R v Fischetti (No 4)
[2016] ACTSC 292
•4 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fischetti (No 4) |
Citation: | [2016] ACTSC 292 |
Hearing Dates: | 4 October 2016 |
DecisionDate: | 4 October 2016 |
Before: | Robinson AJ |
Decision: | 1. Note that the offender proposes to rely upon a report from Dr Olav Nielssen on the further sentencing hearing. 2. Direct that the parties furnish to my associate by 11 October 2016 a list of December 2016 dates suitable to counsel for the further hearing incorporating into those dates the potential need of Dr Olav Nielssen to be available for cross-examination on those dates. 3. Direct that the service of the report of Dr Olav Nielssen on the Crown be undertaken by 15 November 2016. 4. Adjourn the matter to a date to be fixed in December 2016. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – adjournment of sentence hearing |
Legislation Cited: | Criminal Code 2002 (ACT) ss 326, 332, 346, 347 |
Cases Cited: | Landsman v R (2014) 88 NSWLR 534; 247 A Crim R 525 |
Parties: | The Queen (Crown) Frank John Fischetti (Offender) |
Representation: | Counsel Mr T Buckingham (Crown) Mr Smith (Offender) on 4 October 2016 |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co Lawyers (Offender) on 4 October 2016 | |
File Numbers: | SCC 95 of 2015 |
ROBINSON AJ:
This case has been listed for directions regarding the continuation of the hearing on sentence. It is necessary to recount some background to properly crystallise the issues.
On 4 April 2016, Frank John Fischetti, “the offender”, stood trial before a jury on an indictment containing, for present purposes, 13 fraud or dishonesty counts under ss 326, 332, 346 and 347 of the Criminal Code 2002 (ACT). I directed the jury to return a verdict of not guilty in respect of the 13th count shortly after the trial commenced. The remaining counts were the subject of a lengthy trial occupying 38 sitting days.
On 30 May 2016, the jury returned verdicts of guilty on 11 of the remaining 12 counts. On that day, then counsel for the accused applied for bail and the provision of a Pre-Sentence Report from ACT Corrections.
After hearing some short evidence, I did not accede to the application for bail and remanded the offender in custody. I ordered a Pre-Sentence Report and arrangements were put in hand to adjourn the proceedings for a date approximately six or seven weeks away to take account of the usual time necessary to prepare the report.
On 10 August 2016, the proceedings were resumed when new counsel appeared for the offender. Further evidence was taken on sentence; the Crown directed my attention to parts of her written submissions and, relevantly for present purposes, a Pre-Sentence Report from ACT Corrections dated 4 August 2016 was tendered on the sentencing hearing. The author reported that the offender was seen at the Alexander Maconochie Centre where the offender was pleasant and engaged in conversation but that he declined to provide information for the report due to the offender’s current appeal against the guilty verdicts.
I interpolate to record here that it is, of course, the offender’s choice not to co-operate with ACT Corrections Services. In Landsman v R (2014) 88 NSWLR 534 there is a wide ranging discussion concerning “post-trial” admissions. As the cases cited there demonstrate, different considerations may apply to the different appeal regimes. The discussion in Landsman at [45] to [63] demonstrates that the offender would be acting rationally in having regard to the possibility of any admission made by him to ACT Corrections being used against him in (a) the application of the proviso by the Court of Appeal, (b) if a question arose whether the appropriate order of the Court of Appeal was for an acquittal or a retrial and (c) the tender of that admission in any retrial.
When I raised the Landsman situation with counsel for the offender he told me, upon instructions, that there must have been some misunderstanding between the Service and the offender. The offender was willing to co-operate notwithstanding that an appeal had been lodged.
At this point in time I do not need to resolve this issue.
On 10 August 2016, counsel for the offender sought an adjournment of the further proceedings to acquire a psychiatric report as to the mental condition of the offender. Counsel pointed out that, from the materials already tendered on sentence, it is apparent that the offender had been diagnosed with a provisional diagnosis of a somatoform disorder in 2003 by Dr Bruce Westmore, a forensic psychiatrist. Counsel explained that he had only just become aware of the earlier report.
10. I was given an indicative time in which this could be done and the parties were to make arrangements with my associate to fix the precise date. I also gave the Crown leave to recast and amplify her written submissions by 31 August 2016. Later I granted a request by email correspondence from my associate for an extension to 16 September 2016 for this to be done.
11. Having received the Crown’s written submissions I asked my associate to enquire into the progress of the psychiatric report on 16 September 2016. Mr Bevan, as solicitor for the offender replied on 20 September 2016 that he hoped to see Mr Fischetti on Thursday [22 September 16] and would respond.
12. On 22 September 2016 a response came from Mr Bevan. It read in part:
A psychiatric report has not yet been obtained. It was arranged shortly after the adjourned date but procedural difficulties resulted in it not occurring. Since then funding difficulties have not permitted us to arrange another appointment. We have been instructed that this difficulty will be alleviated next week and a report can then be arranged.
Mr Fischetti understands that he suffers no prejudice in the delay due to the anticipated length of the sentence. We hope that within the next 2 weeks we will be able to request a sentencing date in December 2016.
13. I considered this request against the background that the offender faces the prospect of a sentence in years and not months by reason of the objective circumstances of his offending in the 11 counts on which he was convicted and on which he is to be sentenced, the fact that he has already served substantial sentences for previous frauds and so no great leniency could reasonably be expected to be given to him on the current counts and the fact that the offender is in fact in prison and not on bail. Finally, I took in account the informed acknowledgment by the offender that he will “suffer no prejudice in the delay due to the anticipated length of the sentence.”
14. There could be no doubt that a psychiatric report could have the capacity to ameliorate the offender’s responsibility for the offending and, of course, it is in the interests of justice that any offender is able to have a reasonable opportunity to make full answer to what is charged against him. Additionally, this aspect of the offender’s case on sentence may have added significance because of the unresolved Pre-Sentence Report position.
15. Having considered the circumstances, and taking a practical view, I asked my associate on 27 September 2016 to email the parties to provide suitable December dates for the continuation of the sentence proceedings. The Crown did not reply to my associate.
16. Counsel for the Crown wrote to the Registrar of the Court on 27 September 2016:
I am writing to you as I am concerned that no progress is being made in respect of the sentencing of Mr Fischetti.
Mr Fischetti was tried in respect of a number of fraud offences. Verdicts of guilty were returned on 30 May 2016 and Mr Fischetti was remanded in custody (having previously been on bail). A pre sentence report was ordered and a date set for sentence – for 10 August 2016. At the trial Mr Fischetti was represented by counsel, Rory McCrudden, and a Sydney law firm, Macquarie Lawyers.
On 10 August 2016, a new solicitor appeared, Peter Bevan, and new counsel was instructed - Mr Bill Barber. An adjournment was sought by Mr Barber in order to obtain a psychiatrist report in respect of Mr Fischetti. Parties were to liaise with Ms Wei for a future hearing date.
On 22 September 2016 Mr Bevan sent an email to Ms Wei indicating that no psychiatric report has yet been arranged due to funding difficulties that are due to be alleviated next week.
I am concerned that the sentencing proceedings progress. I request that the matter be listed for directions as soon as possible to ensure the matter progresses. I understand that Acting Justice Robinson is based in Sydney. Perhaps the matter could be listed before the Chief Justice for directions. (underlining in original)
17. At the hearing of the matter today I asked Mr Buckingham what directions he sought in light of the Crown’s email correspondence to the Registrar. I was told that the Crown had now been apprised of more firm proposals for the hearing. After hearing the proposals, I made further orders and directions.
Order
18. Note that the offender proposes to rely upon a report from Dr Olav Nielssen on the further sentencing hearing.
19. Direct that the parties furnish to my associate by 11 October 2016 a list of December 2016 dates suitable to counsel for the further hearing incorporating into those dates the potential need of Dr Olav Nielssen to be available for cross-examination on those dates.
20. Direct that the service of the report of Dr Olav Nielssen on the Crown be undertaken by 15 November 2016.
21. Adjourn the matter to a date to be fixed in December 2016.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson Associate: V Wei Date: 4 October 2016 |