R v Fischetti (No 4)

[2016] ACTSC 292

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:

1. 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.

1. 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 13^th count shortly after the trial commenced. The remaining counts were the subject of a lengthy trial occupying 38 sitting days.

1. 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.

1. 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. 

1. 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…