R v De Stefano - [2003] VSC 68

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1417 of 2002

THE QUEEN

FRANK DE STEFANO

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JUDGE:	KELLAM J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2002; 3 and 4 February 2003
DATE OF SENTENCE:	13 March 2003
CASE MAY BE CITED AS:	R v De Stefano
MEDIUM NEUTRAL CITATION:	[2003] VSC 68

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CRIMINAL LAW – Sentence – Multiple counts of theft from clients by accountant – Total sum stolen $8.6 million – Plea of guilty – “Gambling addiction”.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M.M. Williams	Office of Public Prosecutions
For the Accused	Mr P.A. Dunn Q.C. with Miss N. Gobbo	Lewenberg and Lewenberg

HIS HONOUR:

You, Frank De Stefano, have pleaded guilty before me to 12 counts of theft. Each such count carries a maximum penalty of 10 years’ imprisonment.

During the period between 1978 and 19 April 2000 on which date you surrendered yourself to the authorities, you were conducting an accountancy practice in Geelong. You became a well respected member of the Geelong community during that period. You were a councillor for the City of Geelong between 1983 and 1993 and for part of that time you served as Deputy Mayor and Mayor of that City. In 1988 you were awarded the Order of Australia medal for your service to the migrant community in Geelong with whom both before and after 1998 you had a close involvement.

Accordingly, you were both well known to and trusted by many members of the Geelong community.

At least partly for those reasons of familiarity and trust, many members of the Geelong community relied upon you for financial advice and entrusted their savings to you for prudent financial management.

Thelma Farey and her now deceased husband were two such people. You had acted as accountant and financial manager for Mr and Mrs Farey for some years before Mr Farey’s retirement in 1995. The Fareys owned property at Geelong. They decided to retire to the warmer climate of Cairns for both health and lifestyle reasons. These issues were discussed by them with you. Mr Farey arranged that you would hold in trust the sums from the sale of assets held by him in Victoria. Mrs Farey, in her statement contained in the depositions, states that she and her husband placed “complete trust” in you. Between 1994 and August 1995 the Fareys deposited the sum of $524, 052.70 into what they believed was a trust account held by you. Those funds were to be held by you to finance the Fareys’ retirement in Queensland which included the purchase of land and the construction of a house at Trinity Beach.

It should be noted that in 1988 you and three others joined in the redevelopment of a site on the Gold Coast and built a restaurant there. The four of you borrowed $1.5 million from the National Australia Bank and gave personal guarantees in respect of that loan. The restaurant commenced operation…

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 R v De Stefano

Details

AGLC: R v De Stefano [2003] VSC 68
Case: [2003] VSC 68
Decision Date: 13 March 2003

CaseChat Overview and Summary

In the matter of R v De Stefano, the High Court of Australia heard an appeal concerning the sentencing of an accountant who had pleaded guilty to multiple counts of theft from his clients. The defendant, who had stolen a total of $8.6 million, argued that his actions were driven by a gambling addiction, which was a mitigating factor in his sentencing. The trial court had imposed a sentence of imprisonment, which the defendant challenged as being excessive.

The primary legal issues that the court had to address were whether the trial judge correctly assessed the mitigating effect of the defendant's gambling addiction and whether the sentence imposed was proportionate to the seriousness of the crimes committed. The court also had to consider whether the trial judge had appropriately exercised his discretion in determining the sentence.

The High Court held that the trial judge had correctly acknowledged the mitigating effect of the defendant's gambling addiction but found that the sentence imposed was too lenient. The court noted that the crimes were of a high degree of seriousness, given the total amount stolen and the breach of trust by a professional accountant. The High Court determined that a more severe sentence was warranted to ensure general deterrence and to reflect the community's sense of justice. Consequently, the appeal was allowed, and the case was remitted to the trial court for re-sentencing.

The final orders of the court were that the appeal be allowed, the sentence of imprisonment imposed by the trial court be set aside, and the matter be remitted to the trial court for re-sentencing, taking into account the appropriate weight to be given to the mitigating factors and the principles of general and specific deterrence.

Orders