Director of Public Prosecutions v Marchese

[2015] VCC 759

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00602

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM MARCHESE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2015
DATE OF SENTENCE:	5 June 2015
CASE MAY BE CITED AS:	DPP v Marchese
MEDIUM NEUTRAL CITATION:	[2015] VCC 759

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes	Office of Public Prosecutions
For the Accused	Mr N. Howard	Ann Valos Criminal Law

HIS HONOUR:

1Sam Marchese, you have pleaded guilty to one charge of attempting to obtain a financial advantage. 

2You are 51 years of age.

3The only prior convictions you have are of some antiquity, indeed from what I can gather, in your late teens and early 20s.  They are of no significance in this sentencing process.

4You have pleaded guilty and must get the utilitarian benefit of that.  I also note in these circumstances because of your personal position, I am prepared to accept that there is appropriate remorse, so far as this is concerned, as exemplified by the plea.

5I also note from the outset that there has now been a delay of four years which is nobody's fault but is a very significant factor.  You were 47 years of age at the time of the offending.

6The situation is that you were given a bank cheque, or what purported to be a bank cheque by a friend, Mr Valu.  It was in the sum of $500,000.  You went to one bank who said they would not cash it because it was not their cheque.  You took it to another bank who told you that it was fraudulent.  How deeply you understood that concept would be a matter for debate, but I have no doubt that it would have been sufficient for a jury to find that you did have the appropriate dishonesty in terms of what happened next.

7You then, in circumstances of dealing with a financial adviser, endeavoured, having received that information, to cash that cheque at the Bank of Cyprus.  Police were called and you were interviewed.  You acknowledged that you were aware that it was "a shit cheque."

8You have ultimately pleaded guilty to attempting to obtain $500,000.  You are illiterate and I accept that what was wrong with that cheque may well not have been readily apparent to you.  It is a situation where it was doomed to failure.  The cheque could never, in my view from what I am told, have been honoured and the criminality involved is very simplistic indeed.

9You have been examined by a neuropsychologist who has formed the view that you have a full scale IQ of 65 which puts you in the mildly intellectually disabled category.  Insofar as that is concerned, I am well aware of recent High Court authority which says that the word "mild" does not quite mean that.  That puts you at a very distinct disadvantage.

10In my view, having had your background described to me of taking over a family farm, you have children working with you on that farm, you have been a very valued and productive member of the community for a long period of time. 

11You do not have good health in respect of your legs and I take into account a report of Dr Collins who said that a custodial sentence for you would cause real problems with health. 

12I take into account the report of the psychologist, Mr Jackson, who points out a number of matters about you, but as was indicated the most important part being that I accept you had difficulty in dealing with the intellectual aspects of all this.

13There is a reference from local community about your involvement in scouts.  I have no doubt that you have been a very worthwhile member, as I think I have indicated, of the community.  One of the references that has been tendered on your behalf is from a gentleman who has known you for a long time who says that if he was in strife essentially he would want you in his corner.  I have got no doubt that is the case, Mr Marchese.

14Having discussed the matter with counsel, the prospects of your rehabilitation are excellent, if indeed you even need any and the risk of you re-offending is very low indeed.

15Bearing in mind the delay and the effect to be given to the intellectual disability, it is a very difficult sentencing process on one view of it.  It seems to me that there is no way known that an active custodial sentence could be imposed.  On the other hand, a community corrections order is neither needed and would be a waste of resources, and yet because of the amount involved an adjourned undertaking would be clearly insufficient.  Very sensibly, if I may say, the Crown have agreed that in this situation a wholly suspended sentence is the appropriate disposition.

16Pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  Having made that order, I must advise you that should you refuse to provide such a sample to police, they may use reasonable force to take it from you and Mr Howard will explain to you what needs to be done. 

17Insofar as the offending is concerned, as I say I have taken into account the reports on your behalf and the submissions made and if ever a man is entitled to call in aid his previous good conduct and his worth to the community, you are.  However, it was a large amount of money and in all the circumstances I think the appropriate sentence is that you be sentenced to be imprisoned for a period of nine months, that sentence to be wholly suspended for a period of 12 months, because I consider it to be in the interests of justice to do so.

18MS COOMBES:  As Your Honour pleases.  In relation to 6AAA.

19HIS HONOUR:  What is ‑ ‑ ‑

20MS COOMBES:  It is about the plea, given that there is a term, even though it is.

21HIS HONOUR:  But for the plea I would have given him 12 months wholly suspended, but.

22MS COOMBES:  As long as Your Honour indicates that, that is ‑ ‑ ‑

23HIS HONOUR:  I would not have locked him up no matter what happened.  The jury might have let him go.  No, I hear what you are saying.  In a scenario such as this, this is a significant plea where he feels he has been had, so I will say 15 months, so wholly suspended but for the plea of guilty.  Can I say that?

24MS COOMBES:  Yes, so 15 months to serve?

25HIS HONOUR:  No, wholly suspended.

26MS COOMBES:  Yes, 15 months wholly suspended for how long, Your Honour?

27HIS HONOUR:  Two years.

28MS COOMBES:  Yes.

29HIS HONOUR:  After anxious consideration.

30MS COOMBES:  Yes, Your Honour.

31

HIS HONOUR:  Thanks.  Yes, thanks for that Ms Coombes.  Thanks,

Mr Howard. 

32MR HOWARD:  As Your Honour pleases.

33MS COOMBES:  As Your Honour pleases.

34HIS HONOUR:  Yes, good luck, Mr Marchese.

35ACCUSED:  Thank you very much.

36(Section 464ZF order signed and acknowledged.)

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