Director of Public Prosecutions v Terzini 2
[2017] VCC 1826
•18 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SANDRO TERZINI |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2017 | |
DATE OF SENTENCE: | 18 December 2017 | |
CASE MAY BE CITED AS: | DPP v Terzini 2 | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1826 | |
REASONS FOR SENTENCE
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Subject: Theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Manning | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr S. Tovey | Victoria Legal Aid |
1 You, Sandro Terzini, have pleaded guilty to one charge of theft. The maximum penalty for this offence is ten years' imprisonment.
Background
2 You were the owner of Terzini Motore Aust Pty Ltd (Terzini Motore), a company in Brighton that restored, repaired and traded exotic cars. A liquidator has since been appointed and Terzini Motore no longer trades.
3 The victim of the offending is Simon Hardwidge who was 60 years old at the time of the offending. You and Hardwidge have known each other for approximately 20 years. You had undertaken repairs and restorations on vehicles owned by Hardwidge. You also stored Hardwidge’s vehicles at Terzini Motore premises.
1970 Ferrari Daytona Coupe
4 On or about 7 January 2008, Hardwidge purchased a 1970 Ferrari Daytona Coupe (the Daytona) from a business in the United Kingdom for £150,000. Hardwidge purchased the vehicle through his private investment company. The vehicle arrived in Australia in April 2008 and at about that time, Hardwidge arranged with you for the vehicle to be securely stored at Terzini Motore premises in Brighton.
5 Hardwidge contacted you in November 2012 and instructed you to find potential purchasers for the Daytona as he was considering selling the vehicle. The instructions specifically required you to introduce prospective purchasers to Hardwidge for Hardwidge to negotiate a sale. At your request, Hardwidge confirmed his instructions to you by an email dated 16 November 2012.
Offending
6 In December 2012, you advised one of your contacts, Mark Jansen (Jansen), about the possible sale of the Daytona by Hardwidge. By September 2013, Jansen began fielding several enquiry about the vehicle.
7 In October 2013, Jansen had identified an overseas purchaser interested in the Daytona for $450,000. Further negotiations took place between you and Jansen, and eventually Jansen dealt directly with Hardwidge.
8 At around the time negotiations had commenced between you and Jansen, you also engaged in separate negotiations with George Nakas (Nakas), the director of Dutton Garage Wholesale Pty Ltd (Dutton Garage) in South Yarra. Dutton Garage owns the business named Melbourne Prestige. Nakas said that you made him aware that the Daytona was owned by Hardwidge and that you had authority to sell the vehicle on Hardwidge’s behalf. You did not inform Hardwidge of the negotiations with Nakas at any stage, and Hardwidge was not aware of them.
9 You sent text messages to Hardwidge on Wednesday 6 November 2013, indicating that someone had expressed an interest in the Daytona and that you needed to speak with Hardwidge. Hardwidge replied, inviting you to call him.
10 The following day, on Thursday 7 November 2013, you sent Hardwidge a lengthy text message detailing the status of negotiations with Jansen. The message did not refer to Nakas or Dutton Garage. It included:
…I have said to [JANSEN] two things you were away therefore I had no clear instructions re sale of car and that also we would prefer the car to stay down under! I have two clients which will buy the Daytona for even more money!...Feel free to call me but do expect a call from [JANSEN]…just an idea? Why don’t you invoice Terzini Motore for the Daytona then I can deal with all that crap? Let me know your thoughts. Sandro.
11 On or about Thursday 7 November 2013, you reached an agreement with Nakas that Dutton Garage would purchase the Daytona for $450,000. You said that you would confirm with Hardwidge that the sale could proceed.
12 At about that time, you prepared a tax invoice dated 6 November 2013 on Terzini Motore letterhead and provided it to Nakas. On 7 November 2013, Nakas provided a cheque payable to Terzini Motore in the amount of $450,000. Written on the tax invoice was, “I, Sandro Terzini, am holding a cheque, the sum of $450,000 being payment in full for this Ferrari 365GTB/4 Daytona currently owned by Simon Hardwidge, on which we are waiting on his approval on transaction to proceed with sale.” You did not contact Hardwidge about the invoice or the cheque.
13 By Monday 11 November 2013, Hardwidge informed Jansen that he still had not decided whether he would sell the car. On Tuesday 12 November 2013, Hardwidge contacted Jansen and rejected the offer. He also telephoned you to convey this and notified you that he had decided to keep the car, that the email from 16 November 2012 was revoked and that the Daytona was no longer for sale. This was the last time you and Hardwidge spoke on the phone.
14 On Tuesday 3 December 2013, you advised Nakas that the sale could proceed. Settlement occurred that day, and the Daytona was delivered to Dutton Garage. The sum of $450,000 was deposited into your business account on 5 December 2013, along with a $10,000 commission. On 10 December 2013, $400,000 was transferred from your business account to your personal account.
15 Hardwidge did not know that the Daytona had been sold and continued to pay insurance premiums and include it in his financial records. He first discovered the previous sale when he spoke with a friend in April 2015.
16 On 29 April 2015, Hardwidge sent you a message stating:
Sandro, I have been told my Daytona has been sold some time ago. I hope this is untrue. You told me by email a couple of weeks ago that I could pick it up. So the best way to stop this story from getting really ugly is to allow Shane to collect it. I very strongly advise you to hand it over to Shane without delay, Simon Hardwidge.
17 The Daytona has since changed hands a further four times. In November 2014, it was sold to a purchaser in the United Kingdom, where it remains. It was the subject of civil proceedings issued by Hardwidge. Those proceedings have been discontinued.
18 On Thursday 19 November 2015, you attended the Bayside Police Station by appointment. You participated in a recorded interview with police, providing partial no comment responses. You then made several statements to the police and attempted to legitimise your conduct by saying that Hardwidge had okayed the sale to Dutton Garage, and stating that you had transferred the sum of $275,000 into Hardwidge’s partner’s account on Hardwidge’s instructions. You said that the balance of the funds you received from Dutton Garage were used against the labour you performed or were to perform on Hardwidge’s other vehicles.
19
The impact of your crime upon Hardwidge has been substantial. I accept Hardwidge’s evidence that the financial loss that the crime has inflicted on him has caused serious stress and ongoing bouts of depression.
20 The facts in this case are very serious. Your behaviour was dishonest, selfish and manipulative. The value of the vehicle was significant. There were a number of steps to the offending which included the agreement, the preparation of the invoice, the receipt of the cheque, the confirmation of instructions and the handing over of the vehicle. The aggravating aspects include the gross breach of trust involved. You had been acquainted with Hardwidge for 20 years and a trusted friend for at least ten of those years. You had agreed to store the vehicles owned by Hardwidge at Terzini Motore premises. Once the theft was complete, it was not discovered by the victim until April 2015. Your counsel conceded that the offending was serious given that it involves a breach of trust and an asset valued at $450,000.
21 As has been pointed out by your counsel, there are however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to these charges. You pleaded guilty at the committal hearing at the Melbourne Magistrates’ Court on 26 June 2017, prior to any witness giving evidence.
22 I have been told something of your personal history and circumstances. You were born on 28 April 1969 and are 48 years old. At the time of the offence, you were 44 years old. Your counsel submitted that you were unknown to the criminal law until the age of 44.
23 You were born in Brighton. Your parents were originally from the Abruzzo region in Italy. Your father came to Australia in the late 50s in order to work in the Snowy Mountains. Your father then worked as a painter and decorator and went on to run his own business for 45 years. Your mother worked from home as a machinist. Your parents attended court to support you.
24 After you completed your schooling, you completed an automotive mechanics apprenticeship in 1989 and have remained in that industry ever since. In 1994, you commenced employment as a Ferrari technician with Il Cavallino Motors, specialising in restoration and repair of luxury automotive vehicles.
25 You married your wife, Josephine, in 1996 and you purchased a house in East Bentleigh together. You have two children, Dean, who was born in 1999 and a second son, Michael, who was born two years later. Dean is now 18 years old and Michael is 16 years old.
26 From very early years, your son was diagnosed with Tuberous Sclerosis Complex, which is a medical condition which involves the proliferation of tumours throughout the body. As a result, Dean’s social and learning capabilities were hindered.
27 Following the tragic death of your employer at Il Cavallino, you formed the company, Terzini Motore. The company was initially based in Richmond. You eventually moved the business to Bay Street, Brighton. The business was successful and held a high reputation for world class restorations, for which the company won numerous awards.
28 In 2012, you and your wife purchased farm property in Dromana for a sum close to $2,000,000.
29 Financial issues caused serious strain on the relationship with your wife around this time. Midway through 2013, friends introduced you to cocaine. You had not used drugs previously. Your use increased throughout 2014.
30 You separated from your wife in March 2014 after a 26 year relationship and 19 year marriage. The divorce was finalised in August 2016. Your children reside with their mother and they will occasionally visit your parents, but you have not had the opportunity of speaking with either of your sons since being in custody. This is an issue which causes you some grief.
31 The Dromana property was sold. A restraining order was made in relation to that property pursuant to an application by the Director of Public Prosecutions. Your ex-wife was able to retrieve her portion of the proceeds.
32 You spent your early days in custody at Port Phillip Prison until mid-January when you moved to Loddon. At Port Phillip, you worked for five days a week at Factory 8. Since May 2017, you have been employed in grounds maintenance. You have been engaged in the horticultural program and have grown vegetable and annual seedlings that will be supplied to schools and community programs and for use in the prison's community vegetable garden. You have performed general maintenance both in the grounds and gardens and performed repairs and low level maintenance as needed within the prison. You have also completed courses in Horticulture (Certificate II), Access to Vocational Pathways (Certificate I), Cleaning Operations (Certificate II), Kitchen Operations (Certificate II) and have successfully completed the Coping Inside – Managing Worry Program and the Managing Sleep Program.[1] You are also on the wait list to complete the 24-hour drug and alcohol course.
Circumstances of offending
[1] Exhibit 6.
33 This offending occurred five months after you committed the offences relating to the Kudelka charges, which have previously been dealt with by this court. Your counsel submitted that the genesis of the offending started when you purchased the property in Dromana for $2 million. The bank valued the property at $1.5 million. The property was heavily mortgaged. The shortfall meant that you did not have access to a withdrawal facility on the mortgage. In that period, you were also dealing with a debt to the Australian Taxation Office of $220,000 which you were in the process of paying off. Part of the funds you received from Kudelka in relation to your sale of the Ferrari (the subject of the Kudelka charges), went towards the servicing of the property.
34 Your counsel referred to the breakdown of your marriage, your son’s ill health, your financial difficulties, your use of cocaine and the clouding of your judgment. Your counsel submitted that all of those matters led to the current offence being committed. Your counsel submitted that the nature of the offending meant that your crime would have been detected.
35 You have now been in custody for over a year. Your counsel submitted that you lost your home, your business, all of your assets, your marriage and now finally your liberty.
36 You have no prior convictions. I sentence you as a person of previous good character.
37 A report by Tim Watson-Munro has been provided on your behalf. [2] In his opinion:
Although Mr Terzini does not suffer any major psychiatric disturbance, it is clear that he is a vulnerable and somewhat malleable individual, who is experiencing escalating depression and anxiety. Compounding the clinical picture, he also suffered a dependence on cocaine, which commenced in about 2012. At his peak, he was using upwards of a gram per day, with this in turn, impacting upon his judgment, but not to the point where he experienced psychotic breaks. He acknowledged a severe rebound depression when withdrawing, which in turn, fuelled the habit. All drug use has now ceased.[3]
[2] Exhibit 5.
[3] Exhibit 5, p 7.
38
In this case, your counsel did not seek to rely on the principles set out in
R v Verdins.[4]
[4] (2007) 16 VR 269.
39
I take into account, too, the other material that has been put before me. I refer to the reference dated 23 September 2016 by David C. Jones,[5] a reference by Andrew Lindsay Fox dated 2 December 2016,[6] a reference by
Dr George J. Luk dated 28 November 2017 and the certificates of courses and programs completed in custody.
[5] Exhibit 4.
[6] Exhibit 2.
40 I accept that prior to this matter, your general reputation within the community was good. You carried out charitable work by taking children from the Royal Children’s Hospital on Ferrari car runs and also provided your services to your son’s primary school.
41 You have however, been convicted of subsequent matters. On 12 September 2016, you were convicted after trial of the Kudelka charges, being one charge of theft and three charges of obtaining financial advantage by deception. You were sentenced to a total effective sentence of 20 months. The court also imposed a Community Correction Order to commence upon your release from custody for a period of 12 months.
42 On 27 February 2017, you were convicted of three charges, which included theft of a motor vehicle and obtaining property by deception, which related to a Ferrari engine worth $50,000. The victim resided in New Zealand and had sent a car over to you. The Moorabbin Magistrates’ Court imposed an aggregate of 12 months' imprisonment. 109 days of presentence detention was declared. The order was made totally concurrent with the sentence that was imposed in relation to the Kudelka charges, and there was a compensation order for $50,000.
Rehabilitation
43 Your counsel submitted that your prospects of rehabilitation are very good, as indicated by your lack of prior convictions, your background as a hard-working individual and positive community member, your plea of guilty and acceptance of responsibility and that you have not offended in nearly four years (three years of which you were in the community). You retain the support of your parents.
44 I am, on balance, satisfied that the chances of your rehabilitation are reasonable.
45 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence , which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
46 Since you committed these offences, there has been delay in the matter coming before me. There was a period of 16 months between the offence and detection. The victim was not aware of the theft until April 2015. There was then a further six months between the report to police in April of 2015 and the interview with police on 19 November 2015. That was essentially due to the victim’s overseas commitments and, at that time, his lack of supporting documentation. You were not charged until 27 April 2016. I take the delay into account in your favour in mitigation of sentence.
47 I have had regard to the principles of totality as expressed in Mill v The Queen.[7] In imposing an appropriate sentence I have had regard to the fact that you are already serving a significant term of imprisonment on a sentence imposed for offending in similar circumstances and at around the same time.
[7] [1988] 166 CLR 59.
48 Your counsel submitted that in these circumstances, the sentencing options include:
(1) A straight sentence with some level of concurrency attached; or
(2) A further combination sentence being a term of imprisonment followed by a community correction order.
49 Your counsel submitted that the imposition of a combined sentence with an additional community correction order would enhance your prospects of rehabilitation.
50 In my view, the imposition of a combination sentence would not be appropriate in the circumstances of this case. The Community Correction Order that was imposed on the Kudelka offences on 23 December 2016 was largely centred on rehabilitation. If a further period of imprisonment was imposed, you would still receive the benefit of supervision and relevant rehabilitative programs pursuant to the community correction order upon your release from custody.
51 The Crown submission is that the most appropriate disposition is a straight sentence of imprisonment with some degree of cumulation on your existing sentence.
52 The Crown submitted that in terms of comparison to the Kudelka charges, it is difficult to say that this offending itself falls either above or below it. One significant feature is that Kudelka’s vehicle was returned to him. And there was a substantial sum paid to Kudelka by yourself in the form of a down payment for a holding deposit. Although the Kudelka charges are not prior convictions, this offending has occurred with the backdrop of the Kudelka offences having taken place some months earlier. The offending is not isolated.
53 The most notable difference between the two matters is the fact that the Kudelka charges proceeded to jury trial. In this case, you pleaded guilty.
54 The Crown submitted that while the gravamen of the two offences is very similar, I am only dealing with one count today. The consequence of that is that you previously fell to be sentenced as a continuing criminal enterprise offender with double the maximum penalties, including for the count of theft. The maximum sentence for each of the charges (including theft) in the Kudelka matter was 20 years' imprisonment, which is double the maximum penalty for the charge of theft. The Crown also referred to the delay. The Crown conceded that you have lost the opportunity to have the two matters dealt with together.
55 This is without doubt a serious offence. The value of the vehicle the subject of the charge is significant. Taking into account the principle of totality, cumulation is still called for, given the gravity of the offence, the time difference between the commission of the Kudelka offences and this offence, and the commission of this offence against another victim.
56 In all the circumstances, I have no alternative to the imposition of a custodial sentence. I propose to record a conviction and sentence you to be imprisoned for 12 months. I direct that eight months be served cumulatively upon the sentence imposed on 23 December 2016.
57 Pursuant to s.6AAA, I state that but for your plea of guilty, the sentence I would have imposed in this case is 18 months' imprisonment.
58 Are there any further matters?
59 COUNSEL: No, Your Honour.
60 HER HONOUR: Yes, thank you. Yes, I will - so that at this stage, the video is turned off or do you want - - -
61 MR TOVEY: Yes, Your Honour. No, I have had - no - my instructors have booked a video conference for me and my client so I will take him through all the matters then.
62 HER HONOUR: Yes, thank you. Mr Schornikov, you can terminate the video conference. I will leave the Bench. Thank you.
63 MR TOVEY: Your Honour pleases.
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