R v Andre Vincent Di Cioccio (Sentence) - [2012] VSC 28

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0186
S CR 2011 0138
S CR 2011 0137

THE QUEEN

ANDRE VINCENT DI CIOCCIO

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 – 31 October 2011, 2–4, 7–11, 14 November 2011, 16 & 20 December 2011
DATE OF SENTENCE:	7 February 2012
CASE MAY BE CITED AS:	R v Andre Vincent Di Cioccio (Sentence)
MEDIUM NEUTRAL CITATION:	[2012] VSC 28

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CRIMINAL LAW – Sentence – Obtain financial advantage by deception (s 82) Crimes Act 1958 (Vic)) – Solicitor causing a deficiency in a legal trust account, and failing to pay or deliver trust monies, without reasonable excuse (s 3.3.21 Legal Profession Act 2004 (Vic)).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Shaw Mr S Gelfand	Solicitor for the Office of Public Prosecutions
For the Accused	Mr P Higham	Matthew White & Associates

HIS HONOUR:

Introduction

Andre Vincent Di Cioccio, you pleaded guilty to eight counts of causing deficiency in a legal trust account without reasonable excuse (counts 1, 2, 3, 9, 10, 11, 12 and 13 on indictment A11148849.2 - “the first plea indictment”) and two counts of failing to pay or deliver trust monies without reasonable excuse (counts 7 and 8 on that same indictment).

You also pleaded guilty to five counts of obtaining financial advantage by deception (counts 4, 5, 6 and 14 on the first plea indictment, and count 1 on indictment A11148849.4 – “the second plea indictment”), and were found guilty by a jury of two further such counts (counts 1 and 2 on indictment C1007368 – “the trial indictment”). Finally, you pleaded guilty to one count of attempting to obtain financial advantage by deception (count 15 on the first plea indictment).

Circumstances of the offences

I will describe the circumstances of the offences in chronological order.

Since May 2001 you have been an Australian legal practitioner as defined in s 1.2.3(a) of the Legal Profession Act 2004 (Vic). You conducted a legal practice under the name Andma Legal which, at the relevant times, operated from premises at 19 McKillop Street, Melbourne.

Spouse/Tubig transactions

For a number of years prior to 2006 Ian Spouse had been one of your clients. In April 2006 he engaged your firm to provide advice in relation to the potential purchase of a commercial warehouse property in Oakleigh South. You advised him to purchase the warehouse in the name of a corporate trustee, and further advised him to forward the deposit monies for the purchase to the firm to be held on trust pending the purchase. On 27 April 2006 one Uldarico Tubig, a business associate of Spouse, transferred $100,503.15 to the firm’s trust account held with the Commonwealth Bank of Australia (CBA) as part of the intended purchase monies for the warehouse. That money was trust money within the meaning of the Legal Profession Act.

The next day, without reasonable excuse, you transferred that money…

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.

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Details

Case: [2012] VSC 28
Decision Date: 7 February 2012

CaseChat Overview and Summary

In the matter of R v Andre Vincent Di Cioccio, the defendant faced sentencing in relation to charges of obtaining financial advantage by deception and misconduct under the Legal Profession Act 2004 (Vic). The court was tasked with determining an appropriate penalty for these offences, which involved the defendant's misuse of a legal trust account and failure to deliver trust monies. Di Cioccio was found guilty of multiple counts of obtaining financial advantage by deception under the Crimes Act 1958 (Vic), and of breaching professional conduct rules by causing a deficiency in a legal trust account and failing to pay or deliver trust monies without reasonable excuse under the Legal Profession Act 2004 (Vic).

The primary legal issues before the court were the appropriate sentencing principles to apply and the weight to be given to various aggravating and mitigating factors. The court had to consider the nature and circumstances of the offences, including the extent of Di Cioccio's deception and the impact of his actions on his clients and the legal profession. Additionally, the court needed to balance the aggravating factors, such as the breach of trust and professional misconduct, against any mitigating factors, including the defendant's remorse and any personal circumstances that might warrant a reduced sentence.

The court determined that the offences were serious, involving significant breaches of trust and professional obligations. It found that the deception was premeditated and involved substantial financial gain at the expense of vulnerable clients. The court also considered the impact of the offences on the legal profession and the need to maintain public confidence in the administration of justice. After weighing the aggravating and mitigating factors, the court sentenced Di Cioccio to a period of imprisonment, reflecting the seriousness of the offences and the need for general deterrence. The specific length of the sentence was determined after considering the totality of the offending and the defendant's personal circumstances.

Orders