Fischetti v The Queen
[2019] ACTCA 2
•13 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Fischetti v The Queen |
Citation: | [2019] ACTCA 2 |
Hearing Date: | 16 August 2018 |
DecisionDate: | 13 February 2019 |
Before: | Burns, Mossop and Bromwich JJ |
Decision: | See [68] and [97] |
Catchwords: | APPEAL – CRIMINAL LAW – Conviction and sentence appeal from ACT Supreme Court – whether primary judge erred in dismissing applications by accused to discharge the jury – whether primary judge erred in admitting tendency evidence and fresh evidence – whether sentence too severe – whether primary judge erred in considering totality – held: appeals dismissed |
Legislation Cited: | Criminal Code 2002 (ACT) ss 326, 332, 347 Evidence Act 2011 (ACT) ss 97, 101, 101(2) |
Cases Cited: | Barber v R; Zraika v R [2016] NSWCCA 125 Crofts v The Queen [1996] HCA 22; 186 CLR 427 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 |
Parties: | Frank John Fischetti (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms M Jones (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | ACTCA 24 of 2016 ACTCA 61 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Robinson AJ Date of Decision: 14 December 2016 Case Title: R v Fischetti [No 5] Citation: [2016] ACTSC 213 |
THE COURT:
Introduction
This is a conviction appeal and a sentence appeal by Mr Frank John Fischetti. Mr Fischetti was tried by a judge and a jury of 12 on a 13 count fraud indictment. The trial commenced on 4 April 2016 and ran for 38 sitting days. There were 118 trial exhibits. Mr Fischetti did not give evidence at his trial or at the sentence hearing.
Count 13 was the subject of a directed verdict. Mr Fischetti was acquitted on count 3. On 30 May 2016, he was found guilty by the jury on the remaining 11 counts. On 14 December 2016, he was sentenced on those 11 counts to imprisonment for a total of five years, nine months and 27 days, with a non-parole period of three years and three months. He is eligible for release on 29 August 2019.
Mr Fischetti made no submissions in support of either appeal, either in writing or orally at the hearing of his appeals, despite ample time to do so. He furnished handwritten submissions for an amended notice of appeal in respect of his convictions, but that amended notice of appeal was not pressed and the submissions were irrelevant to the conviction appeal that was maintained.
The Crown provided detailed and comprehensive written submissions for both appeals in a single document and a complete copy of the trial transcript. Key exhibits were reproduced in the appeal books. By reason of making no submissions at all, Mr Fischetti did not assert an error in the Crown written submissions, which included detailed summaries of the facts as established by the evidence and summaries of the oral and documentary evidence referred to. Nor did he take any issue with the way in which the trial judge described the case against him in passing sentence. However, he necessarily must be taken to disagree with the specific submissions made by the Crown addressing the conviction and sentence grounds of appeal that he relies upon, at least as to the conclusions urged upon this Court.
As to the facts as found by the trial judge and the evidence upon which they were based, there is no apparent reason why this Court should not give weight to and rely upon the Crown submissions, coupled with the trial judge’s trial rulings, summing up and sentence remarks, supplemented where necessary by consideration of the trial transcript and individual exhibits.
Mr Fischetti was represented by experienced counsel at his trial. It appears that his counsel was unstinting in his efforts to find a defence, or shortcoming in the Crown case in proving its case on the charges beyond reasonable doubt, and indeed it appears he had, or at least contributed to, a measure of success in relation to the not guilty verdict for count 3 and the directed verdict for count 13. It was, on any reasonable view, an otherwise strong and compelling Crown case, relying on substantial direct dealings by key witnesses with Mr Fischetti and many contemporaneous documents, as well as sound inferential reasoning.
Mr Fischetti’s conviction appeal grounds arise from the conduct of the trial, rather than the content of the evidence itself (except as to the tendency evidence ground), and do not assert that the verdicts were unreasonable, or could not be supported by the evidence that was before the jury. His sentence appeal grounds object to the quantum and structure of the sentences imposed and thus to the overall outcome arrived at.
The Crown submissions helpfully provided a dramatis personae in the form of the following table:
Name
Relevant Information
The Appellant
· Born 22 August 1961 and named Franco Fischetti.
· On 17 March 2009 the appellant changed his name to Frank Nicholson
· On 30 April 2013 the appellant changed his name to Frank Divido
· On 21 June 2010 the appellant filed for bankruptcy – becomes undischarged bankrupt
· Director of Equity Management Solutions Pty Ltd (“Equity”)
· Director of Benchmark Warehouse and Logistics Pty Ltd (“Benchmark”) – sole director from 24 February 2014
Martin Green
· Lawyer based in Sydney (apparently with Churchill Lawyers) and known business associate of the appellant
Michael Doyle
· Banker and known to Martin Green
· Knew the appellant as Frank Di Vido and Frank Nicholson
· Sole Director of Chemical Solution Specialist Pty Ltd (“Chemical”) since 27 March 2011
· Verbally consented to being director of Chemical in November 2013
· Listed as Director of Epicure Property Investments Pty Ltd (“Epicure”) and Epicure Property Investments No 1 Pty Ltd (“Epicure 1”) without consent
Michael Catherall (Victim)
· Business owner of Copy Qik
· Director of Catherall Pty Ltd & Print Evolution Pty Ltd
· Known to the appellant by way of the appellant being a customer of Copy Qik since 2012
Michael Mitry
· Mortgage broker with Australian Mortgage & Insurance Group Pty Ltd
Clinton Williams (aka Clinton Sarina)
· Associate who had a role in arranging finances for the appellant
Chemical Solution Specialist Pty Ltd (“Chemical”)
· Previously known as A.P.G Associates Property Group Pty Ltd (until July 2013)
· Michael Doyle was listed as sole director of Chemical since 27 March 2011, but only provided verbal consent in November 2013
Equity Management Solutions Pty Ltd (“Equity”)
· Company controlled by the appellant
· The appellant was a director of Equity
Epicure Property Investments Pty Ltd (“Epicure”)
· Michael Doyle registered as director, without his consent, of Epicure on 5 March 2014
Epicure Property Investments No 1 Pty Ltd (“Epicure 1”)
· Michael Doyle registered as director, without his consent, of Epicure 1 on 14 March 2014
Benchmark Warehouse and Logistics Pty Ltd (“Benchmark”)
· Until February 2014, the directors of Benchmark were the appellant, Edward Lopez, Roger Morris and John Stavros
· On 24 February 2014, the appellant became the sole director of Benchmark
Westin Tristar Logistics Pty Ltd (“Westin”)
· In 2011 the director of Westin was John Zappia
· At no time has the appellant been a director of Westin
Zaps Transport Pty Ltd (“Zaps”)
· In 2011 the director of Westin was John Zappia
· John Zappia knew the appellant as Frank Fischetti
· In 2014 there w[ere] negotiations between Mr Zappia and the appellant to sell Zaps to a company associated with the appellant, however the negotiations fell through
· At no time has the appellant been a director of [Zaps]
Catherall Pty Ltd
· Michael Catherall is director of the company
The conviction offences
It is convenient to use the summary of the 11 counts resulting in a conviction and sentence that appears in the trial judge’s remarks on sentence as follows:
(Count 1) That between 20 November 2013 and 15 December 2013 at Canberra, [Mr Fischetti] by deception dishonestly obtained property, namely $80,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.
(Count 2) That between 18 December 2013 and 16 January 2016 at Canberra, [Mr Fischetti] by deception dishonestly obtained property, namely $50,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.
(Count 4) That between 1 May 2014 and 28 May 2014 at Canberra, [Mr Fischetti] by deception dishonestly obtained property, namely $50,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.
(Count 5) That between 11 June 2014 and 14 June 2014 at Canberra, [Mr Fischetti] by deception dishonestly obtained property, namely $15,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.
(Count 6) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] attempted to commit the offence of dishonestly obtaining a financial advantage by deception from National Australia Bank Limited.
(Count 7) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Company tax return for APG Associated Property Group Pty Ltd for 2012.
(Count 8) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Company tax return for APG Associated Property Group Pty Ltd for 2013.
(Count 9) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled APG Associated Property Group Pty Ltd financial statements for the year ended 30 June 2013.
(Count 10) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Chemical Solution Specialists Pty Ltd annual report for the nine months ended 31 March 2014.
(Count 11) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Michael Doyle Individual tax return 2012.
(Count 12) That between 4 March 2014 and 8 August 2014 at Canberra, [Mr Fischetti] used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Michael Doyle Individual tax return 2013.
The Crown case
10. The charges which resulted in a conviction were able to be grouped as follows:
(a)Counts 1, 2, 4 and 5 related to four sums of money totalling $195,000. The Crown alleged that Mr Fischetti obtained that money by persuading Mr Michael Catherall to cause his company, Catherall Pty Ltd, to pay those sums into certain bank accounts. Those bank accounts were controlled by Mr Fischetti. The payments were purportedly made by Mr Catherall for the purposes of making investments, including in real estate, with the promise by Mr Fischetti of substantial returns. On the Crown case, not only did Mr Fischetti never make any such investment with that money, but had no intention of ever doing so. The Crown case at trial was that the money was never repaid, with much of it being used by Mr Fischetti for daily living expenses, hotels and expensive restaurants. (For completeness, it should be observed that at the sentence hearing, Mr Catherall gave evidence of receiving $70,000 from Mr Matthew Smith after the trial as recompense on behalf of Mr Fischetti; as well as evidence of borrowing the $195,000 to make the investments, and the severe psychological impact Mr Fischetti’s conduct had had on him. The trial judge addressed this evidence in his remarks on sentence.)
(b)Count 6 concerned bank finance that Mr Fischetti sought to obtain for the purposes of the same transaction for which he also purported to obtain funds from Mr Catherall as alleged for count 4. The Crown case was that he attempted to dishonestly obtain a financial advantage by deception.
(c)Counts 7 to 12 related to Mr Fischetti allegedly using six false documents, being documents purporting to be two company tax returns, a financial statement, a company annual report, and two individual income tax returns, in the course of an application for a mortgage with the National Australia Bank (NAB) in favour of Epicure. The money was sought for the same property as count 4. The issue was not whether false documents were provided to the NAB, but rather whether Mr Fischetti was responsible for that happening.
11. A convenient starting point in understanding the nature of the Crown case in more detail is to reproduce from the trial judge’s sentencing remarks the following summary (at [12]-[47]):
Crown case
In the summary of the 12 counts set out below, I have extracted only an outline of the facts as they pertain to the transactions sufficient to demonstrate the nature of the offending in each separate case. There was a degree of planning, co-ordination, comparative business sophistication, cultivation of persons and, of course, deception in the transactions. I will address this later in my remarks on sentence.
In order to set out the facts relevant for sentence, it is convenient to group the offences. Counts 1, 2, [4] and 5 concern four sums of money obtained by [Mr Fischetti] by persuading Michael Catherall to cause Catherall P/L to pay those sums into bank accounts connected with [Mr Fischetti]. The total of the four sums was $195,000.
Counts 1, 2, [4] and 5
Mr Catherall and his wife owned the shares in Catherall P/L which operated a business called CopyQik in Canberra and delivered colour print, photocopying, graphic design, printing and scanning services. [Mr Fischetti], who was known to Mr Catherall as Frank Divido, was a customer. Their acquaintance goes back to at least March 2011. [Mr Fischetti] would bring to the premises documents to be scanned and then sent to an email address specified by [Mr Fischetti]. A friendship of sorts developed over time. Mr Catherall paid some attention to the documents he scanned. One set of documents evidenced [Mr Fischetti] owning a boat worth $3.9 million and a conversation occurred in relation to this fact. Other documents evidenced business transactions through various entities. Over time, Mr Catherall believed or, more accurately, was induced to believe by [Mr Fischetti] that [he] had substantial means and was a man of commerce instead of an undischarged bankrupt in receipt of carer’s benefits.
In late 2013, [Mr Fischetti] and Mr Catherall met at a coffee shop, as was their routine at that time. [Mr Fischetti] said that he and his business partner, Martin Green, had an office in Sydney, which was located below an insolvency company’s office. [Mr Fischetti] claimed that the insolvency company would sell assets belonging to people who were bankrupt and would alert [Mr Fischetti] to those properties which might be a development opportunity. [Mr Fischetti] claimed he was advised of about 20 projects a month and because he could not undertake all of them, he would pick the investment opportunities that he could turn over in the fastest time. Mr Catherall enthusiastically embraced the prospect of investments in such opportunities.
Count 1 – obtain property by deception ($80,000 for the Sorrento property)
[Mr Fischetti] told Mr Catherall that the insolvency company told him about a property investment in Sorrento, Gold Coast, Queensland (“the Sorrento property”). [Mr Fischetti] said that he already had a purchaser for the Sorrento property lined up, who was a builder. The Sorrento property was in three blocks on a canal. [Mr Fischetti] told Mr Catherall of the plan for the Sorrento property and the plan that the builder had in mind for it. Mr Catherall asked [Mr Fischetti] some questions about the project and got what he regarded as satisfactory answers. [Mr Fischetti] said that all he needed was the money for the deposit. He told Michael Catherall that he had used other third parties before to contribute towards the deposit.
After that meeting, sometime in December 2013, Mr Catherall received a phone call from Martin Green. Martin Green told Mr Catherall that he worked for Churchill Lawyers, and [Mr Fischetti] had told him Michael Catherall was interested in investing in the Sorrento property. Martin Green told him that the settlement of the Sorrento property was due on 14 February 2014. Upon settlement, Mr Catherall would receive his investment of $80,000 back plus $40,000. Mr Catherall agreed to invest $80,000 in the Sorrento property. Martin Green said words to the effect of:
“Frank must really like you to bring you in on this deal when it was almost done and dusted.”
On 14 December 2013, $80,000 was credited to a bank account controlled by [Mr Fischetti]. The Sorrento property was never purchased and the money was immediately disbursed for other purposes.
There was some evidence of an attempt to acquire the Sorrento property but that evidence had no relationship with what Mr Catherall had been told and which caused Catherall P/L to part with its money.
Count 2 – obtain property by deception ($50,000 for the Seaforth property)
On 19 December 2013, Martin Green told Mr Catherall that there was a further property investment opportunity [Mr Fischetti] was involved in, which required the sum of $50,000.
On 23 December 2013, Martin Green emailed Mr Catherall and explained that Chemical Solutions was to pay $4.3 million for two properties at 173 and 173A Seaforth Crescent, Seaforth NSW 2092 (“the Seaforth property”). The valuation for the land was expected to be $8 million. [Mr Fischetti] was to pay $4.3 million for the Seaforth property. The blocks were to be subdivided and then sold. The investment was a 50% return on the $50,000 in 10 weeks or a 100% return for 6 months.
On 13 January 2014, [Mr Fischetti], Martin Green and Mr Catherall met at the Glass House Cafe. The Sorrento property and the Seaforth property were discussed. Mr Catherall believed that the investment deals were legitimate. Mr Catherall agreed with [Mr Fischetti] that he would participate in the property investment for the Seaforth property.
On 14 January 2014, Mr Catherall transferred $50,000 to an account controlled by [Mr Fischetti]. The property at Seaforth property was never purchased. The funds were immediately dissipated for other purposes.
Count 4 – obtain property by deception ($50,000 for the Nicholls property)
Caterina Commisso was the owner of the property located at 75 Sue Geh Circuit, Nicholls, in the Australian Capital Territory (“the Nicholls property”). In March 2014, she put the property on the market and retained Jordans Lawyers to act for her in the sale.
On 11 March 2014, [Mr Fischetti] attended an open house at the Nicholls property with his wife. [Mr Fischetti] then negotiated the purchase of the house. On 14 March 2014, [Mr Fischetti] handed over a signed… contract for sale to Mrs Commisso and paid a 5% deposit. A further 5% deposit was paid on 6 May 2014 and the deposit ultimately released to the vendor.
The proposed purchaser was Epicure Property Investments P/L. That was a corporation which had come into existence on 5 March 2014 and had one director according to the ASIC register, Michael Doyle. I am satisfied beyond reasonable doubt that Michael Doyle did not consent to this appointment and knew nothing of it at that time. The significance of this is referred to below.
In about mid-May 2014, [Mr Fischetti] told Mr Catherall that he was in the process of purchasing the Nicholls property. [Mr Fischetti] claimed he needed $90,000 for the deposit or he would default and the purchase would be terminated. In fact, the deposit had already been paid as above. Mr Catherall agreed to loan [Mr Fischetti] $50,000, and [Mr Fischetti] said he would repay Mr Catherall double that amount when the house settled.
On 26 May 2014, Mr Catherall transferred $50,000 to a bank account controlled by [Mr Fischetti]. On 28 May 2014, [Mr Fischetti] withdrew $50,000 in cash and used it for other purposes.
The sale of the Nicholls property did not proceed and the agreement for sale was terminated in August 2014.
Count 5 – obtain property by deception ($15,000.00 for Logistics Company)
On 12 June 2014, [Mr Fischetti] told Mr Catherall that he was putting all his money into buying out his partner in a logistics company, but he was $15,000 short. Mr Catherall agreed to lend to [Mr Fischetti] $15,000 to assist [Mr Fischetti] in buying out his business partner. [Mr Fischetti] said he would pay Mr Catherall back in one week.
There was at that time no contract for the purchase of the logistic[s] business or a buy out of an interest under it on foot.
On 12 June 2014, Mr Catherall transferred $15,000 into an account controlled by [Mr Fischetti]. [Mr Fischetti] did not use the money to buy out a business partner in a logistics company. The money was dissipated over the next few days.
Count 6
It is clear on the evidence that [Mr Fischetti] wished to acquire the Nicholls property as a home for his family. The acquisition followed an eviction by the ANZ of the family from a house at Phyliss Ashton Circuit, Gungahlin for default on the mortgage. Although having paid the deposit, substantial funds were needed to settle the transaction. Count 6 is concerned with the attempt by [Mr Fischetti] to obtain a loan of $1.4 million from the National Australia Bank (“NAB”), through its division Homeside Lending.
Michael Mitry of Australian Mortgage & Insurance Group Pty Ltd was a mortgage broker. Mr Mitry had arrangements in place whereby he could make applications for finance online to the NAB through a portal.
As set out above the purchaser, Epicure Property Investments P/L had been incorporated in March 2014 and had no business or funds.
On 2 or 6 May 2014, Michael Doyle met with Clinton Williams and Michael Mitry at Novotel Brighton Le Sands. Michael Mitry wished to meet with Michael Doyle as he was also the sole director of Chemical Solutions, which was a company that was to submit its financial information in support of the application for finance for the purchase of the Nicholls property. Michael Doyle believed that Chemical Solutions was to be a guarantor for the loan. Michael Doyle signed paperwork believing he was signing in his capacity as Chemical Solutions’ sole director and not in any personal capacity.
On 8 May 2014, the Nicholls property was inspected by a property valuer retained by Homeside Lending. The property was valued at $1.75 million.
On 26 June 2014, an application for a mortgage in the sum of $1.4 million and in the name of Epicure Property Investments was submitted electronically by Michael Mitry to the NAB with supporting documentation. Further supporting documentation was electronically forwarded to the NAB at a later date. Michael Doyle was listed as the guarantor. The balance sheet and profit and loss statements of Chemical Solutions submitted in support of the application demonstrated a substantial and profitable company with drawings available from that company to Michael Doyle to service the proposed loan.
I am satisfied that beyond reasonable doubt that, at no time, did Michael Doyle consent to being made a personal guarantor on the application for finance to the NAB for the Nicholls property.
I am also satisfied that a document setting out Michael Doyles’ assets and liabilities and which was provided to the NAB was false and not completed by Michael Doyle nor authorised on his behalf.
By 2 July 2014, the NAB had given unconditional approval for the loan. By 11 July 2014, documentation to give effect to the loan had been executed and returned to the bank.
On about 10 July 2014, the NAB was alerted by the Australian Federal Police to the possibility that [Mr Fischetti] was fraudulently attempting to apply for a mortgage over the Nicholls property.
The mortgage was not granted to Epicure Property Investments.
Counts 7 – 12
It was not in dispute that false documents were provided to the NAB in support of the application for mortgage finance submitted by Epicure Property Investments. The Crown case was that [Mr Fischetti] caused these documents to be submitted by Mr Mitry to the NAB.
Much of the evidence was taken up with the provenance of these false documents and the part played in their manufacture by [Mr Fischetti] and also the route by which both the documents and the information in them evolved into their final form and travelled to Mr Mitry for submission to the NAB.
These documents were:
Count 7 A.P.G Associated Property Group Pty Ltd Company Tax Return for 2012
Count 8 A.P.G Associated Property Group Pty Ltd Company Tax Return for 2013
Count 9A.P.G Associated Property Group Pty Ltd Financial Statements for end 30 June 2013
Count 10Chemical Solution Specialists Pty Ltd (previously called A.P.G Associated Property Group Pty Ltd) Annual Report for the 9 months ended 31 March 2014
Count 11 Individual Tax Return for Michael John Doyle for 1 July 2011 – 30 June 2012
Count 12 Individual Tax Return for Michael John Doyle for 1 July 2012 – 30 June 2013
Each of the documents purport to be signed or initialled by Michael Doyle. He was closely cross examined on the documents and disclaimed their authenticity.
The documents were populated by invented figures given to Mr Trovas by [Mr Fischetti].
12. The understanding of the case is further assisted by the following additional findings made by the trial judge for the purposes of imposing sentence (at [48]-[55]):
[Mr Fischetti] chose not to give evidence at his trial as was his right. In the Crown case there were a number of persons who played important parts in the various transactions and who had dealings and communications with [Mr Fischetti].
Michael Doyle was a man of about 59 years of age in 2013 when he was first introduced to [Mr Fischetti] by Martin Green. Mr Doyle had a history of investment banking specialising, it seems, in mergers and acquisitions. In 2013 he was working as a consultant and according to his taxation returns, was earning a very modest income. He had not accumulated a great value of assets. Mr Green thought that Mr Doyle may be in a position to become a non-executive director of the company associated with [Mr Fischetti]. Mr Doyle agreed to do this. He saw this as a way he might, in due course, become chairman of a substantial enterprise. As part of this engagement, Mr Doyle sent photocopies of various documents of identification (drivers licence, passport and like matters) to Mr Green or [Mr Fischetti]. Unbeknown to Mr Doyle at the time, when he agreed to become a director, that directorship entry on the ASIC register was retrospectively backdated to 23 November 2011. After he accepted the directorship, Mr Doyle was kept in the dark as to the company’s business, including not being given access to its financial statements. The documents of identification supplied by Mr Doyle were able to be and were [to] be used for other purposes.
Although many of Mr Doyle’s answers in a very lengthy cross-examination cast doubt, in my mind, upon his business acumen, I find that he was an honest witness who was used by [Mr Fischetti], as was his name and identity “Michael Doyle” to carry out parts of the transactions which make up many of the offences.
Mr Green, in 2013, was described as a solicitor with the Sydney firm of Churchill Lawyers at several points in the evidence. In other parts he was described as a consultant to the firm. Mr Green knew Mr Doyle because their paths crossed when working in the same office building in 2009. Mr Green assisted in many of the transactions involved in the offences. Because he was not called as a witness, I refrain from making any finding as to whether he acted in accordance with a dishonest plan agreed between [Mr Fischetti] and himself or whether he acted as agent for [Mr Fischetti].
Mr Mitry was a finance broker. There is no evidence that he ever deviated from carrying out his instructions to the best of his ability. It was conceded by [Mr Fischetti] in final address that he had been honest in his dealings.
Mr Trovas was a public accountant. He met [Mr Fischetti] in early 2013 and knew him as “Frank Divido”. He acted upon instructions from [Mr Fischetti] and produced sets of accounts and other documents. As an accountant authorised by ASIC to make online changes to the ASIC register, Mr Trovas brought into existence corporations and changed details of those corporations. This he did in accordance with instructions given by [Mr Fischetti]. In this way [Mr Fischetti] exploited the identity of Michael Doyle who was added as a director to other corporations. As it turned out, Mr Trovas was not paid for his work. He invested his labour in the business affairs of [Mr Fischetti]. The opportunity cost of this may not have been high though. Mr Trovas himself was a bankrupt who had “just been through cancer” and who was in a poor financial position. Mr Trovas was hoping that he would be able to combine an existing business he had an interest in with that of [Mr Fischetti]’s business and obtain a financially rewarding position in the combined enterprise. It was eventually conceded that Mr Trovas had also been honest in his dealings. He did not make up or invent himself any figures appearing in the financial documents submitted to the NAB.
Clinton Williams, also referred to in the evidence as Clinton Sarina, appears to have had some role in the organising of finances. He attended an important meeting and was the source of some instructions to Mr Mitry. It is not possible, on the evidence, to determine what role he played in the transactions.
In his final address, counsel for [Mr Fischetti] put to the jury that Mr Doyle and Mr Green were the central figures. They had an association going back to 2009. They were “puppeteers”. When the evidence was properly analysed, so the submission went, [Mr Fischetti] had only a minor part in the transactions. Counsel’s address was rather non-specific as to the part [Mr Fischetti] played. By this last observation, I make no criticism of the counsel for [Mr Fischetti].
The grounds of appeal
13. The grounds for Mr Fischetti’s conviction appeal, in a notice of appeal dated 24 June 2016, are as follows (at [4]):
The grounds of appeal are:
a)His Honour erred in refusing specific applications by the accused to discharge the jury following:
i The constant addition by the Crown of evidentiary material after the commencement of the trial;
ii The Crown misleading the jury concerning a significant element of counts 1, 2, 3 and 5, by informing the jury that representation[s] made by the accused that there was a “Sorrento project” was a false representation, which was contrary to the evidence;
iii The Crown misleading the jury by alleging to the jury that the accused lied to the witness Catherall about the “Sorrento project” which was contrary to the evidence;
iv The Crown misleading the jury in its opening about representations and/or conduct by the accused concerning a luxury motor yacht being an inducement by the accused to obtain financial advances when unsupported by the evidence.
b)Admission of fresh evidence by the Crown immediately before, and during the trial.
c)The admission of tendency evidence.
14. Thus the conviction appeal grounds above essentially raise three broad allegations:
(a)error in the admission of evidence that was furnished by the Crown to the appellant immediately prior to, and during, the trial, and additionally error in not discharging the jury as a result of that taking place;
(b)error in the admission of tendency evidence; and
(c)failure to discharge the jury following what are said to be various misleading submissions to the jury by the Crown in its opening address.
15. The grounds for Mr Fischetti’s sentence appeal, in a notice of appeal dated 23 December 2016, are as follows (at [4]):
The grounds of the appeal are:
a)The sentence imposed for Counts 1 and 6 were too severe;
b)His Honour erred in failing to make the sentences imposed for Counts 6, 7, 8, 9, 10, 11 and 12, partially concurrent with the sentences imposed for Counts 1, 2 and 4;
c)His Honour erred in the partial accumulation of the sentence imposed for Count 6 upon the sentences imposed for Counts 7, 8, 9, 10, 11 and 12.
16. The sentence appeal grounds above essentially take issue with the severity of the sentences imposed, both in terms of duration for counts 1 and 6, and in relation to the degree of concurrency and consecutiveness of the remaining counts, apart from count 5 as to which no complaint is made.
Conviction grounds (a)(i)-(iv) and (b)
17. Mr Fischetti’s conviction grounds (a)(i) to (iv) and ground (b) all concern the way in which the trial unfolded in a way that undoubtedly amounted to a change in detail from the Crown position at the outset, both in terms of the content of the Crown opening in two particular respects, and in terms of additional evidence the existence and relevance of which emerged during the course of the trial and was tendered by the Crown and admitted into evidence. Mr Fischetti’s counsel sought the discharge of the jury in respect of these events. All of the events in these grounds related to count 1 of the indictment, concerning what was referred to as the Sorrento project, in relation to a property at Bundall on the Gold Coast in Queensland. Ground (a)(iv) also relates more generally to counts 1, 2, 4 and 5 insofar as the Crown alleged that representations regarding the luxury motor yacht were made to cause Mr Catherall to believe that Mr Fischetti was wealthy.
18. In relation to the Crown opening, the application to discharge the jury was refused, with reasons later published by the trial judge: see R v Fischetti (No 1) [2016] ACTSC 104. In relation to the additional evidence, the application was refused by the trial judge, but his Honour gave counsel for Mr Fischetti additional time to consider the material, and an opportunity to renew the application sought, but this was not availed of. In substance, Mr Fischetti challenges the refusal of the trial judge to discharge the jury on either or both bases.
Principles
19. A Crown opening is undoubtedly an exercise in prediction. The Crown opens to the jury as to what the effect of the evidence is expected to be in support of the charges in the indictment. In some, perhaps most, cases, that prediction proves to be wholly or substantially accurate. But when there is a departure, and the accused takes issue with it, the trial judge has a wide, but not unfettered, discretion to decide whether or not the change that has taken place is substantial, and if so, whether it can be accommodated in a way that is fair to the accused, or whether the jury must be discharged. As outlined below, the law is well-developed in this area. This case is not novel, although it necessarily turns on its own facts and circumstances.
20. The course of evidence in a trial can similarly depart from what has been, and is ordinarily required to be, disclosed to the accused prior to the commencement of the trial. Notwithstanding that general starting point, issues can emerge during the course of a trial and additional evidence obtained and adduced as a result. Once again, the trial judge may be called upon to determine whether the introduction of different or additional evidence can be fairly accommodated, and if not, whether, for example, the solution is to reject the evidence, or discharge the jury.
21. The capacity of a trial judge to discharge a jury by reason of a prejudicial event is not in doubt. But it is a discretion that does not lend itself to rigid rules and formulas. Rather, the decision to grant or refuse a jury discharge application is inherently case specific, recognising that such events will inevitably occur from time to time. The trial judge’s response to such an application must pay careful heed to the nature of what has occurred, and its circumstances, including, non-exhaustively, the seriousness of the event in the context of the contested issues at trial, the stage at which the problem arises and is raised as an issue by way of a discharge application or otherwise, how the incident arose (including its deliberateness or inadvertence on the part of the Crown), and the likely effectiveness of a direction to the jury: see Crofts v The Queen [1996] HCA 22; 186 CLR 427 at 440.
22. Unless there is an evident error in the approach taken by the trial judge, such as acting upon a wrong principle, or such an error is readily able to be inferred from a result that is unreasonable or plainly unjust, an appellant court is not entitled to intervene, even if it would, perhaps, have taken a different approach: Curran v R [2017] NSWCCA 123 at [28]-[31]; see also House v The King (1936) 55 CLR 499 at 505; Barber v R; Zraika v R [2016] NSWCCA 125 at [24]; and Hughes v The Queen [2018] NSWCCA 2 at [35].
23. In Dickson v R [2016] NSWCCA 105, which concerned a complex international tax fraud, the Crown opening included the characterisation of a particular transaction as a “sham”. As the evidence unfolded, the nature of that transaction fundamentally changed. In opposing an appeal against the refusal of the trial judge to discharge the jury, the Crown contended that the change was not material because at all stages the Crown case concerned a conspiracy to cause a loss to the Commonwealth. The New South Wales Court of Criminal Appeal held (at [44]) that the Crown case, when pared back to the basic allegation, was that the appellant was part of a conspiracy to defraud the Commonwealth by falsifying expenses claimed in company tax returns, and did not rest solely on the particular aspect said in opening to have been a sham. The change in the case did not amount to any fundamental shift, such that the change on this topic did not constitute a change in the Crown case.
24. The hurdles in overcoming the exercise of discretion by a trial judge to refuse to discharge a jury are therefore substantial. A trial judge is generally going to be in a position of real and substantial advantage in assessing the impact of the event giving rise to the jury discharge application, and the capacity of the problem to be sufficiently remedied, such as by a direction to the jury. The decision is required to be approached by the trial judge upon the basis of it being demonstrated that there is a “high degree of need” for a discharge, with much depending on the nature and degree of the prejudice alleged, the evidence already adduced and yet to be adduced, how much the event objected to may be subsumed by the totality of the evidence and whether the prejudice can be avoided or dispelled by an appropriate direction. This required approach is longstanding: see R v Boland [1974] VR 849 at 866. There is a need for trial by jury to be a robust, but fair, institution if it is to endure.
The characterisation of the Sorrento project
25. The first aspect of the Crown opening objected to concerns the Crown characterisation of the Sorrento project as, in effect, a fabrication or a “lie”. The Crown said in opening on this topic that while there was a property for sale, and while there was a real estate agent who sent a contract to Mr Michael Doyle to his email address in November 2013, there would be evidence that this was not in fact Mr Doyle’s email address, but rather an email address used by Mr Fischetti. The Crown opening characterised the contract for the Sorrento project as being legitimate, but said it was not a legitimate project, but rather a lie by Mr Fischetti. The substance of the Crown case is that the Sorrento project was put in place in order to extract money from Mr Catherall. The Crown opened (and proved) that the money provided by Mr Catherall dissipated within four days and was not used on the Sorrento project.
The evidence of Mr Catherall was to the effect that Mr Fischetti had told him about the existence of the property, and of looking to purchase it, in which event he would subdivide it and sell it to a builder who had already been organised, that the vendor was rich and wanted to sell, that the three blocks of land could be subdivided into six or nine blocks which would sell for $2 million each, and that no real estate agent would be involved so that the process would not be slowed down.
Mr Fischetti’s challenge to the Crown characterisation of the Sorrento project emerged during the cross-examination of a Crown witness, Mr Michael Mitry. Mr Mitry was a loan broker who dealt with the NAB, who was called by the Crown to give evidence in relation to submitting the loan application to which counts 6 to 12 in the indictment related. However, he was cross-examined about a different loan application in respect of a property on the Gold Coast. After that cross-examination, Mr Mitry produced additional documents to the Crown and was recalled to give evidence about them. Those documents related to a loan application for the Bundall property to which the Sorrento project related.
28. On 11 May 2016, day 25 of the trial, counsel for Mr Fischetti took issue with the Crown opening describing the Sorrento project as being a “lie”, in the sense that it was said not to exist, in light of the evidence that had been adduced. This was a reference to evidence emerging, after the cross-examination of Mr Mitry, of there in fact being a loan application made, which was said to negate the proposition that the Sorrento project was a “lie”. Thus it was argued that the “lie” characterisation caused ongoing prejudice requiring the discharge of the jury.
29. The Crown submissions in response acknowledged that the Crown case had in part changed because evidence of the loan application had emerged in the cross-examination of Mr Mitry. That is, there was some evidence the project in some form had existed at some point in time. However, the Crown position was that it was expected that the evidence would indicate that this loan application was itself fraudulent, and that in any event there was no contract in place as of 13 February 2014, so as to permit the project to be completed and Mr Catherall repaid, as promised, the next day. The substance of the Crown opening, namely that the Sorrento project had been no more than a means to extract money from Mr Catherall remained intact, even if the precise character of the project being a “lie” might have been contestable.
30. The trial judge, in his reasons for refusing the discharge application on this issue, said (R v Fischetti (No 1) [2016] ACTSC 104 at [10]-[12]):
However, there is now a body of evidence tendered in the case which, if accepted by the jury, demonstrates that there was, in fact, “a Sorrento project” in existence as at the critical date of 13 or 14 December 2013. It may be accepted that even if the jury conclude that there was a Sorrento project in existence as at 13 or 14 December 2013, that will not necessarily mean that the count will fail. Counsel for the accused submitted that there is ongoing prejudice caused by the Crown Prosecutor’s remarks in stating there was no “Sorrento project” and it was a “lie”.
Counsel for the accused drew particular attention to the characterisation of the position as a “lie”. I am not sure that, in the circumstances, that characterisation in an opening will have such an impact upon the jury in the light of the charges, the evidence and the fact that the trial has gone on for so long. All the 12 counts involve dishonesty. The first count necessarily involves making representations which are allegedly deceptive and dishonest and are made to obtain someone else’s property.
I interpolate to record that there is a related complication to the introduction of this body of evidence concerning the “Sorrento project”. It is that the attempt to raise the mortgage finance to acquire the Sorrento property may, itself, involve further criminal conduct by the submission of a fraudulent application for that finance. Directions may need to be given to how this evidence can be used and for what purpose.
31. There is no discernible error in the approach taken by the trial judge in the above passages. This was much less of a change than took place in Dickson. It was a change in emphasis and in detail, not a change in the substance of the Crown case, let alone a material change. Counsel for Mr Fischetti was making far too much of this characterisation issue at trial. It does not improve on appeal. Moreover, as the Crown now submits, there was substance to the Crown’s prediction as to the future course of the evidence. Mr Doyle gave evidence after the discharge application was refused to the effect that he had no knowledge of the funding proposal for the project, on any view a curious state of affairs given that he was meant to be involved in this project from at least the real estate agent’s point of view. Further, the original of the loan application, which included the signature of Mr Doyle, was found at Mr Fischetti’s property.
32. In any event, the central issue was the fraud on Mr Catherall, for which there was an abundance of evidence. No credible case has been made that the Crown opening in this respect was not one that was ultimately open to be made and for the jury to determine, or if overstated, had any material effect on the verdict that was reached.
The boat issue
The second aspect of the Crown opening objected to by Mr Fischetti concerns the Crown characterising the boat brochure and related conversation between him and Mr Catherall as being a “lie” on the part of Mr Fischetti, suggesting that he had bought the boat for $3.9 million, to “reel Mr Catherall in”: see the summary from the sentence remarks at [14], reproduced at [11] above. The Crown opened to the effect that this was done to cause Mr Catherall to believe that Mr Fischetti was wealthy, when in fact he was an undischarged bankrupt who had a declared taxable income of less than $20,000 for the preceding three financial years. The issue is not whether false information was given by Mr Fischetti, but whether it had any proximate or immediate bearing on the decision by Mr Catherall to advance money towards the Sorrento project. It was largely an issue of timing.
34. Mr Catherall’s initial evidence had placed the boat conversation proximate to the payment of the money the subject of count 1, in 2013. This initially supported the Crown opening that this had contributed to his decision to advance the funds to Mr Fischetti. However, after he finished giving evidence, Mr Catherall found an email related to the boat dated 9 March 2011. Mr Catherall was recalled, and in cross-examination agreed that the conversation about the boat had nothing to do with him handing over the money (over two years later). In the discharge application, counsel for Mr Fischetti said that this compounded the complaint made about the Sorrento project being a lie.
35. The Crown’s response was that the relevance of the evidence relating to the boat was not confined to count 1, but was relevant to each of the counts relating to deceptive conduct. While the timing had changed, that did not change the substance of the Crown’s opening. Mr Catherall’s evidence remained that the conversation about the boat formed part of his (entirely false) impression that Mr Fischetti was a successful businessman. Viewed as a whole, the error in the opening as to the proximity between the boat conversation and the payment that was the subject of count 1 was an obvious error. It could not reasonably have occasioned any lasting prejudice, and the boat conversation and the impact of it remained more generally relevant to the false impression that Mr Fischetti was giving of himself as a means of giving comfort to Mr Catherall in advancing funds to him.
Trial judge’s treatment of the Sorrento project characterisation issue and the boat issue
36. At [20] of the trial judge’s reasons, his Honour said that he did not regard either of these matters, or the two taken together, as requiring the discharge of the jury. His Honour further noted at [21]-[22] that this was not a case in which the mismatch between what was said by the Crown in opening and the evidence adduced had created any irremediable prejudice and that the jury had already been instructed as to the limited purpose of a Crown opening and that they were to act upon the actual evidence and not the anticipated evidence.
37. In all the circumstances, it would have been a surprising conclusion to have decided to discharge the jury upon either basis advanced. These grounds asserting error in failing to discharge the jury must fail.
The additional evidence adduced – grounds (a)(i) and (b)
38. These grounds are not particularised. The Court is assisted by the Crown’s endeavours to ascertain what is being complained about. Doing the best that it can, the Crown interprets the grounds as being an allegation of a miscarriage of justice by reason of the trial judge failing to discharge the jury following an application to do so based on evidence furnished to the Crown during the course of the trial. The application was made on 21 April 2016, day 13 of the trial. It followed on from, and referred to, an unsuccessful application to vacate the trial date, that had been rejected by another judge, Refshauge J, on 24 February 2016. A part of the basis for that application had been the need for additional time to prepare for trial in relation to a voluminous brief of evidence.
39. The evidence complained of comprised:
(a)An envelope of documents seized by police and provided to a forensic document examiner, but not relied upon by the Crown as being relevant to the charged conduct or served on the defence until called for when the document examiner was giving evidence. Those documents became available to the parties following the call, and were later (after the application to discharge was refused) tendered through the person from whom they were seized without objection.
(b)Documents in three manila folders, relating to Mr Doyle, two of those folders having been previously disclosed on a disk, but not apparently as proposed evidence. Counsel for Mr Fischetti was asked how he wished to proceed with his application to discharge insofar as it concerned these documents. The situation was arrived at whereby he would have the following four days in which to consider them, from Friday, 22 April 2016, to Monday, 25 April 2016 (Anzac Day) and to make any further application, the discharge application being refused at that time. The application was not renewed.
40. The Crown, after citing leading authority on:
(a)what constitutes a miscarriage of justice: Mraz v The Queen (1955) 93 CLR 493 at 514;
(b)the principles and some of the key authorities on the Crown’s duty of disclosure, including R v Spiteri [2004] NSWCCA 321; 61 NSWLR 369; R v Keane [1994] 1 WLR 746; and R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454; and
(c)the cautious treatment given to disclosure problems, given its importance to a fair trial, and the concern with fairness to an accused in Medich (No 6) v R [2016] NSWSC 1001 at [31]-[32], and the cases cited at [24],
submits that while disclosure of additional evidence during the course of a trial is undesirable, this arose as a consequence of the evidence becoming known to the Crown as the trial progressed, or being called for by the defence, such that no miscarriage of justice had occurred. It should be noted that nothing of this nature has been identified by Mr Fischetti.
41. The Crown further submits that the trial judge’s refusal to discharge the jury in these circumstances was reasonable and proper, having regard to the stage at which the trial had reached, the time given to counsel to consider the material and the absence of any renewal of the application to discharge.
42. The Crown’s submissions should be accepted. No error on the part of the trial judge is apparent, and no miscarriage of justice evident. The emerging and adducing of the additional evidence was unremarkable in all the circumstances and properly addressed by the trial judge. These grounds of appeal must therefore fail.
Tendency evidence – ground (c)
43. The Crown sought and obtained a tendency ruling prior to the trial. It relied upon a reasonably detailed notice of intention to adduce tendency evidence, dated 1 October 2015. Six tendencies were identified. It is convenient to adopt the shorter summary of them contained in the Crown’s written submissions:
Tendency 1: To represent, hold himself out to be and act in the capacity of “Michael Doyle”, without the knowledge or consent of Michael Doyle;
Tendency 2: To attempt to purchase property by registered companies to which Michael Doyle [w]as a Director, without the authority or consent of Michael Doyle;
Tendency 3: To represent and hold out that the company Chemical Solutions was his company when he was not a director in Chemical Solutions;
Tendency 4: To obtain funds from people on the pre-text of making investments in property and/or businesses with the ulterior intention of not returning monies (be it a return on the investment or the principle) to those people;
Tendency 5: To not purchase properties as agreed between the lender of funds and himself; and
Tendency 6: To obtain and keep all funds obtained from lenders by providing no return to investors (either by way of fulfilment of [the] contra[ct], refunding of [the] principle or making interest repayments).
44. The Crown application was heard by Refshauge J, who was not the ultimate trial judge, on 10 March 2016. The Crown relied on:
(a)the affidavit evidence of two witnesses (to which no objection was taken and no cross-examination required);
(b)additional documentary material by way of financial records and formal statements to produce them, most of which was in the Crown brief of evidence and admitted over formal objection (essentially, it seems, to late service relative to the tendency evidence application and perhaps to hearsay, despite the application being interlocutory);
(c)written submissions dated 21 October 2015; and
(d)supplementary written submissions dated 17 March 2016 to reduce to writing oral argument advanced by the Crown.
45. Written submissions for Mr Fischetti were handed up at the hearing of the application.
46. The tendency argument was based on the original indictment signed on 24 July 2015, and filed on 27 July 2015. The trial proceeded on a later indictment dated 1 April 2016, which included the same 13 counts, but with a change to the order of the charges and the date ranges alleged. There was no material difference in the form or content of the indictment for the purposes of the tendency adjudication now challenged.
47. In substance, the Crown’s tendency application sought to achieve cross-admissibility of evidence adduced in support of each count in the indictment, plus the admission of two uncharged acts. Generally speaking, this use of tendency evidence is of the least contentious kind, and usually involves the most limited issues of prejudice, certainly when compared to sexual offending. There is generally much less risk of unfair prejudice by reason of the possibility of the jury misusing the tendency evidence.
48. It is convenient to reproduce the Crown summary of the two uncharged incidents (footnotes omitted):
First uncharged incident: this involved the appellant obtaining legal services from Donna Clarke, a conveyancing manager at Watts McCray Lawyers, pretending to be Michael Doyle for the purposes of purchasing a property at 12 Phyllis Ashton Circuit in Ngunnawal. The appellant signed a contract for sale as “Michael Doyle”, however Michael Doyle never signed the contract, nor was involved in the conveyance of the property.
Second uncharged incident: this involved the appellant agreeing to assist Rosie Ryleweski (nee Grima) in purchasing a house in her name. Pursuant to the agreement, on 2 May 2014 Ms Ryleweski transferred $170,000.00 to the appellant into an account held by Equity Management Solutions. A further $10,000.00 was provided to the appellant in cash. The appellant took the money and purported to organise finance. The appellant never purchased the house, nor returned the money.
49. An important point to note about the two uncharged acts is that they involved substantially larger sums of money than any individual charge in the indictment. As will be seen, that featured in the objection to the tendency evidence being admitted.
50. The Crown submissions also conveniently summarise both the content of the tendency application, and the evidence that was led at trial in a single detailed table as follows (footnotes omitted):
Tendency
Evidence
Count to which the evidence was relevant to
Tendency 1 & 2 (“Michael Doyle Tendencies”):
Tendency 1: That the appellant had a tendency to represent, hold himself out to be and act in the capacity of “Michael Doyle”, without the knowledge or consent of Michael Doyle;
Tendency 2: That the appellant had a tendency to attempt to purchase property by registered companies to which Michael Doyle was, according to the ASIC register, a Director, without the authority or consent of Michael Doyle
Uncharged Incident 1:
· contract for sale signed by “Mike Doyle” as director of Chemical Solution Specialists Pty Ltd, the purported purchasing entity of the property – exhibit 2
· evidence of Donna Clark of a man purporting to be “Michael Doyle” instructing her to act on his behalf as director of Chemical Solution Specialists Pty Ltd, the purported purchasing entity of the property
Uncharged Incident 2:
· contract for sale signed by “Mike Doyle” as director of Ezra Investments Pty Ltd, the purported purchasing entity of the property – exhibit 4
Count 3:
· contract for sale signed by “Mike Doyle” as director of Epicure Property Investments Pty Ltd, the purported purchasing entity of the property – exhibit 3
Counts 6 – 12:
· documents submitted with the application for the NAB loan signed by “Mike Doyle”
Count 3
Counts 6 to 12
Tendencies 4–6
Tendency 4: That the appellant had a tendency to obtain funds from people on the pretext of making investments in property and/or businesses or borrowing money to acquire property or businesses with the ulterior intention of not returning the money obtained (be it a return on the investment or the principal) to those people;
Tendency 5: That the appellant had a tendency to fail to purchase or acquire the property that had been agreed to be purchased or acquired between the provider of the funds and himself;
Tendency 6: That the appellant had a tendency to obtain and keep all funds obtained from lenders and did not provide any return to those investors (either by way of fulfilment of the contract, refunding the money lent or invested or making any interest payments).
Uncharged Incident 2:
· evidence of the transfer of $170,000 by Rosemary Grima to the Equity Management Solutions Pty Ltd bank account on 2 May 2014
· evidence of cash payments by Rosemary Grima to the appellant on or around May 2014
· evidence of the circumstances surrounding the transfer and payment of that money
· evidence that the property 13 Inverness Circuit Cecil Hills was not purchased and the money was not repaid
· evidence that part of the money was used for the deposit for 75 Sue Geh Circuit Nicholls and the rest was withdrawn as cash withdrawals or spent on personal items including bills, apparent household expenditure, parking and restaurants.
Counts 1, 2, 3 and 5
· evidence of the transfer of each of the amounts the subject of the charges to the Equity Management Solutions Pty Ltd IMB bank account and the circumstances surrounding those transfers
· evidence that in relation to each of the transfers the money was not invested in the properties or business as indicated by the appellant when the money was lent
· evidence that each of the particular properties or business associated with each transfer was not purchased
· evidence in relation to 75 Sue Geh Circuit Nicholls that the deposit had been paid prior to the appellant seeking money from Mr Catherall for the deposit of the premises
· evidence in relation to the logistics company that no money passed to Mr Zappia from the appellant at any stage in 2013-2014
· evidence of the disbursement of an amount equal to each of the transfers from the IMB Equity Management Solutions Pty Ltd bank account.
Count 1, 2, 4 and 5 (the Catherall accounts)
51. The substance of the Crown argument was that each tendency had significant probative value, relevant to the elements or issues of dishonesty, deception and falsification: see s 97 of the Evidence Act 2011 (ACT). Those were all matters that the Crown was required to prove beyond reasonable doubt, according to the elements of the different charges. Each was a topic for which the charges, taken in isolation, might have been difficult to establish. However, the more benign impression was better able to be overcome when the jury were presented with the different (and it may be said, more accurate) picture that emerged when the tendency evidence was included. A core issue was whether, at the time that Mr Fischetti obtained money from Mr Catherall, he ever had any intention of investing it as he had represented that he would do. This buttressed the evidence that such investment had never in fact taken place. In other words, this evidence contributed to the means by which the jury could conclude that it was not by accident or inadvertence that the investments had not taken place, but rather Mr Fischetti’s overall design, plan or scheme.
52. For evidence to be permitted to be used as tendency evidence (it may in some cases be admissible on other bases or for other purposes), the probative value must also substantially outweigh any prejudicial effect: see s 101(2) of the Evidence Act.
53. The substance of the limited objections advanced in any detail on behalf of Mr Fischetti by his ultimate trial counsel to the admission of the tendency evidence turned on the risk of unfair prejudice, the main objection to cross-admissibility being that it would stand in the way of severing the indictment. Refshauge J observed during the course of argument that the written submissions for Mr Fischetti focussed particularly, if not exclusively, on the uncharged acts. In answer to a question by Refshauge J as to what the asserted unfair prejudice was, counsel submitted that “[t]he unfair prejudice is that the values exceed – the values of the uncharged offences – uncharged acts”. A related objection was that Mr Fischetti would need to meet a bigger case than envisaged when regard was had to the indictment.
54. Refshauge J’s reasons, given on 1 April 2016, for admitting the tendency evidence were as follows:
In this matter I am satisfied that the Crown has given reasonable notice to the appellant, Frank John Fischetti, of its intention to adduce tendency notice under section 97 of the Evidence Act 2011 as set out in its notice dated 1 October 2015. I am further satisfied that the evidence will, by itself and having regard to other evidence to be adduced by the Crown, will have significant probative value. I am also satisfied that the probative value of the evidence intended to be adduced by the Crown substantially outweighs any prejudicial effect it may have on the appellant. Accordingly the application by application in proceedings dated 22 October 2015 to adduce the evidence set out in the notice dated 1 October 2015 as tendency evidence is granted.
55. Without the benefit of any submissions from Mr Fischetti to advance the argument as to why the tendency evidence should not have been admitted, the question falls to be determined by reference to the relevant principles articulated in the leading authorities relied upon by the Crown. They may be summarised as follows:
56. In IMM v The Queen [2016] HCA 14; 257 CLR 300, Gageler J summarised the nature of tendency evidence as follows (at [104], footnotes omitted):
The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused’s action or state of mind at the time or in the circumstances of the alleged offence.
57. Earlier in IMM v The Queen, the plurality addressed the topic of significant probative value (at [39]):
The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
58. Further at [44]-[46] in IMM v The Queen it was observed (footnotes included):
The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the inquiry is whether the probative value of the evidence may be regarded as “significant”.
The use of the term “probative value” and the word “extent” in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
Cross on Evidence [10th Aust ed (2015), p 763 [21252]] suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
59. Also on the topic of significant probative value, Gageler J in IMM v The Queen observed (at [103], footnotes included):
To warrant the description of having “significant probative value”, the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable. To the extent that similes can help elucidate the statutory measure of “significant”, the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue does not need to be “substantial” but does need to be “important” or “of consequence” [R v Lockyer (1996) 89 A Crim R 457 at 459; DSJ v The Queen (2012) 84 NSWLR 758 at 771-771 [57]-[60]]. The significance of the probative value of the evidence falls to be gauged having regard to the issues which would arise for the consideration of the jury in reasoning that the evidence made a fact in issue more or less probable and having regard to other evidence bearing on the existence of that fact adduced or to be adduced by the party seeking to adduce the evidence.
60. In Hughes v The Queen [2017] HCA 20; 344 ALR 187 (a different case to the NSWCCA case cited at [22] above), the majority observed (at [39]):
Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
61. The majority in Hughes v The Queen further observed as part of [40] that “[t]he particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.” Their Honours then identified a two-step process in determining whether significant probative value had been established (at [41]):
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
62. As to the barrier to the use of tendency evidence in s 101(2) of the Evidence Act, it was noted in Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 at [63] that:
The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact-finder will misuse the evidence in an unfair way by giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction: Festa v The Queen (2001) 208 CLR 593 at [51] per McHugh J, Lam at [31]-[32], R v Costa (No 1) [2015] ACTSC 63 at [44]. As noted above, tendency evidence usually raises disreputable conduct, ie contains inherent prejudice. But in many cases this prejudicial effect can be greatly reduced by appropriate jury directions. In particular cases, tendency evidence may have another prejudicial effect.
63. The prejudice advanced or otherwise identified as a reason not to admit, or rely upon, tendency evidence needs to be the focus of attention, rather than generalised comments or submissions about the “arousal of prejudice”, in order, in particular, that the issue of the risk of misuse can be identified and evaluated, and the capacity for a direction to the jury to overcome that prejudice assessed: R v SK; SK v R [2011] NSWCCA 292 at [34]. As that paragraph notes, such tendency evidence is not relevantly prejudicial “simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse”.
64. The topic of prejudice was addressed by the majority in Hughes v The Queen as follows (at [17]):
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
65. The tendencies the Crown relied upon were both highly specific and significantly probative on the central question of whether Mr Fischetti engaged in the conduct alleged, and whether he did so with the requisite state of mind. The evidence, both in respect of the charged and uncharged acts, was well able to establish the tendencies relied upon. It was highly probative and met, or otherwise obviated, any credible suggestion of a benign or otherwise legitimate explanation for his conduct, or that he lacked the fault elements that the Crown was required to prove. There is no room for finding error in Refshauge J’s concise, if not expansive, assessment that the tendency evidence had significant probative value.
66. As to prejudicial effect, it may be observed that most, if not all, evidence is led by the Crown for some kind of prejudicial effect, in the sense of contributing to the proof of the Crown case. Why else would it be led? The issue raised by s 101 of the Evidence Act is whether that prejudice is substantially outweighed by it probative value – that is, for the proper reason why the evidence is sought to be led in the first place. There was little or no basis for anything other than a positive response to that question. First and perhaps foremost, there was no emotional dimension to this evidence, such as may occur with uncharged acts in a sexual case. There was little or no scope for that sort of poisoning of the jury’s mind by way of impermissible reasoning of a kind that may be difficult to eliminate by a direction. Rather, the tendency evidence, despite its high probative value, was, as the Crown correctly submits, rather benign, arising out of purported business-related activities (which were, in substance and reality, a fiction). Most of the evidence was of charged acts. The evidence of the uncharged acts was very much of the same kind. There was little or no scope for impermissible reasoning, as opposed to highly probative permissible reasoning. Again, there is no room for error in Refshauge J’s assessment that the probative value outweighed its relevantly prejudicial effect.
67. This ground of appeal must therefore be dismissed.
Conclusion on the conviction appeal
68. The conviction appeal must be dismissed.
Sentence appeal
69. The sentence hearing occurred before the trial judge on 8 December 2016. Those proceedings were originally listed to take place on 10 August 2016, but an adjournment was granted to Mr Fischetti in order that he could seek psychiatric evidence for his sentence: see R v Fischetti (No 4) [2016] ACTSC 292. The material tendered by the Crown at the sentence hearing comprised the following six exhibits:
(a)Mr Fischetti’s criminal history.
(b)Sentencing remarks from 20 June 2003 in the Supreme Court of the ACT for charges arising out of the scheme to defraud a credit union by falsifying a stolen bank cheque for $252,500 and then transferring the proceeds of that cheque into other accounts and withdrawing amounts from automatic teller machines, which resulted in about $120,000 being withdrawn before the facility to withdraw the payments was stopped. The sentencing judge found that this took place over an Easter weekend and to get the maximum opportunity to draw down upon the cheque before the facility was shut down or the cheque dishonoured. This resulted in a sentence of three years and six months imprisonment for making a false instrument and a concurrent sentence of three years and four months imprisonment for the charge of using a false instrument.
(c)Sentencing remarks in the District Court of New South Wales on 27 November 2003 following a guilty plea to 7 offences of making a false instrument and one of money-laundering, with a further 24 offences being taken into account on a schedule. The charges on indictment arose out of a fraud practised on a bank by the manipulation of an internal banking procedure set up for the transfer of debits and credits between accounts held by customers. The sentencing judge said that he would normally have been sentenced to imprisonment for four years on the first six counts, but this was reduced to a period of two years by reason of early guilty pleas and cooperation with the authorities and was partially cumulative upon the sentences he was already serving as mentioned above, with a non-parole period of 12 months. For the money-laundering charge, the sentencing judge said that the sentence would ordinarily be imprisonment for a period of six years, which was reduced to three years on account of the early guilty plea and cooperation with authorities with a non-parole period of 18 months. The judge, wrongly as it turned out, found special circumstances in there being strong prospects of rehabilitation.
(d)A nominal pre-sentence report, which recorded that Mr Fischetti was pleasant and engaging in conversation, but declined to provide information for the report due to his pending appeal of the guilty verdicts.
(e)Recordings and transcripts of post-guilty verdict telephone calls by Mr Fischetti from prison.
(f)A statement from Mr Catherall.
70. Exhibits tendered on behalf of Mr Fischetti comprised an ASIC extract for a company, two medical certificates, a psychiatric report and a deed of some description.
A number of witnesses were called to the sentence hearing including Mr Catherall, a Mr Matthew Smith and Mr Fischetti’s wife. Mr Catherall gave evidence that the offences had a severe impact on him and that he had to borrow money for the amounts given to Mr Fischetti. He had undergone counselling as a result of the offences.
72. The Crown filed written submissions on 18 September 2016, supplemented with short oral submissions at the sentence hearing on 8 December 2016. Counsel for Mr Fischetti made oral submissions at the sentence hearing on 8 December 2016.
73. The sentences were handed down on 14 December 2016. The factual findings were outlined as reproduced above at [11]. In particular, his Honour noted that Mr Fischetti had “cultivated a relationship … inducing Mr Catherall enthusiastically into implausible investments and then soothing his concerns with further untrue explanations when settlements did not occur” (see [59]). In relation to the conduct relating to the attempt to obtain the loan from the NAB, his Honour noted the degree of planning and sophistication involved and observed that Mr Fischetti “controlled and organised the venture” and that the scheme was almost successful. It may be observed by reference to the prior convictions referred to above that Mr Fischetti had extensive criminal experience in defrauding banks. His Honour found that there was no explanation for the offending other than “the motivation of financial gain” (at [61]).
74. The trial and sentencing judge:
(a)Noted that Mr Fischetti was 54 years of age, an undischarged bankrupt and in receipt of a carer’s allowance. His Honour referred to the psychiatrist’s report which included a diagnosis of a depressive illness based on the uncorroborated history given to him by Mr Fischetti. His Honour noted that some of that history was at odds with the true position, an example being his reporting about his criminal history. His Honour was therefore reluctant to give significant weight to the psychiatrist’s opinion in light of the history given by Mr Fischetti.
(b)Noted Mr Fischetti’s prior convictions for deception and fraud, including the sentences imposed and what was involved. His Honour observed that for the prior sentence in the Supreme Court of the ACT referred to above at [69(b)], the sentencing judge for that matter had described the offending as “a well-planned and substantially successful fraud”, with no moneys having been recovered. Mr Fischetti was the organiser of the scheme and carried the offences out with a 17-year-old co-offender.
(c)Also referred to the second sentence referred to above at [69(c)] in the District Court of New South Wales, which involved a fraud on the Commonwealth Bank involving $1,919,867, of which only $395,855 was recovered. The offending involved Mr Fischetti striking up an association with an employee of the bank and obtaining insider information in relation to banking procedures, which was followed by Mr Fischetti obtaining 20 sets of blank office debit and entry forms which he then used to obtain the money.
(d)Paid little regard to the various traffic matters contained in Mr Fischetti’s criminal history and noted that his prior dishonesty record disentitled him to any leniency. His Honour said that he could not find any great chance of rehabilitation, noting the extensive history of deception and fraud. His Honour noted that Mr Fischetti had expressed no contrition or remorse, characterising the reimbursement to Mr Catherall of some $70,000 to be in self-interest at the heel of him facing punishment.
75. The Crown’s submissions conveniently summarise the sentences imposed as follows:
Counts
Incident date
Charge
Maximum penalty
Sentence
1.
Between 20 November 2013 and 15 December 2013
Obtain property by deception – s 326 of the Criminal Code 2002 [(ACT)]
10 years imprisonment, a fine of $140,000.00 or both
Convicted and sentenced to imprisonment for 21 months commencing on 30 May 2016 and ending on 28 February 2018
2.
Between 18 December 2013 and 16 January 2014
Obtain property by deception – s 326 of the Criminal Code 2002
10 years imprisonment, a fine of $140,000.00 or both
Convicted and sentenced to 18 months’ imprisonment, commencing on 30 May 2016 and ending on 29 November 2017
4.
Between [1 May 2014 and 28 May 2014]
Obtain property by deception – s 326 of the Criminal Code 2002
10 years imprisonment, a fine of $140,000.00 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 30 May 2016 and ending on 29 November 2017
5.
Between [11 June 2014 and 14 June 2014]
Obtain property by deception – s 326 of the Criminal Code 2002
10 years imprisonment, a fine of $140,000.00 or both
Convicted and sentenced to 9 months’ imprisonment commencing on 30 May 2016 and ending on 28 February 2017
6.
Between 4 March 2014 and 8 August 2014
Attempt to obtain financial advantage by deception – s 332 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 3 years and 3 months’ imprisonment commencing on 30 November 2016 and ending on 28 February 2022
7.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
8.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
9.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
10.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
11.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
12.
Between 4 March 2014 and 8 August 2014
Use false document – s 347 Criminal Code 2002
Imprisonment for 10 years, a fine of $140,000 or both
Convicted and sentenced to 18 months’ imprisonment commencing on 1 March 2018 and ending on 31 August 2019
76. The aggregate sentence was therefore for a period of five years, nine months and 27 days commencing on 30 May 2016 and finishing on 28 February 2022. His Honour imposed a non-parole period of three years and three months, commencing on 30 May 2016 and ending on 29 August 2019.
Manifest excess alleged in respect of counts 1 and 6
77. The Crown relies upon the following well-established principles that attach to a sentence appeal ground of manifest excess:
(a)An assertion of manifest excess challenges what is a quintessentially discretionary decision, the preservation of which is of vital importance to the administration of justice: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Monfries v R [2014] ACTCA 46; 245 A Crim R 80; 68 MVR 385 at [20]-[23], endorsed in Singh v R [2015] ACTCA 65 at [55]. The passage in Lowndes at [15] is worth reproducing [footnotes included]:
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [[1996] 2 VR 520]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
(b)In Dalton v The Queen [2015] ACTCA 48, the principles were summarised by this Court as follows at [18]:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen [[2014] HCA 2; 253 CLR 58;] 305 ALR 323 at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
(c)It is not enough to establish that a sentence is manifestly excessive such that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61]. In Monfries, this Court stated (at [22]-[23]):
Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty: Markarian v R [[2005] HCA 25;] (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence and the subjective circumstances of the offender are critical to determining whether a sentence lies within the available range.
In support of a case of “manifest excess”, an appellant should identify matters that support a conclusion (or necessary inference) of error: R v Campbell [2010] ACTCA 20 at [32], R v Thorn [2010] ACTCA 10 at [33].
78. There has not been any identification of error by Mr Fischetti apart from the bare sentence appeal grounds. The Crown has, however, assisted the Court with detailed submissions.
79. The Crown points to a number of key factors which are relevant to the enquiry as to whether or not the sentences imposed for counts 1 and 6 of the indictment were manifestly excessive, namely:
(a)the maximum penalties;
(b)the objective seriousness of the offences;
(c)Mr Fischetti’s prior offending and the role that should play when it came to considering the instant offending; and
(d)Mr Fischetti’s prospects of rehabilitation.
Maximum penalty
80. The maximum penalty for offence always requires careful attention: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31]. In this case, the maximum penalty of 10 years imprisonment and/or a fine of 1000 penalty units (being $140,000 at the time of the offence) for each of the offences charged makes it clear that the legislature considers the offences to be of an inherently serious nature.
Objective seriousness
81. The Crown points to the following features which indicate the objective seriousness of the charges in this case:
(a)The amount of money involved in a fraud and its impact on sentence was described in R v Hawkins (1989) 45 A Crim R 430 at 435:
… The amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality, for they are an indication of the extent to which a prisoner is prepared to be dishonest and to flout the law and to advance whatever are his own purposes.
This view was endorsed in R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376 at [40].
(b)“The amount of money, whilst not determinative of the seriousness of the criminality, is relevant to a degree and particularly where the offences are premeditated, committed on a number of separate occasions and involve a degree of planning, and are for substantial sums of money”: In R v Finnie [2002] NSWCCA 533 at [59].
(c)An offender’s “criminality was not dependent upon whether the banks had been successful in retrieving any part of the money. The amount fraudulently obtained was correctly identified and it was that amount which was to be reflected in the seriousness of the offences”: Stevens v R [2009] NSWCCA 260; 262 ALR 91 at [69].
(d)Whether the loss incurred as a result of a fraud is effectively irretrievable is a relevant consideration: R v Todorovic [2008] NSWCCA 49 at [19].
(e)The length of time over which the offences were committed is a relevant factor in determining criminality: Mungomery at [40].
(f)The motive for the offending is relevant: R v Mears (1991) 53 A Crim R 141 at 145, such that, generally speaking, if a fraud is based on greed rather than need, the sentence imposed should be longer. However, the absence of greed is not a matter of mitigation: Khoo v R [2013] NSWCCA 323; 237 A Crim R 221 at [78].
(g)The degree of planning and sophistication is an important factor in assessing criminality: R v Murtaza [2001] NSWCCA 336 at [15].
82. The Crown points out that a number of the factors listed above were present in relation to Mr Fischetti’s offending. In respect of each count, the offending was a course of conduct which occurred over an extended period of time, involved a high degree of planning and sophistication (especially with respect to the attempt to gain the $1.4 million loan from the NAB) and was clearly motivated for his personal gain and greed. The Crown suggests, correctly, that Mr Fischetti’s offences could aptly be described as they were in De Angelis v R [2015] NSWCCA 197 at [47], quoting with approval the characterisation given by the sentencing judge in that case that the fraudulent enterprise:
… required hard work, coordination, preparation, perseverance, extravagance, ruthlessness, exploitation of friendships, deviousness, cunning, heartlessness and intelligence.
Their Honours also approved of the sentencing judge describing the conduct as “predatory”, which could similarly be ascribed to the conduct of Mr Fischetti.
The Crown points out that in respect of attempting to obtain the loan from the NAB, this involved a sophisticated and coordinated plan, including the registration of a company, which was arranged at the request of Mr Fischetti, negotiation to purchase the property which would involve months of correspondence and emails amongst various parties who did not appreciate the fraudulent nature of the purchase, engaging a solicitor, the creation of documents submitted to the NAB, the creation of a number of other supporting letters, the emailing of the six fraudulent documents on Mr Fischetti’s behalf, and a number of other steps.
84. In relation to the money involved, the Crown points out that a total of $195,000 was dishonestly obtained from Mr Catherall. Notwithstanding the repayment of $70,000 with the assistance of Mr Smith, Mr Fischetti is an undischarged bankrupt serving a lengthy jail sentence, such that the prospects of Mr Catherall being fully repaid were virtually none. The Crown submits that the amount in question with respect to Mr Catherall is significant when it is considered that it was obtained from an individual person who was a small family business owner, who could not even afford all of the money that Mr Fischetti sought from him.
85. In relation to the $1.4 million loan from the NAB, while this loan was not paid by the bank, it was required to devote resources to investigating the fraud. The loan was in fact approved and it was only due to the intervention of the police that it did not proceed. The amount involved in this respect is therefore significant with the costs of such frauds upon financial institutions being born not just by those institutions, but also their shareholders and customers.
Prior offending
86. The Crown points out that Mr Fischetti has a significant history of relevant offending. The Crown summarised his convictions for fraud-related offences as including the following:
Year Court Offence Sentence 1980
ACTMC
Forge, utter, larceny
Aged 19. Sentence – GBO [good behaviour order], 6 mths imprisonment suspended sentence on the utter offence
1986
ACTMC
Forge, utter
GBO
2003
ACTSC
Make false instrument, use false instrument
Convicted and sentenced to 3 years and 4 months from 20/6/03 – non parole period of 16 months from 20/6/03 to 19/10/04
2003
NSWDC
Engage in money laundering, make false instrument x 7
Total sentence – 3 years commencing 19/10/04 and concluding on 18/10/07 – non-parole period 18 months 19/10/04 to 18/4/06
87. As the Crown points out, Mr Fischetti’s first fraud conviction took place in 1980 when he was only 19 years of age. In 2003, he was sentenced to imprisonment for a total of four years and four months from 20 June 2003 to 18 October 2007, including the non-parole period, for New South Wales and ACT offences. Both the 2003 sentences in the ACT and in New South Wales related to sophisticated frauds. Both demonstrated Mr Fischetti had engaged in similar plans, and sophisticated and successful fraudulent conduct for his own personal gain in the past.
88. The Crown submits that Mr Fischetti’s criminal antecedents were highly relevant to his prospects for rehabilitation, as well as requiring greater attention to the principles of denunciation, deterrence and protection of the community in sentencing. As was pointed out in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477:
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. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
Prospects of rehabilitation
89. The Crown points out that the sentencing judge had noted that on the evidence before his Honour, there was a limited prospect of rehabilitation. I agree with the Crown that this finding is unimpeachable. Having regard to Mr Fischetti’s relevant and similar past criminal offending, his lack of remorse and the lack of any true mitigating circumstance or explanation for the offending (other than the psychiatric evidence, which the trial judge was reluctant to give significant weight to for reasons that cannot be impeached), that his prospects of rehabilitation could properly be described as poor, and even poorer without condign sanction this time.
Conclusion on manifest excess
90. In light of all the circumstances, the Crown submits that none of the sentences complained of could be described as manifestly excessive. That is a fair and proper characterisation. As the Crown points out, Mr Fischetti’s offending was serious and there was little leniency that could be afforded to him in all circumstances. Given the objectively grave and serious nature of the offending, the Crown fairly characterises the sentences imposed as bordering on benevolent.
91. The Crown did not specifically advert to specific and general deterrence. The former is only doubtful in this case because Mr Fischetti seems to be incorrigible, yet he may still be deterred if the consequences are understood by him to be significant enough. General deterrence remains important. Others of a like mind might think twice if the sanction is substantial enough. As was observed in R v Tait and Bartley (1979) 46 FLR 386 at 399:
When an organized, costly and complex offence is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead.
92. Put simply, there is not a skerrick of substance to the contention that any of the sentences imposed on Mr Fischetti were even especially harsh, let alone manifestly excessive.
Totality by way of consecutive/concurrency error alleged by way of the sentence structure in respect of counts 6 to 12
93. As the Crown points out, the sentencing judge was fully aware of the need for totality, observing at [85]:
I have had regard to the principles set out in Mill v The Queen [1988] HCA 70; 166 CLR 59, 62-63, Pearce v The Queen [1998] HCA 57; 194 CLR 610, 623-624 and the recent observations in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [61]-[65] in the process of both structuring the sentences and then reviewing the overall result to determine whether that result adequately reflects the totality of the criminality involved.
94. Moreover, the complexity of structuring multiple sentences requires appellate restraint, with this Court observing in Le Clair v The Queen [2017] ACTCA 19 at [56]:
Concurrency and accumulation is a tool that enables an adjustment to the structuring of sentences to ensure that each individual sentence correctly reflects the criminality of the offence to which it relates and, at the same time, the total sentence reflects the criminality of all offences. There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: R v TW [2011] ACTCA 25; 6 ACTLR 18 per Penfold J at [83], applied in Zdravkovic v The Queen [2016] ACTCA 53 at [70]. See also Hall and Barker at [42], where the Court referred to totality as “part of the instinctive synthesis involved in the sentencing process.”
95. The Crown provided a graphic representation of the sentences imposed, reproduced at Appendix A to this judgment.
96. No error is apparent in the structuring of the sentences. The structure and thereby totality of the sentences were entirely appropriate in the circumstances. Accordingly, this aspect of the sentence appeal grounds must fail.
Conclusion on the sentence appeal
97. The sentence appeal must be dismissed.
Conclusion overall
98. Both appeals are dismissed.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Mossop and Bromwich. Associate: Date: 13 February 2019 |
APPENDIX A:
| Year | May | Jun | Dec | Feb | Jun | Nov | Dec | Feb | Mar | Jun | Nov | Dec | [Feb] | Aug | Dec | Jun | Dec | Feb | Dec | Feb | Aug | Dec |
| 2016 | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 | ||||||||||||||||
| Head sentence: 5 years 9 months & 27 days: 30.05.2016 – 31.02.2022 | ||||||||||||||||||||||
| Count 6 | 8 mths [and 29 days]* | Count 6: 3 years and 3 mths: 30.11.18 – 28.02.22 | ||||||||||||||||||||
| Count 12 | Count 12: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 11 | Count 11: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 10 | Count 10: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 9 | Count 9: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 8 | Count 8: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 7 | Count 7: 18 mths 1.03.18 – 31.08.19 | |||||||||||||||||||||
| Count 5 | Count 5: 9 mths 30.05.16 – 28.02.17 | |||||||||||||||||||||
| Count 4 | Count 4: 18 mths 30.05.16 – 29.11.17 | |||||||||||||||||||||
| Count 2 | Count 2: 18 mths 30.05.16 – 29.11.17 | |||||||||||||||||||||
| Count 1 | Count 1: 21 mths 30.05.16 – 28.02.18 | |||||||||||||||||||||
| Non-parole period: 3 years and 3 months: 30.05.16 – 29.08.19 | ||||||||||||||||||||||
| May | Jun | Dec | Feb | Jun | Nov | Dec | Feb | Mar | Jun | Nov | Dec | Feb | Aug | Dec | Jun | Dec | Feb | Dec | Feb | Aug | Dec | |
| Year | 2016 | 2017 | 2018 | 2019 | 2020 | 2021 | 2022 | |||||||||||||||
* The sentence on Count 6 commenced 8 months after the sentences imposed on Counts 7 – 12
3
0
2