PayPal account you had linked to MLC.  You were able to access via your PayPal account MLC superannuation funds on a regular basis over the 1,326 transactions in the period.  You unlawfully obtained $1,422,976 in funds for your own use.

7As the schedules setting out each transaction show, the 1,326 transfers out involved some amounts as low as single figure dollar amounts.  But at other times went up to much larger amounts. 

8The way you accessed the funds was virtually the same across the 17 months of offending and all 20 charges.

9As stated, three amounts being $94,300, $50,000 and another $50,000 have been extracted from the 1,326 transactions.  They comprise the three continuing criminal enterprise offences. While your criminality involved the same fraudulent procedures adopted using computer access and PayPal to obtain the MLC funds, these three amounts do indicate something of a jump up in quantum as it were and the level of your fraudulently obtaining financial advantage.  Of course, these three attract the higher maximum sentences.

10You were remanded on 3 February 2017 and have been in custody since then.  You pleaded guilty at an early stage.  There is no victim impact statement however, as well as the corporate entity involved in your fraudulent offending, other people have directly suffered.

11For example, PayPal were able to "take back" $17,746 from your landlord for rent paid on the home you, your son and your partner, Brendan Klevicare lived at.

12You have admitted a criminal record with one relevant offence some years ago.  You attended Ringwood Magistrates Court on 24 July 2007 on one charge of obtaining financial advantage by deception.  You were given an adjournment without conviction.  That offence concerned some false document about a driver's identity in relation to an insurance claim concerning a motor vehicle you owned that was in an accident. 

13You are aged 35 years.  You have a long term relationship of many years with Mr Brendan Kleverkamp.  He is the father of your nine year old son.  Your son has mental health problems as described in Exhibit 4.  You have had a good employment history from age 16 to about 32 and up to around 2014.

14You rose to become an accounts manager earning about $140,000 a year.  You became involved with alcohol and drugs in your teenage years.  By about 2012 drugs had become a severe problem and you were using ice.  The ice addiction eventually saw the end of your employment history.  Ice has loomed large in your life unravelling.  Gambling became a major problem.

15Over the two hearing days a number of exhibits were tendered on your behalf.  These were Exhibit 1, Outline of Defence Submissions, Exhibits 2 and 3 were two reports from Dr Aaron Cunningham, forensic psychologist dated 7 September 2017 and 14 September 2017.  Exhibit 4, Report from Kim Drever, paediatrician, dated 10 May 2017. Exhibit 5, Testimonials from Brendan Kleverkamp dated 17 September 2017 and Mr & Mrs Frank Kleverkamp undated but with fax date 15 September 2017.   Exhibit 6, Bundle of documents concerning your time in custody including certificates, statements of results, correspondence, urine analysis results and others. Exhibit 7, Letter from Alana Blackett, Uniting Connections, dated 15 September 2017.  Exhibit 8, Foreniscare psychiatric report by Dr. Remy Glowinski dated 27 October 2017.  Exhibit 9, Third report from Dr. Aaron Cunningham dated 6 December 2017.  Exhibit 10, Letter from Julie Jenson, Gamblers Help, date 5 December 2017. Exhibit 11, Letter from Jill Faulkner dated 8 December 2017.

16These documents set out your personal circumstances in detail and do not need any more repeating.  Documents confirm you have used your time in prison productively.

17Dr Aaron Cunningham, forensic psychologist, has diagnosed a Major Depressive Disorder.  On the first hearing day of the plea the issue of Verdins principles was raised.  His first two reports were the subject of dispute.  A pre-sentence report was requested.  This was ordered.  It is now Exhibit 8, Dr Glowinski's report.  Dr Glowinski considered you suffered from a psychiatric condition but not a Major Depressive Disorder or other major mental illness.  His view was that psychiatric symptoms arose from your significant ice habit and your offending.

18Importantly though, at the time of sentence he diagnosed that you are suffering from an Adjustment Disorder with mixed anxiety and depressive symptoms.  This has followed from your drug problem and the consequences that have flowed from your offending. 

19Dr Cunningham gave oral evidence on the second plea date today.  He agreed with a lot of what Dr Glowinski reported but his diagnosis regarding depression was the more serious condition described as Major Depressive Disorder rather than Dr Glowinski's Adjustment Disorder with anxiety and depressive symptoms. 

20Whatever the precise diagnostic label and without hearing from the other expert, Dr Glowinski, it cannot be precisely determined, I nevertheless accept that at the time of sentence you are suffering from clinically diagnosable depression.  I take it into account in moderating sentence in a limited way but only in the context of it being relevant to your mental condition now at the time of sentence. 

21Your drug addiction was the main contributor to your offending.  It followed problems with your son's care.  It led you away from a commendable employment record into unemployment.  It also led to relationship violence.  I accept your depression was a background factor but did not have any causative connection with your offending.  Your cognitive function and intelligence are in the average range.  You suffer no intellectual impairment.

22The major principles in Verdins are confined to impairment of mental functioning.  I am not persuaded that you suffered from any impairment of mental functioning when you offended.  Defence counsel has properly conceded this.

23The prosecution conceded your depression will make your time in prison more burdensome and that perhaps custody could worsen your depression, but otherwise no Verdins principles applied.

24I am prepared to accept that your depression is likely to be exacerbated by prison as well as make your time in custody more burdensome.  I accept isolation from your partner and your son is relevant and you will suffer anguish at not being able to care for your son which will also add to the burden of prison.

25I am not satisfied that general deterrence should be moderated given the nature, the number of transactions and the many months involved in the extensive course of your offending.  But I do moderate specific deterrence to some extent in all the circumstances of your case.

26I consider you have good prospects for rehabilitation.  The exhibits and in particular your progress in custody support this.  The non-parole period reflects your good rehabilitation prospects.  You have support from your partner and his parents but on the other hand it has to be said your partner has played a role in your addiction problems and relationship violence. 

27Your counsel pointed to a number of matters both in Exhibit 1, the written submissions and orally on both hearing days that are to be taken into account in mitigation.  I have done so.

28You pleaded guilty and did so at an early stage.  That plea and other evidence indicates genuine remorse.  You have saved the community time and expense of a trial that would have been quite lengthy.  You spared witnesses the ordeal of coming to court. In custody you have made some real progress as you set out in detail in the exhibits.

29A number of background matters were raised and I will not repeat them in any detail.  Your childhood involved domestic violence and trauma, chronic drug and alcohol abuse, although they ceased for a few years when you had your son. 

30Addiction became severe when you had difficulty coping with your son's ill health when he was about aged four.  Addiction to ice then effectively ended a good employment history.  Exhibits 2 and 4 set out your son's behavioural (ADHD) and other health problems. 

31I enquired of the parties on the first day of the hearing about the appropriateness of an aggregate sentencing disposition and invited their comment.

32I have made it clear I propose sentencing by way of an aggregate approach with respect to the 17 charges that are rolled up charges.  All of these 20 offences involve exactly the same criminal activity on your part including therefore the three continuing criminal enterprise offences.  All 20 charges involve offending founded on the same facts and form or are part of a series of offences of the same or a similar character.  In fact, they could be described as identical in character, the only difference being amounts and dates.  Nevertheless the three continuing criminal enterprise charges must be dealt with separately and require some cumulation on the aggregate sentence.

33Both parties agreed with this approach as being open to the court and that aggregation was an option with respect to the 17 rolled up charges.  Your counsel submitted that imprisonment was the only disposition open.  I agree.  The prosecution submitted only imprisonment was open and provided some materials on other sentences in this state.  The facts range very widely.  They only give very limited assistance.

34As well as those matters personal to you to which I have referred including your prospects of rehabilitation I must also take into account other relevant sentencing considerations.  General deterrence and denunciation carry significance in this type of offending.  While both general and specific deterrence are of importance in matters such as this, it is more so with general deterrence than specific deterrence in your case.  Some moderation is appropriate regarding specific deterrence.  I must seek to deter not only you but in particular other who engage in such conduct.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  Any sentence must seek to promote your rehabilitation which is not only in your interests but those of the community.  Totality and mercy are principles that have to be kept in mind in determining just punishment in your case. 

35Stand up please, Madam.  You are convicted and sentenced by way of aggregate sentence on the 17 rolled up charges being charges 1 to 10, 12, 14, 16 to 20 to three years imprisonment. 

36On each of charges 11, 13 and 15 you are sentenced as a continuing criminal enterprise offender.  You are convicted and sentenced on charge 11 to nine months' imprisonment with two months to be served cumulatively with the aggregate sentence and with the sentences on charges 13 and 15.  You are convicted and sentenced on charge 13 to nine months' imprisonment with two months to be served cumulatively with the aggregate sentence and with the sentences on Charges 11 and 15.  You are convicted and sentenced on Charge 15 to nine months' imprisonment with two months to be served cumulatively with the aggregate sentence and with the sentences on Charges 11 and 13. 

37This makes a total effective sentence of three years and six months. I direct that you serve two years before becoming eligible for parole. I declare 266 days pre-sentence days pre-sentence detention pursuant to s.18 of the Sentencing Act be reckoned as served. 

38Pursuant to s.6AAA of the Act, I declare that but for your pleas of guilty I would have imposed a total effective sentence of five years' imprisonment with a three years and four months non-parole period.  I will enter in the records of the court that you are sentenced for a continuing criminal enterprise offence on Charges 11, 13 and 15. 

39Is there anything else required gentlemen?

40MR ALLEN:  No, Your Honour.

41MR REGAN:  No, Your Honour.

42HIS HONOUR:  Take the lady, please.

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