Legal Research
Cases
Porcaro v The Queen

Porcaro v The Queen

Case [2015] VSCA 244 9 September 2015

Dishonesty Offences

Breach of Trust

Sentence

Continuing Criminal Enterprise

Manifestly Excessive Sentence

Judicial Review

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0116

GIUSEPPE PORCARO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2015
DATE OF JUDGMENT:	9 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 244
JUDGMENT APPEALED FROM:	DPP v Porcaro (Unreported, County Court of Victoria, Judge Lacava, 15 May 2015)

---

CRIMINAL LAW – Application for leave to appeal – Sentence – Dishonesty offences – Ponzi scheme involving over $4.7million – Offending occurred over a period of almost 7 years – Breach of trust involving many victims – Offending perpetrated under cloak of legitimacy and authority offered by the applicant being a law clerk in a law firm – Whether total effective sentence of 8y 6m with non-parole period of 5y 6m is manifestly excessive – Whether the judge erred by sentencing the applicant as a continuing criminal enterprise offender on one charge – Amendment to Record of Orders – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Chadwick QC	Hymans Solicitors
For the Crown	Mr R Gibson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

Giuseppe Porcaro, the applicant, was a law clerk. Between February 2002 and December 2008, he committed a large number of offences of dishonesty.

On 8 May 2015, he pleaded guilty in the County Court to fifty separate offences charged in two indictments. In the manner we will later set out, on 15 May 2015 the judge sentenced the applicant to a total effective sentence of eight years and six months’ imprisonment, and fixed a non-parole period of five years and six months’ imprisonment.

The applicant sought leave to appeal against sentence on two grounds as follows:

1. The learned sentencing Judge erred by sentencing the applicant as a continuing criminal enterprise offender on charge 9 when it was not open to him to do so. Correction of the records of Court with regard to charge 9 is sought.
2. The non parole period and total effective sentence are manifestly excessive in that:
(a) as a result of his Honour having formed the view of the applicant that,
‘In my view, having regard to your background and limited education and work experience, by working with Angeleri, you were engaging in work that was way out of your league. You had neither the qualifications or experience to either say “no” or to stop. Once the deception was underway, you went along with it as it spiralled out of control.’
his Honour did not give sufficient weight to this finding; and
(b) his Honour placing insufficient weight upon the opinion of Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, that the applicant was suffering symptoms of an adjustment disorder with mixed anxiety and depressed mood at the time (he) offended. The adjustment disorder developed in response to work related financial stress.

For the reasons that follow, we would refuse leave to appeal.

The Indictments and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Porcaro v The Queen

Details

AGLC: Giuseppe Porcaro v The Queen [2015] VSCA 244
Case: [2015] VSCA 244
Decision Date: 9 September 2015

CaseChat Overview and Summary

The case of Porcaro v The Queen involved the applicant seeking leave to appeal against his sentence for a series of dishonesty offences. The applicant had orchestrated a Ponzi scheme that defrauded numerous victims out of over $4.7 million over a period of almost seven years. The offending was carried out while the applicant was a law clerk in a law firm, exploiting the trust and authority that came with his position. The applicant's sentence was an effective term of eight years and six months, with a non-parole period of five years and six months. The applicant argued that the sentence was manifestly excessive and that the judge had erred by sentencing him as a continuing criminal enterprise offender on one charge.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the judge erred in sentencing the applicant as a continuing criminal enterprise offender on one charge. The court had to consider the nature and extent of the offending, the breach of trust involved, and the impact on the victims, alongside the principles of sentencing for dishonesty offences and the operation of the continuing criminal enterprise provisions. The applicant's argument that the sentence was manifestly excessive required the court to assess the proportionality of the sentence in light of the offending and the applicable legal principles.

In considering the application, the court examined the severity and nature of the offending, which involved a substantial amount of money and multiple victims over a significant period. The court noted the breach of trust by the applicant, who was in a position of authority and used that position to perpetrate the scheme. The court found that the sentence, while severe, was not manifestly excessive, taking into account the seriousness of the offending, the need for deterrence, and the impact on the victims. The court also held that there was no error in the judge's sentencing of the applicant as a continuing criminal enterprise offender on one charge, as the evidence supported this classification. The application for leave to appeal was refused.

No amendment to the Record of Orders was made, and the applicant's application for leave to appeal was dismissed.

Orders