Director of Public Prosecutions v Liberatore
[2024] VCC 231
•7 March 2024
lifestyle
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02342
Indictment No. K13231361
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELA LIBERATORE |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2023 | |
DATE OF SENTENCE: | 7 March 2024 | |
CASE MAY BE CITED AS: | DPP v Liberatore | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 231 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Obtaining property by deception – Obtaining financial advantage by deception – Conviction following 11-day trial – Total sum defrauded $382,400 over 2 years and 9 months – 35 separate fraudulent transactions – Well planned and executed offending – Serious examples of offences – Serious breach of trust– Offender related to victims – High moral culpability – Relevant prior criminal history – No remorse – Guarded prospects of rehabilitation – Delay – Verdins principle 5 engaged – Family hardship increasing burden of imprisonment
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269 – Markovic v The Queen (2010) 30 VR 589 – DPP v Frewstal Pty Ltd (2015) 47 VR 660
Sentence: 5 year’s and 3 month’s imprisonment – Non-parole period 3 years and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C Fairfield | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms H Anderson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Angela Liberatore, following an eleven-day trial you were found guilty by a jury of 33 charges of obtaining financial advantage by deception[1] and two charges of obtaining property by deception[2] on 16 August 2023. You were acquitted by the jury of one charge of obtaining financial advantage by deception (Charge 1). At the conclusion of the Crown case, your counsel submitted, pursuant to s 226(a) of the Criminal Procedure Act 2009, there was no case to answer on Charge 4 (obtaining property by deception). I accepted that submission and directed that an entry of not guilty in be made the court records in relation to that charge.
[1] Contrary to Crimes Act 1958 (‘CA’) s 82.
[2] Contrary to CA s 81.
2The maximum penalties for obtaining financial advantage by deception and obtaining property by deception are both 10 years’ imprisonment.
The Facts
3I find the victims, Jessica Lacivita, Peter Koukos and Antonina Lacivita, were honest and reliable witnesses and their evidence largely must have been accepted by the jury. Their evidence was supported by other evidence led by the Crown.
Background
4You were born in February 1974 and you were aged 40 to 42 years at the time of the offending.
5The victims of your offending are Antonina Lacivita, Jessica Lacivita and Peter Koukos. Antonina Lacivita is the mother of Jessica Lacivita and is your aunt by marriage – she is married to you mother’s brother. Jessica is the daughter of Antonina and your first cousin. Peter Koukos is Jessica’s husband.
6At the time of the offending, you were self-employed and operated a business, Luxury Home Designs Pty Ltd, selling residential investment properties on behalf of developers.
Summary of offending
7At the time of your offending conduct, Jessica and Peter were engaged to be married and were planning their wedding, which was scheduled to take place on 11 October 2014. You were assisting with the planning.
Antonina Lacivita
8On or before 17 March 2014, you contacted Antonina and asked her to contribute $5,000 towards the cost of a honeymoon in Fiji you said you were organising on behalf of Jessica and Peter. Antonina agreed to give you $5,000, but only as a contribution towards Jessica’s wedding dress. On 25 March 2014, you attended at Antonina’s home and collected a cheque for $5,000 from her (Charge 2 – obtaining property by deception).
9On 15 April 2014, you again contacted Antonina and told her you had met the owner of the La Mirage Reception Centre and you said you had been offered a 30 percent discount on the wedding reception if a deposit of $5,000 was paid that day. You asked Antonina for this amount to which she agreed. You attended at her home later that day and collected a cheque for $5,000 (Charge 3 – obtaining property by deception).
10It was the Crown case, which must have been accepted by the jury, that none of the proceeds you received from these two cheques were used by you for Jessica’s wedding dress or put towards the cost of a wedding reception at the La Mirage Reception Centre. Instead, you kept the funds for your own use.
Investment properties
11About this time in March 2014, Jessica and Peter were at your home. You initiated a conversation about them investing in residential property to secure their financial future. You advised them you sold residential properties for developers for which you received commissions.
12During the conversation, you recommended the couple purchase a property within a residential development in Queensland. You told them all they would have to do is put down a $1,000 deposit. You also said you would assist the couple in securing finance and provided details of where the couple was to transfer the $1,000 deposit. This was to an account belonging to you in the name of Lifestyle 4 Wealth. On 25 March 2014, Jessica transferred the money for the deposit to this account.
13On 30 April 2014, Jessica and Peter had their finance approved through Heritage Bank. The loan included finance to purchase the investment property, however this approval was later withdrawn by Heritage Bank. Due to the withdrawal, Jessica and Peter were unable to finance the purchase of the investment property within the contract deadline of 6 June 2014. This resulted in the contract being terminated by the developer and the couple losing their $1,000 deposit.
14Following this, you told Jessica and Peter you knew the developer personally and the couple could use their $1,000 deposit to secure another block of land in the second stage of the development. You said the purchase price would be $188,000 and would not require a further contract. You also said you would personally lend Jessica and Peter this money until they could secure their own finance.
15You never provided $188,000 to the developer on Jessica and Peter’s behalf and no block of land was ever purchased on their behalf.
16Jessica and Peter proceeded to obtain finance through the National Australia Bank (‘NAB’) in order to ‘repay’ you. You assisted the couple to complete the necessary paperwork. On 14 July 2014, the proceeds of the home loan were deposited into Peter’s bank account.
17On 21 July 2014, you drove Jessica and Peter to the NAB Sunshine branch where a bank cheque was issued to you in the amount of $127,500. You then arranged for these funds to be deposited into your ANZ bank account on the same day (Charge 5 - obtaining financial advantage by deception).
18On or around 17 December 2014, you produced a copy of an email to Jessica and Peter as proof the $188,000 was being held on their behalf for the purpose of purchasing a block of land and the development was due for completion by December 2016. The email was purportedly from an Andrew Chai of Mackay Investments Group, using a specified Yahoo.com email address.
19I am satisfied on the whole of the evidence you created the Yahoo.com email account, invented the name Andrew Chai and sent the email to legitimise your conduct in convincing Jessica and Peter they were purchasing a block of land and the couple owed you $188,000.
20Between 14 January 2015 and 14 June 2016, Jessica and Peter transferred a total of $35,000 to you in the belief they owed you $188,000 for the purchase of the block of land in the Queensland development. These payments give rise to 25 charges of obtaining financial advantage by deception comprising:
1.$1,300 on 14 January 2015 (Charge 6).
2.$1,100 on 13 February 2015 (Charge 7).
3.$1,200 on 11 March 2015 (Charge 8).
4.$1,400 on 13 April 2015 (Charge 9).
5.$1,500 on 11 May 2015 (Charge 10).
6.$1,400 on 12 June 2015 (Charge 11).
7.$1,800 on 9 July 2015 (Charge 12).
8.$1,300 on 7 August 2015 (Charge 13).
9.$1,900 on 4 September 2015 (Charge 14).
10.$500 on 21 September 2015 (Charge 15).
11.$1,600 on 5 October 2015 (Charge 16).
12.$1,200 on 30 October 2015 (Charge 17).
13.$500 on 16 November 2015 (Charge 18).
14.$1,500 on 30 November 2015 (Charge 19).
15.$1,800 on 8 January 2016 (Charge 20).
16.$1,000 on 22 January 2016 (Charge 21).
17.$1,500 on 4 February 2016 (Charge 22).
18.$1,500 on 18 February 2016 (Charge 23)
19.$2,000 on 7 March 2016 (Charge 24).
20.$1,500 on 18 March 2016 (Charge 25).
21.$1,800 on 18 April 2016 (Charge 26).
22.$1,500 on 28 April 2016 (Charge 27).
23.$1,200 on 13 May 2016 (Charge 28).
24.$1,500 on 27 May 2016 (Charge 29).
25.$1,500 on 14 June 2016 (Charge 30).
21In approximately May 2016, you told Jessica and Peter the development had reached construction stage and the builder needed $200,000 for a house to be built on their land. You said you would assist the couple by lending them the $200,000. You told Jessica and Peter you were able to do this by borrowing against the equity in your parents’ home and you would pay the developer directly on their behalf. Jessica and Peter never saw the $200,000 and believed it was paid by you directly to the builder. Consequently, they now believed they owed you a further $200,000.
22You assisted Jessica and Peter to apply for a further loan through the NAB. At the trial, Jessica gave evidence, which I accept, you spoke directly with NAB over the phone and pretended to be her during the process. There are no charges in relation to this alleged conduct and it’s only relevance is as context evidence.
23The loan application was approved on 16 June 2016. The proceeds of the loan were deposited into Peter’s NAB bank account. On 17 June 2016, you drove Peter to the NAB Sunshine branch, where Peter obtained a bank cheque issued to Luxury Home Designs in the amount of $200,000. On 18 June 2016, you deposited these funds into your Bank West bank account (Charge 31 - obtaining financial advantage by deception).
24On 1 October 2016, Jessica transferred $2,000 to you, believing she and Peter still owed money to you for the Queensland property. This money was received into your bank account on 3 October 2016 (Charge 32 - obtaining financial advantage by deception). Following this payment, Jessica and Peter believed they had only $3,000 remaining before they had repaid their debt to you.[3]
[3] Other amounts had been allegedly paid off the $188,000 ‘loan’ which were either not the subject of charges or were the subject of the directed acquittal (Charge 4).
25At some stage you told Jessica and Peter they were entitled to claim a free holiday to Fiji as part of a promotion for purchasing their house and land package. They told you they did not want the holiday, to which you replied you would arrange for an amount equivalent to the value of the holiday to be deducted from the purchase price.
26Sometime later, whilst Jessica and Peter were at your home, you told them debt collectors were demanding payment of $3,700 from you for the price of the holiday to Fiji, which they never took. You told the couple they had to pay you for it.
27On 3 October 2016, you sent Jessica a text message which read, ‘Hi cuz. Final payout is $7,900. This includes the $1,200 which was the interest I paid on the loan. Pete promised he would pay me’.
28Between 28 October 2016 and 22 December 2016, Jessica and Peter continued to transfer money to you. A total of $7,900 was paid by the couple to you during this period in the belief they now owed you a final amount of $7,900. These payments give rise to five charges of obtaining financial advantage by deception comprising:
1.$1,900 on 28 October 2016 (Charge 33).
2.$2,000 on 10 November 2016 (Charge 34).
3.$1,500 on 25 November 2016 (Charge 35).
4.$1,300 on 12 December 2016 (Charge 36).
5.$1,200 on 22 December 2016 (Charge 37).
29On 15 November 2016, Peter received an email from Andrew Chai of Mackay Property Investments, this time using a different Gmail email address. The email advised $388,000 was being held in trust for Jessica’s and Peter’s purchase of their investment property in Queensland and a further $94,500 will be payable upon settlement, which was anticipated to occur in August 2017. The letter also mentioned $3,000 would be deducted from the balance because the couple did not wish to take up the holiday to Fiji.
30Evidence regarding the origins of this email address confirmed it was created on 15 November 2016 and the phone number of the user was the same phone number registered to and used by you at that time.
31Expecting settlement to occur in August 2017, Jessica contacted you on several occasions in about mid-2017 for updates on the progress of the investment property. You advised her on at least one of those occasions the development had been delayed because of cyclones in the area.
32Eventually, you told the couple the developer had gone into liquidation, there was nothing that could be done and their entire funds were missing. You told the couple not to contact you again.
33On 27 August 2017, Jessica emailed Andrew Chai seeking an update on the development. She never received a response.
34Jessica and Peter engaged the services of Nevett Ford Lawyers to assist them in recovering their money from you. On 31 August 2017, a letter of demand was sent to you seeking the return of the monies provided to you by Jessica and Peter.
35On 8 September 2017, Nevett Ford Lawyers received a letter in response from Adams Maguire Sier Lawyers. The letter asserted Adams Maguire Sier Lawyers had received instructions from you that all monies received by you were repayments for various legitimate loans that had been provided to Jessica and Peter over time by your parents, through you. Two invoices were attached to the letter, which you had instructed were evidence of this, as well as allegedly being signed by Jessica and Peter. I accept no such invoices were ever signed by Jessica or Peter and they are fake invoices. However, there is no charge in relation to this conduct and you are not to be punished for it. The prosecution rely on it merely as part of the context surrounding the charged offences.
36In total, you received $372,400 from Jessica and Peter, and $10,000 from Antonina.
Investigation
37Jessica and Peter reported these matters to police in October 2017. Following a relatively lengthy and complex investigation, you were interviewed by police on 30 August 2018. You denied the offending.
Victim impact
38Victim impact statements (‘VIS’) prepared by Jessica[4] and Peter[5] were tendered at the plea hearing by the prosecutor.
[4] Exhibit (‘Ex’) P5.
[5] Ex P4.
39Jessica attended the plea hearing and read her VIS aloud to the Court. Jessica said she has suffered relentless emotional distress and heartache over your offending. She has found it hard to comprehend how someone she loved, trusted, looked up to, who was her best friend and her own flesh and blood could hurt her so profoundly.
40She said she feels numb, is in disbelief and is grieving the loss of the person she thought she knew you to be; a greatly loved and trusted close friend and relative. She has lost this family bond forever. Your offending has caused family conflict and there is now bad blood between her side of the family and your side of the family. Jessica is deeply saddened by knowing her father has to live the remainder of his life without speaking to his sister as a result of your offending.
41Jessica said, blood to blood, first cousin to first cousin, best friend to best friend, you looked into her eyes and lied to her face without flinching. She said your words are imprinted on her mind and are something she will never forget. She wholeheartedly believed what you were telling her and you reassured her your offending wasn’t a scam. You made her believe you had bent over backwards to help her and Peter. Jessica feels mad at herself for being so gullible.
42Jessica said she has cried countless tears, felt hopeless, hurt and betrayed. She cannot stop thinking how you could do this to them and why. She has been sick from the stress and mental anguish caused by your offending conduct and she now requires psychological help for her declining mental health. Without objection, she said she suffers from ‘anxiety’, has ‘trust issues’ and is now ‘hesitant and overly cautious’.
43Jessica feels as though her spirit has been ‘crushed’ and her life has been ‘turned upside down’. She described her happiness as ‘lost underneath all of the anger, sadness and hatred’ she now feels. She said you have ruined her life. She was once so happy and now she feels she must carry this heavy burden with her for the rest of her life.
44Jessica said you took two years of her ‘hard earned’ wages and she had been working night shifts and extra shifts, and she would go without, to make the payments to you.
45Jessica said your offending has left her with ‘a huge financial burden and loss’. She has lost a lot of money and with the increased costs of living, life has been ‘tough’ and ‘stressful’. She feels she is paying off a large loan with absolutely nothing to show for it.
46Moreover, the financial burden resulting from your offending has led to Jessica and Peter arguing about their financial situation and this has caused great strain on their marriage.
47As a result of your offending, Jessica does not trust anyone anymore. She finds herself over analysing and questioning everyone’s intentions. She feels if she can’t trust her own flesh and blood, then how can she trust anyone.
48Jessica does not want to speak to anyone at the moment and has become socially withdrawn and isolated because she does not know whom she can trust. She has stopped speaking to her friends because she does not know if she can trust them.
49Peter attended the plea hearing and his VIS was read aloud by the prosecutor. He has not been able to enjoy life like he used to. He has lost countless hours of sleep and when he finally wakes up, he finds himself in a state of panic, worrying about how he is going to keep the roof over his family’s heads. Peter writes his two young children have both suffered because he has been distracted and distant with worry. He worries constantly about how he is going to be able to afford the household bills, food, mortgage and the cost of his children’s educational and extracurricular activities.
50Peters mind is never at ease. He describes how you came into their house and lied endlessly about a house and land package that did not exist. He now doubts who he can trust when he attends family functions. Your offending has led him to become withdrawn and isolated.
51Peter cannot believe he trusted you. Due to your offending, he has had to take more sick leave and social leave than he has accrued in the last few years. He writes there have been endless times when he cannot concentrate at work.
52Peter writes he and Jessica borrowed $327,500 and they still have a high mortgage now because of your offending conduct. Peter writes they are paying high interest rates monthly to the banks and their budget is tighter now.
53Peter has been constantly preoccupied with racing thoughts and finds it difficult to engage in conversations with others as a result.
Offence seriousness
54Obtaining property by deception and obtaining financial advantage by deception are serious offences, as indicated by the maximum penalty of 10 years’ imprisonment for both offences. These type of offences of are often difficult to detect, lengthy to investigate, expensive to prosecute and, as is apposite in the present case, ‘most often devoid of excuse’.[6]
[6] R v Poyser (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 15 September 1988, Murphy, Gray, and Nathan JJ,) 4–5.
55Taken overall your offending conduct is grave. Your counsel conceded the offending is objectively serious. Over the course of approximately 2 years and 9 months you defrauded a total sum of $382,400 from family members in 35 separate dishonest transactions. The amount you defrauded is relatively substantial. At many stages in your nefarious course of conduct you could have ceased your dishonest actions, but you persisted in your insidious exploitation of your position of trust as a close friend and relative.
56It is clear you held a position of trust respecting all three victims, but particularly in Jessica’s case. In her words, she trusted and looked up to you. You were her best friend. You egregiously abused that trust when you engaged in substantial and sustained dishonest conduct, taking funds that had been entrusted to you by Antonina for the payment of expenses related to Jessica’s and Peter’s wedding and by Jessica and Peter for the purchase of an investment property. The appalling breach of trust involved in your offending conduct is a serious aggravating feature of your crimes.
57You engaged in a systematic and deliberate course of conduct that occurred over the course of nearly three years and involved repeated acts of dishonesty.[7] Your offending was premeditated, relatively sophisticated, well planned and executed.
[7] DPP v Bulfin [1998] 4 VR 114, 132 (Charles JA).
58Moreover, when the victims sought reassurance from you regarding the use of the funds, rather than desist from your offending, you sought to cover up your criminal conduct. The Crown case was that following ongoing representations made by you regarding the house and land package you provided false emails to the victims, purportedly from Andrew Chai of Mackay Investments Group, in an attempt to legitimise your offending and put your victims’ minds at ease.
59As I said earlier, I accept this is the case. I am satisfied beyond reasonable doubt the Andrew Chai email addresses were created by you in order to conceal and further advance your criminal conduct.
60You assisted Jessica and Peter to apply for a further loan for $200,000 in June 2016. Once the loan was approved and the funds deposited into Peter’s account, you drove him to the NAB Sunshine branch, where he arranged for a bank cheque to be issued to Luxury Home Designs Pty Ltd in the amount of $200,000. I accept the prosecutor’s submission you knew the victims were not materially wealthy and they would need to become indebted in order to make this payment to you. In doing so, they were clearly relying upon and trusting the representations you made to them regarding the use to be made of these funds.
61Your callous behaviour has clearly had a markedly deleterious effect on the victims, who have never recovered the funds you obtained from them, and have suffered considerable anxiety and financial strain as a result. What became of the funds you defrauded from them has never been revealed. One can only surmise you used the money to support your lifestyle, although I accept you did not live an extravagant or grandiose lifestyle.
62Overall, I consider these to be serious examples of obtaining property by deception and obtaining financial advantage by deception. Moreover, I assess your moral culpability as being very high. Clearly, general deterrence, just punishment and denunciation are important sentencing principles in this case. In light of your relevant prior criminal history and your lack of insight and remorse, I consider specific deterrence and protection of the community must also be given significant weight.
Personal circumstances
63You are 50 years of age and were born in Melbourne. You have two elderly parents and one younger brother.
64You parents were born in Italy. They met in Melbourne and have been married for over 50 years. Your father worked as a concreter and your mother stayed at home looking after the family. Your father worked long hours. You grew up in the Reservoir area and enjoyed a good childhood. You have always been, and remain, very close to your mother.
65You attended one primary school and two high schools. You experienced significant bullying throughout high school. You completed Year 12 but did not achieve the VCE results you expected. You attribute this to the impact of bullying.
66On 27 April 1993, you appeared in the Preston Magistrates’ Court on 133 counts of obtaining property by deception. I was not informed regarding the circumstances of this offending. On those charges where you were, without conviction, released on a community based order for 18 months to perform 80 hours of unpaid community work. You were ordered to pay $4945.76 by way of compensation. The status of this prior matter is discussed below,[8] but for present purposes I refer to it merely as forming part of the narrative of your personal circumstances.
[8] At [92].
67After finishing school, you moved to the Gold Coast where you worked as a waitress for about five years, and then in a sales position with Optus for almost another five years.
68You returned home to Melbourne to live with your parents at age 28, because their health was deteriorating. You completed a 12-month full-time diploma in beauty therapy, In 2003, aged 30, you opened a beauty salon in Brighton called ‘Rejuvenation Spa and Retreat’, employing six staff. You were the owner and operator of this business until it was sold in 2008. You worked seven days a week for the first year, before cutting back to more regular full-time hours.
69After selling the beauty salon, you worked in property development, starting your own business, Luxury Home Designs Pty Ltd, which involved interior decorating for new houses. It lasted several years. After the sale of this business, you worked for Optimum Wealth Solutions and in other roles, where you report having issues with not being paid. There were times you were in receipt of Centrelink benefits.
70From about 2012 until 2016, you operated a business buying and selling ‘Chanel’ handbags. Your involvement in that business led to you being charged with a number of dishonesty offence arising from the handbags not being genuine Chanel products. These offences were dealt with during court appearances in 2015, 2017 and 2019 which are detailed below.[9]
[9] At [93]–[95].
71Since 2016, and until you were remanded in custody by me for the present offences on 16 August 2024, you have been in receipt of Centrelink payments. In the past, there have been some occasions where you struggled financially. This included when you were assisting to pay your parent’s mortgage at a time of high interest rates. Subsequently, you had difficulty selling a property you owned which caused problems for you repaying debts.
72You have no children. You were in a relationship in your mid-twenties. Your then partner attempted to sexually offend against you and, following this, you have had no significant relationships.
73So far as your physical health is concerned, your counsel advised me you have gallstones which will require removal. This was a concern before the trial commenced but you delayed treatment so as to avoid interfering with the court process. You have attempted to seek medical treatment for this while on remand but your condition remains untreated. You have ongoing back pain which you believe is the result of a childhood bike accident. You have never had any illicit drug or alcohol related problems.
74You have experienced mental health issues for some time, stemming from the bullying you experienced during your schooling. You describe yourself as ‘a planner’, and struggle to cope when your plans do not eventuate. You planned to attend university after high school, however as a result of bullying and a reduction in your academic results, you moved to the Gold Coast to work as a waitress, which was not the career you intended to follow in life.
Mental health
75You received treatment from a psychologist, Genevieve Abbott, from February 2022 until you were remanded in custody. At the plea hearing, your counsel tendered a letter from Ms Abbott dated 31 October 2023.[10]
[10] Ex D4.
76You initiated treatment with Ms Abbott after you began experiencing severe symptoms of post-traumatic stress disorder (‘PTSD’) in the context of the current court proceedings.
77Your symptoms included thoughts of self-harm and suicide, difficulty leaving the house and social withdrawal which made your daily functioning difficult. Ms Abbott writes you also experience insomnia and night terrors, panic attacks and increased distress and panic in situations where you may come into contact with people who know about your offending. You also exhibit avoidance of any reminders of your experiences, memory impairment, negative thoughts about yourself and intense emotional distress, lowered self-esteem, difficulty feeling any positive emotions, loss of enjoyment in activities previously enjoyed, constant hypervigilance and difficulty concentrating and focusing.
78These symptoms were exacerbated when your name and details of your offending were published in the media, leading to your friends and family as well as the general public becoming aware of your situation. Ms Abbott opines this had a significant impact on your social relationships.
79You previously had a close relationship with both your parents and brother, as well as your extended family and local community. You reported to Ms Abbott this has now changed, as you socially withdrew and your social supports are now very limited. I observed there was no one present supporting you in court during the trial or the plea hearing.
80Your symptoms caused you great difficult in attending to the basic necessities of life, including cooking and eating, shopping, exercising and spending any time outdoors. You experienced difficulty dealing with household bills, engaging with other people, maintaining your health, attending appointments and working in any capacity.
81Ms Abbott opines you present with most of the symptoms of PTSD. However, you do not meet one criteria for a formal diagnosis. Nonetheless, Ms Abbott opines this does not detract from the significance of the symptoms you experience, which are severe and debilitating and prevent you from functioning on a daily basis.
82During your treatment, Ms Abbott assessed you at several stages using the PTSD symptom checklist for DSM-5 (PCL-5). You scored at the extreme range in at least 15 of the 20 symptoms on the checklist. You also completed the depression anxiety and stress scale and scored in the severe to extremely severe range in all three domains.
83Your psychological treatment with Ms Abbott included cognitive processing therapy, trauma focused cognitive behaviour therapy and supportive counselling. Ms Abbott observes you were engaged throughout the treatment sessions, despite sometimes struggling to attend owing to your symptoms, and you implemented many of the strategies and interventions that were discussed during treatment.
84Owing to the nature of your symptoms, and the fact your stressors are constantly present in your life, you made very limited progress in your treatment beyond minimising your risk of self-harm. Ms Abbott writes your symptoms remained stable, and you struggled to regain much of your previous functioning because of this.
85Ms Abbott opines: ‘It is reasonable to suggest that Angela’s mental health and wellbeing would probably deteriorate if she was imprisoned for any length of time.’[11] Ms Abbott further opines it is also likely, considering your history of increased risk when exposed to related stressors, there would be a significant increase to your risk of self-harm and an increase in the severity of your symptoms if you were imprisoned. Ms Abbott considers imprisonment may also reduce the likelihood of you regaining your previous level of daily functioning and would adversely impact on your long term prognosis.
[11] My emphasis.
86In her written submissions, your counsel notes you have never been prescribed any psychotropic medications nor have you received any formal diagnosis related to your mental health.
Application of Verdins principles
87Your counsel submitted Verdins principles 5 and 6 are engaged in your case.[12] She based this submission on Ms Abbott’s opinions.
[12] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
88On balance, I accept Verdins principle 5 is engaged to some extent in your case because the state of your mental health may mean the sentence I impose on you will weigh more heavily on you than it would on a person in normal mental health. However, it appears to me many of your present symptoms are reactive to your current predicament and are likely to resolve, or at least significantly lessen, once the current court processes are concluded and you are aware of the final outcome of these proceedings.
89I am not convinced Verdins principle 6 is engaged in your case. For this consideration ‘to mitigate punishment’ you are required to demonstrate, on the balance of probabilities, there is ‘a serious risk of imprisonment having a significantly adverse effect on [your] mental health’.[13] To the extent Ms Abbott expresses a relevant opinion, it takes the form of a mere ‘reasonable suggestion’ rather than a firm proposition that your mental health would probably deteriorate. Moreover, the degree of probability is undefined. To my mind, a reasonable probability that an event might occur is not equivalent to a serious risk of the event occurring. The Victorian Court of Appeal has repeatedly emphasised that ‘a rigorous evaluation of the evidence’ is required in relation to the application of Verdin’s principles.[14]
[13] Verdins 276 [32(6)] (emphasis added).
[14] Brown v The Queen (2020) 62 VR 491, 507–08 [60]–[62]. (Maxwell P, Niall JA, T Forrest JA, Emerton JA, Osborn JA).
90Moreover, since you have not received treatment from Ms Abbott since you were remanded in custody, and Ms Abbott opines your symptoms present in the context of publicity surrounding your case, I do not accept her opinion regarding the likelihood of your mental health deteriorating and the severity of your symptoms worsening in the event of your imprisonment. You symptoms may increase as a consequence of publicity surrounding the jury’s verdicts and the sentences I impose on you, but this is a necessary consequence of your offending conduct and, in any event, will very likely diminish as time passes.
Prior criminal history and subsequent offences
91You have a relevant prior criminal history which includes a large number of convictions for dishonesty related offences. As I mentioned earlier,[15] on 27 April 1993, you appeared in the Preston Magistrates’ Court on 133 charges of obtaining property by deception and you were sentenced to a community correction order (‘CCO’), without conviction, for a period of 12 months to perform 80 hours of unpaid community work. You were also ordered to pay $4945.76 by way of compensation.
[15] Above [66].
92While these are spent ‘convictions’,[16] the parties are agreed I may have regard to them for the purposes of sentencing you on the present charges.[17] Nonetheless, for the reasons submitted by your counsel,[18] I will give these prior matters little weight, although, they do represent an early start (aged 17 or 18 years) to your propensity for committing deception offences, which it appears has continued until September 2018 (aged 44 years).
[16] See Spent Convictions Act 2021 ss 6, 7, 9 and 10.
[17] See ‘Crown’s Submissions on Relevance of Prior and Subsequent Offending and ‘Spent’ Convictions’ dated 27 February 2023 (Ex P6) [2]–[4] & [5]; ‘Addendum Plea Submissions’ dated 29 February 2023 [1].
[18] ‘Addendum Plea Submissions’ [4]–[5].
93On 1 August 2012, you were convicted and sentenced in the Heidelberg Magistrates’ Court on one charge of attempting to obtain property by deception and one charge of make false report to police and sentenced to a CCO for 12 months to perform 120 hours of unpaid community work. A treatment and rehabilitation condition requiring you to undergo mental health assessment and treatment was part of the CCO.
94On 27 February 2015, you were convicted in the Melbourne Magistrates’ Court on one charge of possessing a false document and one charge of dealing with property suspected of being proceeds of crime. You were sentenced to an aggregate fine of $500.00.
95You also have a number of subsequent offences. On 26 September 2017, you appeared in the Heidelberg Magistrates’ Court on seven charges of obtaining property by deception. You were convicted and sentenced to a CCO for 12 months to perform 100 hours of unpaid community work and you were ordered to pay compensation totalling $26,563. Your counsel told me this offending occurred between September 2015 and February 2016. Clearly, this offending must have occurred during or around the period of the offending constituted by Charges 14 to 23 on the present indictment.
96On 22 January 2019, you appeared in the Heidelberg Magistrates’ Court on three charges of obtaining property by deception and one charge of negligently dealing with proceeds of crime. You were convicted and sentenced to a CCO for 18 months to perform 150 hours of unpaid community work and to be under the supervision of a community corrections officer. Treatment and rehabilitation conditions requiring you to undergo mental health assessment and treatment and engage in offender behaviour programs as directed were part of the CCO.
97Your counsel advised me this offending occurred between September 2017 and September 2018 and therefore during the operational period of the CCO you received for similar offending on 26 September 2017.
98While subsequent offences cannot be taken into account in the same way as prior criminal history can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are relevant also to my assessment of your prospects of rehabilitation.[19]
[19] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–11 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77–78] (Santamaria JA); R v Pham [2003] VSCA 207 [12] (Vincent JA, Winneke P and Eames JA agreeing); Wilson v The Queen [2022] VSCA 2 [20] (Priest and Niall JJA).
99As the majority of the High Court in Veen v The Queen (No 2)[20] observed:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.[21]
[20] (1988) 164 CLR 465.
[21] Ibid 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
100Your prior criminal history demonstrates you have manifested in your commission of the present offences ‘a continuing attitude of disobedience of the law’, which has continued after the period of the present offences. Accordingly, it is necessary in your case for me to give significant weight to specific deterrence and protection of the community.
Mitigating circumstances
101There is little that can be put on your behalf in mitigation of penalty. You stood your trial, which was your right, but it means you can receive no discount for pleading guilty. As your counsel fairly advised me, you continue to deny the offending. Accordingly, you lack insight into the reasons for your offending conduct and have demonstrated no remorse.
102The effect of delay is a mitigating circumstance in your case. While investigations into financial fraud are often protracted, nonetheless there has been a significant delay between the commission of the present offences, which occurred in between March 2014 and December 2016, the victims’ report to police in October 2017, your police interview on 30 August 2018, the filing of charges in December 2019, and the trial which proceeded in late July and August 2023. There has been further unavoidable delay, not occasioned by you, between the verdict in August 2023, the plea hearing in November 2023 and now sentence in March 2024.
103As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[22]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[23]
[22] (2013) 40 VR 436.
[23] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
104There is some evidence before me regarding the efforts you have made towards your rehabilitation during this period of delay. You were engaging with Ms Abbott for psychological treatment from February 2022 until your remand in August 2023, for which you are to be commended. However, it appears these sessions were mostly focused on assisting you to cope with the anxiety and stress occasioned by your current predicament and not with addressing any personality disorders or mental health conditions related to your offending conduct, which you continue to deny.
105Your counsel submitted you have good prospects of rehabilitation, given you have successfully completed the requirements of all three CCOs imposed on you, including the rehabilitative components of the CCO imposed in 2019. Your counsel also submitted your most recent conviction in January 2019 related to offending which occurred in September 2018 and since then you have not committed any further offences.
106While it is to your credit you have ‘successfully completed’ the three CCOs you have received in the past,[24] I note you received a CCO in 2012 which included a mental health assessment and treatment condition which was, apparently, ineffective in reforming you. Moreover, in the past you have committed offences while being subject to a CCO, although it appears you have never faced contravention proceedings. Most, if not all, of the offences for which you were dealt with in January 2019 were committed during the operational period of the CCO you received in September 2017.
[24] See email from Ms Alannah Easton, Manager Court Practice, Ringwood Department of Justice and Community Safety to Ms Jade Bain, paralegal, Paul Vale Criminal Law dated 23 October 2023 (Ex D5).
107However, of particular concern is your subsequent convictions for dishonesty related offences. While it is the case you have not reoffended since September 2018, this is what the law expects from all members of this community and, while it is not irrelevant to my assessment of your prospects of rehabilitation, it can be given little weight.
108In light of your overall criminal history and the protracted and serious nature of the present offending, together with your total lack of insight and remorse, I can only adopt a guarded approach to your prospects for rehabilitation. Much will depend upon your ability to resist the urge to commit further dishonesty offences if a suitable situation presents itself to you in the future.
109So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of sentences of imprisonment hanging over your head for over five years. Undoubtedly, as the psychological evidence from Ms Abbott demonstrates, this has caused you significant anxiety and stress. I take the punitive effects of delay on you into account in your favour.
Family hardship
110Your counsel submitted the hardship your parents have suffered and will continue to suffer as a result of your incarceration is such that there are exceptional circumstances to warrant a reduction in your sentence on the basis of family hardship. The prosecutor submitted the exceptional circumstances test is not met in this case.
111Your counsel relied on two letters tendered at the plea hearing: (1) a letter from Dr Rafiq A Memon, a registered medical practitioner, dated 19 September 2023,[25] relating to your father, Mr Adelmo Liberatore, and mother, Ms Maria Liberatore; and (2) a letter from Ms Pat Favorito, a psychotherapist and holistic energy practitioner, dated 21 October 2023,[26] relating to your mother. Neither of your parents gave evidence at the plea hearing.
[25] Ex D3.
[26] Ex D2.
112Dr Memon writes, your father suffers from numerous medical conditions, including early onset dementia. He writes your father accidently burnt both his legs while he was mowing the lawn and was hospitalised as a result. Dr Memon writes your mother suffers from depression and anxiety. He opines both of your parents have developed lack of concentration, motivation and depressed mood, panic attacks, feeling overwhelmed and poor coping resources. Dr Memon further opines both of your parents are sick and not able to cope with your incarceration.
113Ms Favorito writes, your mother has attended two counselling appointments with her since 24 August 2023. She opines your mother is exhibiting symptoms of severe stress, upset and emotional collapse as a result of your conviction. Ms Favorito understands your mother’s general practitioner has prescribed anti-depressants to enable your mother to cope with the current situation.
114Ms Favorito writes, your parents rely on you heavily for practical and emotional support owing to their age and limited English. She writes your mother has indicated she and your father receive little to no support from anyone at present, including from your brother, making life very difficult for them to navigate. Ms Favorito also writes your mother has been unable to visit you while you have been in custody.
115In Markovic v The Queen (‘Markovic)’,[27] the Victorian Court of Appeal affirmed that third party family hardship can only be taken into account as a sentencing consideration where exceptional circumstances render the plea for mercy irresistible. [28] The Court summarised the principles in respect of family hardship as follows:[29]
1.Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.
2.Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3.Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not exceptional.
4.The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
[27] (2010) 30 VR 589 (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) (‘Markovic’).
[28] Ibid 591 [5].
[29] Ibid.
116The Court observed that: first, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants; secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime; thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust. For these reasons, it is only in the exceptional case, where the plea of mercy is seen as irresistible, that family hardship can be taken into account.[30]
[30] Ibid 591–592 [6]–[7].
117A finding of exceptional family hardship is a question of judgement, based on the available facts. It is not itself a finding of fact.[31] In my view, the effect of your imprisonment on your father and/or mother is not so exceptional as to attract a sentencing discount.
[31] Curtis v The Queen [2022] VSCA 5 [22] (Priest JA and Niall JA).
118Moreover, in order to establish exceptional circumstances, there must be cogent evidence that establishes the situation is so highly exceptional it would be, in effect, inhuman to imprison the offender.[32] The letters tendered by your counsel outlining your mother’s and father’s health issues are very brief. Apart from Ms Favorito’s statement your parents rely on you for practical and emotional support, there is no evidence to show the extent of the care your parents require or the level of care you had been providing to them prior to your remand in custody. There is virtually no evidence regarding whether any other family members, friends or neighbours can assist with your parent’s care. I note in this regard no evidence was given by your mother, your father, your brother, or, indeed, by you.
[32] R v Esposito [2009] VSCA 277 [14] (Nettle JA, Buchanan JA agreeing).
119I do accept your parents suffer from the conditions referred to in the two letters, although the exact nature and extent of those conditions and the suffering they cause is unclear. I also accept you will experience anguish regarding the health of your parents and your inability to care for and support them, and this will add to the burden of imprisonment for you. In Markovic, the Court held the effect on the offender of hardship caused to family members by imprisonment is a separate matter.
An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.[33]
[33] Markovic 595 [20].
120Accordingly, you will receive lesser sentences than I would otherwise have imposed on you by reason of imprisonment being more burdensome on you because of your anguish at being unable to care for your father and mother whilst you are serving your sentence.
Application of sentencing principles
121I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[34] and DPP (Vic) v Dalgliesh (a Pseudonym)[35] and the Victorian Court of Appeal decisions in DPP v Zhuang[36] and DPP (Cth) v Thomas.[37] In particular, I have had regard to the comparable cases referred to me by the prosecutor, and your counsel.
[34] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[35] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[36] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[37] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
122While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[38]
[38] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
123Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
124The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors including the seriousness of the offences, your culpability for them and your personal circumstances.
125I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
126Clearly denunciation, general deterrence and just punishment must be given considerable weight in sentencing you for these offences. Moreover, I consider significant weight also needs to be given to specific deterrence and protection of the community, given the nature of your offending conduct, your high moral culpability, your lack of remorse, your prior criminal history and subsequent offending. For the reasons previously given, I assess your prospects of rehabilitation as being guarded.
127None of the present charges are part of the standard sentencing scheme, nor are they category 1 or category 2 offences as defined by the Sentencing Act 1991.
128You counsel submitted a combination sentence involving your further incarceration together with a CCO was the appropriate disposition. The prosecutor submitted the only appropriate sentence was the imposition of a term of imprisonment with a non-parole period.
129The parsimony principle requires I not impose sentences that involve your confinement unless I consider the purpose or purposes for which these sentences are imposed cannot be achieved by sentences that do not involve your confinement.[39]
[39] See Sentencing Act (‘SA’) s 5(4).
130I accept totality is an important consideration in sentencing you given the general circumstances common to all offences. I must also avoid imposing a crushing sentence on you. These considerations will be particularly reflected in my orders for cumulation.
131Ultimately, I am of the opinion sentences of imprisonment with a non-parole period are the only dispositions appropriate to achieve the purposes for which these sentences are imposed.[40]
[40] Ibid.
132In this case, I consider it is appropriate to impose an aggregate sentence of imprisonment on the following charges — Charges 6 to 30 (inclusive) and Charges 32 to 37 (inclusive).
133I must announce my reasons for adopting this course.[41] They are as follows: these offences are founded on the same facts or form part of a series of offences of the same or a similar character;[42] namely, obtaining financial advantages by deception, committed against the same victims, involving a continuing operative deception and, in effect, forming a continuing course of criminal conduct committed over a period of nearly two years. Had you entered a plea of guilty, these charges could have formed the basis of a single rolled-up charge.[43] Moreover, the 31 offences are of a comparable level of seriousness (the amounts obtained ranging from $500 to $2,000) and I consider ‘an aggregate sentence is a “more flexible and pragmatic” way of “reflecting all of [your] conduct”’[44] in relation to these charges.
[41] SA s 9(3)(a).
[42] See SA s 9(1).
[43] See R v Jones [2004] VSCA 68 [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29]–[30] (Maxwell P and Croucher AJA; Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA); R v Richard [2011] NSWSC 866 [102]–[109] (Garling J).
[44] DPP v Frewstal Pty Ltd (2015) 47 VR 660, 670 [44] (Maxwell P); Cokacar v The Queen [2019] VSCA 178 [29]–[33] (Maxwell P, Priest JA agreeing); Stevens v The Queen [2020] VSCA 170 [54]–[56] (Emerton and Weinberg JJA); Sinclair v The Queen [2021] VSCA 144 [20]–[25] (Maxwell P and Kaye JA).
134I must also announce the effect of the proposed aggregate sentence,[45] which is that you will receive one sentence of imprisonment for all 31 offences, however, that sentence will be no longer than the effective total of the individual sentences I would have otherwise imposed on you for those offences.
[45] SA s 9(3)(b).
Ms Liberatore, I sentence you as follows:
On Charge 2, obtaining property by deception from Ms Antonina Lacivita, you are convicted and sentenced to imprisonment for four months.
On Charge 3, obtaining property by deception from Ms Antonina Lacivita, you are convicted and sentenced to imprisonment for four months.
On Charge 5, obtaining financial advantage by deception from Ms Jessica Lacivita and Mr Peter Koukos (the $127,500 bank cheque), you are convicted and sentenced to imprisonment for two years.
On Charges 6 to 30 (inclusive) and Charges 32 to 37 (inclusive), obtain financial advantage by deception from Ms Jessica Lacivita and Mr Peter Koukos in an amount totalling $44,900 you are convicted and sentenced to an aggregate sentence of imprisonment for one year and six months.
On Charge 31, obtaining financial advantage by deception from Ms Jessica Lacivita and Mr Peter Koukos (the $200,000 bank cheque), you are convicted and sentenced to imprisonment for three years.
I order three months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, one year of the sentence imposed on Charge 5 and nine months of the aggregate sentence imposed on Charges 6 to 30 (inclusive) and Charges 32 to 37 (inclusive) be served cumulatively on the sentence imposed on Charge 31 and on each other. This makes a total effective sentence of imprisonment for five years and three months.
I order you serve a minimum of three years’ and eight months’ imprisonment before becoming eligible for parole.
I declare 204 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
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