R v Beltrame

[2009] NSWSC 252

CITATION:	R v Beltrame [2009] NSWSC 252
HEARING DATE(S):	27 March 2009
JUDGMENT DATE :	3 April 2009
JUDGMENT OF:	Mathews AJ
DECISION:	For offence of doing an act with intent to persuade witness to give false evidence, a fixed term of imprisonment of one year, commencing on 8 February 2007 and expiring on 7 February 2008. For offence of forgery, imprisonment consisting of a non-parole period of two years and four months, commencing on 8 August 2007 and expiring on 7 December 2009, with an additional term of two years and two months, expiring on 7 February 2012.
CATCHWORDS:	CRIMINAL LAW - guilty plea to offence of forgery - guilty verdict on charge of persuading a witness to give false evidence - separate but interrelated offences - partial cumulation of sentence
CATEGORY:	Sentence
PARTIES:	Regina (Crown) Daniela Beltrame (Offender)
FILE NUMBER(S):	SC 2008/1454
COUNSEL:	E Wilkins SC (Crown) M Austin (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) S O'Connor (Legal Aid Commission) (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Mathews AJ

Friday 3 June 2009

2008/1454 R v Daniela Beltrame

REASONS FOR SENTENCE

1 HER HONOUR: On 2 February 2009 Daniela Beltrame was arraigned on the following charges:

1. that on or about 26 April 2001 at Canley Heights in the State of New South Wales she murdered Ederino Beltrame.

2. that between 24 October 2000 and 30 April 2001, she forged a will purporting to be the last will of Ederino Beltrame, with intent to defraud.

3. that on 11 January 2007, at Narellan Vale she gave Loretta Appleyard a document containing reasons why she, Loretta Appleyard, should not give evidence adverse to Daniela Beltrame, with intent to persuade Loretta Appleyard, a witness in a Coronial Inquest into the death of Ederino Beltrame, to give false evidence.

2 The offender pleaded guilty to the second charge of forgery and not guilty to the first and third charges. A jury trial then proceeded. On Monday 2 March 2009 the jury returned a verdict of not guilty of the first charge and guilty of the third charge.

3 The offender therefore comes to be sentenced in relation to the second and third charges in the indictment.

4 The background of the matter is as follows. In April 2001 the offender was living in a house in Canley Heights with her father, Ederino Beltrame, her daughter, Romina, and her son, Fabio. Her older daughter, Loretta, had previously lived there until she got married on 8 April 2001, at which time she took her husband’s surname of Appleyard.

5 There were significant tensions in the relationship between the offender and her father. The offender had a younger brother John, who had been adopted by her parents when he was very young. Her father had always seemed to prefer John, and this was a source of friction between them. Mr Beltrame had routinely made provision for John in his wills, notwithstanding that John had been convicted of manslaughter and was serving a lengthy prison sentence.

6 On the morning of 26 April 2001, Mr Beltrame was found dead in his bed at home. He had suffered ill health for some time, and it was assumed by all concerned, including his general practitioners, that he had died of natural causes. In due course, the offender, through her solicitor, sought and was granted probate of Mr Beltrame’s estate. For this purpose she presented a will dated 7 April 2001, apparently signed by Ederino Beltrame and witnessed by the offender’s daughter, Loretta, and by a family friend, Giovanni Rossi. The will was written on a standard form, without the direct involvement of a lawyer. The will appointed Daniela Beltrame executrix and trustee and made her the sole beneficiary of the estate.

7 As we now know, the will was not signed by Mr Beltrame on 7 April 2001. Rather, the offender forged her father’s signature on the will. A few days after his death she presented it to Loretta and asked her to sign it as a witness, which she did. Loretta did not know at the time that the will had been forged. She said that the signature appeared similar to her grandfather’s.

8 Later in 2001 significant questions emerged as to the authenticity of this will. Mr Beltrame had from time to time changed his will over the years. However, he had always done so through a solicitor and had always made provision for his son John.

9 Pursuant to these suspicions, listening devices and telephone intercepts were installed and the offender’s conversations with her two daughters were recorded. No seriously incriminating statements were recorded.

10 In February 2002 the offender went to Italy where she remained for about four years. She returned to Australia in 2006. After her return the suspicions as to the circumstances of her father’s death and the authenticity of his will were revived. An inquest into the death of Mr Beltrame was scheduled to take place early in February 2007.

11 In December 2006 the offender’s daughter Loretta received a subpoena to give evidence at the inquest. At Christmas she visited her mother and told her that she was proposing to tell the truth about the will at the inquest.

12 On 11 January 2007 Loretta was at her home at Narellan Vale when her mother arrived, having, unusually, parked her car some distance away. The offender presented her daughter with a lengthy document which she asked her to read immediately. That document was later extracted from the offender’s computer, and became an exhibit at the trial. It is a long document, comprising more than four pages of tightly spaced typing. As Loretta herself described it, it contained a considerable amount of emotional blackmail, warning Loretta of the dire consequences to herself, the offender and to other family members if she proceeded to do as she threatened. It was an extremely self-involved and self-pitying missive. In addition to the dire emotional consequences to family members, the document threatened serious legal consequences to Loretta, should she continue her planned course. These consequences were said to include extensive cross-examination as well as the real possibility that she herself would be arrested. Ultimately, the document pleaded with Loretta to remain silent. It was giving Loretta this document which founded the charge of doing an act with intent to persuade her to give false evidence.

13 After reading this document Loretta repeated to her mother that she was going to tell the truth at the inquest. Her mother then presented her with another document, which she asked her to sign. At that point Loretta asked her mother to leave, which she eventually did.

14 Subsequently, both Loretta and her sister Romina made statements to the police. Loretta’s statement related to the signing of the purported will, Romina’s to the circumstances of her grandfather’s death. In early February, shortly before the inquest was due to commence, the offender went to Queensland. She was arrested there on 8 February 2007 and brought back to New South Wales. She has been in custody ever since.

15 By far the more serious of the two offences committed by the offender is the forgery of her father’s will. For that offence a maximum penalty of 14 years imprisonment is stipulated. The offence of doing an act with the intention of persuading someone to give false evidence carries a maximum penalty of seven years imprisonment. The offence of forgery is aggravated in this case by the fact that it was part of a planned criminal activity and that it was committed entirely for financial gain. The attempt to persuade Loretta to give false evidence at the inquest was also aggravated by being part of a planned criminal activity.

16 It is relevant here to mention the financial consequences to the offender of the forgery of her father’s will. The last genuine will written by Mr Beltrame was in October 2000. In that will, Mr Beltrame left his son John the sum of $30,000 and the remainder of his estate to the offender. Accordingly, the amount in fact gained by the offender as a result of this forgery was $30,000, hardly a huge amount of money. The house at Canley Heights constituted virtually the only asset in the estate. This had been sold and the proceeds spent by the offender before the offence came to light.

17 The offence of “persuasion” to give false evidence is a lesser offence in the eyes of the law, but is still a serious offence, involving the attempted subversion of the course of justice. The offender’s daughter, Loretta, suffered significant emotional distress after reading the letter handed to her by her mother. I do not want to belittle the extent of her distress when I say that no other harm was done to any other person as a result of this offence. Loretta, to her credit, proceeded to give evidence against her mother – no easy feat – which directly led to the offender pleading guilty to the more serious forgery charge.

18 Mitigating factors on sentence are that the offender has no record of previous convictions and therefore comes before the court as a person of good character. She is now 55 years old, and at this stage it must be assumed that she will be unlikely to re-offend. A significant mitigating factor in relation to the forgery offence arises from her plea of guilty. It was a relatively late plea, and considerable evidence relevant to this charge was in any event given during the offender’s murder trial. Nevertheless, she must be given some discount for the utility value of her plea. In the circumstances I propose to deduct 10% from the sentence I would otherwise have imposed for this offence.

19 Psychiatric reports were tendered on sentence from Dr Westmore, on behalf of the Crown, and Dr Nielssen on behalf of the offender. Dr Westmore examined the offender in July 2008. He also had access to Dr Nielssen’s report of August 2007 relating to the offender. Dr Westmore’s “provisional diagnosis” was that the offender had suffered episodes of depression in the past. He had not obtained sufficient history to enable him to diagnose a bi-polar affective disorder, but said that she was not suffering from that condition at the time he saw her. She had an adjustment disorder with symptoms of depression and anxiety. As to the offender’s personality profile, Dr Westmore considered that feelings of insecurity and probably low levels of self esteem were likely to be features of her general characteristics.

20 Dr Nielssen’s report, dated 24 March 2009, followed interviews with the offender in June 2007 and again in June 2008. Dr Nielssen considered that the offender suffered from both bi-polar mood disorder and from a personality disorder. The offender had been taking anti-psychotic and anti-depressant medication whilst in custody. Dr Nielssen concluded that what he described as her “abnormal personality style”, which remained evident after this treatment, was due to “enduring abnormal personality traits”. Dr Nielssen also made the following observation:

“A sense of entitlement and loss of a capacity for empathy with the needs of her children arising from the manic phase of a bi-polar disorder in a person with an underlying personality disorder is likely to have been a factor contributing to Ms Beltrame’s actions in forging her father’s will.”

A little later he said:

“Her written communications with her daughter around the time of the coronial inquiry also show signs of having been in a manic state. Hence her judgment and capacity to appreciate the consequences of her actions at that time may have been affected by the presence of an untreated bi-polar disorder.”

21 I should emphasise here that the offender through her counsel is not relying upon Dr Nielssen’s diagnosis or comments as mitigating factors on sentence. Rather, they provide some explanation for conduct which would otherwise appear inexplicable, particularly as they were committed by a person of prior good character.

22 The offender has expressed no remorse for these offences. I suspect that she still does not appreciate the extent of her moral culpability, particularly in relation to the forgery offence.

23 Taking all these matters into consideration, I would place both offences slightly, but not significantly, below the mid-line of objective seriousness.

24 As to the general purposes of sentencing, I consider that personal deterrence and the protection of the community can probably be put to one side. General deterrence remains a significant factor, particularly in relation to the forgery offence, as is the denunciation of the offender’s conduct.

25 The two offences are connected, in that the second offence was committed in an endeavour to escape apprehension for the first offence. However, it was committed many years later and it is of an entirely different nature. Accordingly, both counsel agree that the sentences for the two offences should be partially concurrent and partially cumulative.

26 Dr Nielssen recommended that the offender should continue treatment with mood stabilising medication under the supervision of a psychiatrist after her release from custody. In my view she will benefit significantly from a longer term of supervision than would normally attend the sentences I am about to impose. For this reason I consider that special circumstances exist which justify a departure from the statutory nexus between the non-parole period and the total sentence.

27 In order to achieve the appropriate level of accumulation of sentence, I propose to impose a fixed term in relation to the “persuasion” to give false evidence charge. I will then partially accumulate the sentence for the forgery charge. I believe that the final sentences reflect the overall criminality involved in these offences, having regard to all the relevant factors.

28 Daniela Beltrame, for the offence of doing an act with intent to persuade Loretta Appleyard to give false evidence, I sentence you to a fixed term of imprisonment of one year, commencing on 8 February 2007 and expiring on 7 February 2008.

29 For the offence of forgery, I sentence you to imprisonment consisting of a non-parole period of two years and four months, commencing on 8 August 2007 and expiring on 7 December 2009, with an additional term of two years and two months, expiring on 7 February 2012.

30 The total sentence for the two offences will therefore be five years, with a non-parole period of two years and ten months. The earliest date on which you will be eligible for release on parole will be 7 December 2009.

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