R v Gattellari; R v Hatfield

[2019] NSWDC 244

District Court

New South Wales

Medium Neutral Citation:	R v Gattellari; R v Hatfield [2019] NSWDC 244
Hearing dates:	11 December 2018, 1 March 2019, 29 March 2019, 26 April 2019, 7 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Hock DCJ
Decision:	Fortunato (Lucky) Gattellari: Sentenced to an aggregate sentence of imprisonment of 4 years 4 months to date from 13 October 2017 and to expire 12 February 2022. I set a single non-parole period of 2 years 2 months to date from 13 October 2017 and to expire 12 December 2019.  Shayne Desmond Hatfield: Sentenced to a non-parole period of 2 years 2 months and a total term of 3 years 4 months imprisonment, both to date from 9 November 2017. The non-parole period will expire on 8 January 2020 the day the offender will be eligible for release on parole. The total term will expire on 8 March 2021.
Catchwords:	SENTENCE, conspiracy to defraud, offences committed while in custody
Legislation Cited:	Crimes Act 1900, Crimes (Sentencing Procedure) Act 1999, Court Suppression and Non Publication Orders Act 2010
Category:	Sentence
Parties:	The Crown Fortunato (Lucky) Gattellari (first offender) Shayne Desmond Hatfield (second offender)
Representation:	Counsel: Mr D Robinson (Crown) Mr M Gelbert (first offender) Mr A Radojev with Mr R Keller (second offender)   Solicitors: Ms Eilish Copelin (Crown) Ms Sarah Rashisi and Mr Lisa Dao (first offender) Mr Dave Barron (second offender)
File Number(s):	2016/00381865; 2017/00002048
Publication restriction:	See orders below

Non-publication orders:

1. Pursuant to s 7(b) of the Court Suppression and Non Publication Orders Act 2010 (the Act) there is a non-publication order in respect of the names of AB (a pseudonym) and CD (a pseudonym).

1. Pursuant to s 8(1)(a) of the Act, the order is necessary to prevent prejudice to the proper administration of justice.

2. Pursuant to s 11(2) of the Act, the non-publication order is to apply throughout the Commonwealth of Australia.

3. Pursuant to s 12(1) of the Act, the non-publication order is to remain in place until the trials of AB and CD have concluded or until further order of the Court.

2. Pursuant to the Court Suppression and Non Publication Orders Act 2010, having taken into account in accordance with s 6 that a primary objective of the administration of justice is to safeguard the public interest in open justice, I make the following orders:

1. Pursuant to s 7(b) of the Act I make a non-publication order in respect of paragraphs 97 to 101.

2. Pursuant to s 8(1)(a) of the Act, the order is necessary to prevent prejudice to the proper administration of justice.

3. Pursuant to s 11(2) of the Act, the non-publication order is to apply throughout the Commonwealth of Australia.

4. Pursuant to s 12(1) of the Act, the non-publication order is to remain in place until further order of the Court.

Judgment

1. On 3 September 2009 Mr Michael McGurk was shot dead. The offender Lucky Gattellari was arrested in relation to that murder on 13 October 2010. Mr Ron Medich was arrested on 27 October the same year.

2. The murder of Mr McGurk and those arrests set in train a course of conduct by these 2 offenders, Mr Gattellari and Shayne Hatfield, which in turn led to them standing trial for conspiracy to defraud Mr Ron Medich. Mr Gattellari was found guilty of 2 Counts on Indictment and Mr Hatfield of one.

3. A conspiracy charge is a common law charge and the maximum penalty is therefore at large. However, the maximum penalty for the substantive offence may be used as a yardstick. In the present case, it is common ground that the maximum penalty for the offence of obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act – namely, imprisonment for 10 years – should be used as a guide.

4. Returning now to the course of conduct previously referred to, in October 2010 Mr Gattellari requested $1,000,000 from Mr Ron Medich for his anticipated legal fees. This was refused.

5. In December 2010 Mr Medich was granted bail in the Supreme Court.

6. Ultimately Mr Gattellari pleaded guilty to being an accessory before the fact to murder. On 10 May 2013 he was sentenced to a non-parole period of 7½ years and a total term of 10 years imprisonment. Mr Gattellari was to be the principal witness in the trial of Mr Medich. There were many delays and ultimately Mr Medich did not stand until 11 July 2016.

7. The delay caused Mr Gattellari to become increasingly frustrated. He was also bitter because of Mr Medich’s refusal to assist him with his legal fees – as the evidence established that the pair had been extremely close friends prior to the murder of Mr McGurk and Mr Gattellari perceived that Mr Medich was responsible for the situation in which he (Mr Gattellari) found himself.

Count 1

8. Between 1 January 2013 and 20 December 2013 Mr Gattellari conspired with others to defraud Mr Medich of a significant amount of money.

9. As part of the plan, the evidence established that on his release from custody, a co-conspirator, Mr Robert McCarthy, contacted Mr Roy Medich, Mr Ron Medich’s brother. He left a note in Mr Roy Medich’s letterbox asking that he contact him urgently and providing a mobile number.

10. Mr Roy Medich found the note on 13 July 2013 and called Mr McCarthy as requested. Mr Roy Medich told Mr McCarthy to contact Ron Medich’s son Mr Peter Medich which he did. They met at Il Vizio Caffe in the Norton Street Plaza, Leichhardt where Mr McCarthy gave Mr Peter Medich a letter Mr Gattellari had provided to him when they were both in custody.

11. Peter Medich’s recollection of the words in the letter (which was not in evidence) was “The evidence against you isn’t worth a cracker without my testimony. You should have paid me the million dollars I asked for and you wouldn’t be in this mess and I would never have involved you” (T59).

12. The letter offered that Mr Gattellari would give false evidence at the trial – that is, not implicate Mr Medich – in return for $10,000,000.

13. Following this meeting a police task force Strikeforce Smedley was set up, independent from the task force which was involved in investigating Mr McGurk’s murder.

14. In August 2013 an undercover police operative (“George”) contacted Mr McCarthy and conducted negotiations with the conspirators, purportedly acting on Mr Ron Medich’s behalf.

15. Communications including phone calls and meetings took place between the parties up to and including 17 December 2013. On that day Mr McCarthy, AB and George met at a park in Leichhardt. The conspirators became suspicious of George and the first conspiracy concluded on that day.

16. On 23 December 2013 Mr Gattellari was moved from Long Bay to Cooma Correctional Centre.

17. Detective Chief Inspector Michael Sheehy and Detective Sergeant Mark Fitzhenry, who were supervising Mr Gattellari in respect of his offer of assistance in the Medich trial, visited him there on 6 March 2014. Mr Gattellari told them, falsely, that someone in the Medich camp had approached him to give false evidence.

Count 2

18. While in Cooma Correctional Centre Mr Hatfield became Mr Gattellari’s cellmate. They had previously become friends in Long Bay Correctional Complex. Mr Gattellari told Mr Hatfield about the situation with Ron Medich.

19. Between 23 December 2013 and 1 August 2014, Mr Gattellari and Mr Hatfield conspired with others to defraud Ron Medich.

20. Mr Hatfield suggested that they should involve Roger Rogerson, who he knew. He also used his former partner CD as a go between. Mr Rogerson in turn recruited Mr Glen McNamara to assist.

21. On 4 April 2014 Mr McNamara visited Mr Hatfield at Cooma Correctional Centre.

22. The next day AB drove CD to that same correctional centre at the request of his brother. CD visited Mr Hatfield with Mr Rogerson and Mr McNamara while AB visited his brother.

23. Mr Gattellari, Mr Hatfield, Mr Rogerson and Mr McNamara all spoke together until they were separated by correctional officers.

24. After that meeting discussions and negotiations continued. From intercepted phone calls played to the jury it was Mr Hatfield who was attempting to move matters along with the assistance of his partner, Mr Rogerson and Mr McNamara.

25. The sum demanded escalated to $30,000,000 to be paid in blue chip shares before 15 May 2014 and $50,000,000 thereafter as set out in Exhibit 10, a note which was intended for Mr Ron Medich. Mr Hatfield instructed CD about this in coded conversations over the phone, for example, 13 April 2014 p195, “Remember what I discussed with you – the name it’s got to go in”, and again in two calls on 16 April 2014 (part of Exhibit 23).

26. However, on 25 May 2014 Mr McNamara was arrested for the murder of Mr Jamie Gao. The next day so too was Mr Rogerson – which brought their involvement, and effectively the conspiracy, to an end.

27. It was not until December 2016 that Mr Gattellari was charged and Mr Hatfield was charged on 3 January 2017.

28. During the trial Mr Gattellari gave evidence. His account that he did not in fact intend to defraud Mr Medich was obviously rejected by the jury as a reasonable possibility. However, it was never the Crown case that Mr Gattellari was actually going to give false evidence in the Medich trial.

29. That completes my summary of the facts.

Objective gravity

30. Important factors relevant to an assessment of the objective gravity of each offence are:

1. the role played by each offender,

2. the amount of money involved,

3. each offender’s motive.

31. As to the role – clearly Mr Gattellari was the catalyst for the commission of both offences.

32. He was essentially in charge during Count 1, although of necessity Mr McCarthy had to make some decisions as he was in the community and could not readily contact Mr Gattellari who remained in custody.

33. In Count 2 – Mr Hatfield was in my view more in control of moving the conspiracy on and dealing with day to day events than was Mr Gattellari.

34. He not only involved Mr Rogerson but also his own partner, whom he called frequently, sometimes five times a day – to provide instructions.

35. As to the sums involved, they were staggering in their enormity. However, the sum demanded in Count 2 was increased by Mr Rogerson and I accept Mr Gattellari’s evidence that it was not a figure he set.

36. As to motive, as previously outlined Mr Gattellari had mixed motivations, which obviously included financial gain.

37. I find his frustration with the delay of the commencement in the murder trial of Mr Medich contributed to his actions. While this is not a mitigating factor, it provides some explanation for his conduct.

38. Ironically, Mr Gattellari’s attempt to defraud Mr Medich led to yet a further postponement of the latter’s trial.

39. In Mr Hatfield’s case, his motive was purely greed.

40. Overall, I find each offence falls at about the mid level of objective gravity.

41. It is of course a serious feature of the offences that they were committed while the offenders were in custody.

42. While Mr Gattellari is to be sentenced for two counts, in his case it was really one ongoing conspiracy between 1 January 2013 and 1 August 2014 – with different participants.

Subjective material

43. I come now to consider matters personal to each offender.

Lucky Gattellari

44. Mr Gattellari is now 69 years of age. He was 62 or 63 at the time of the first offence and 63 or 64 at the time of the second offence.

45. Before he was imprisoned in 2010 he had never previously served a custodial sentence. Indeed he had only been before a Court once, in 2009, for (a) not keeping a firearm safely – a charge which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act and (b) for possessing a prohibited firearm – in respect of which he was fined $500.

46. However, as previously stated on 7 September 2012 Mr Gattellari pleaded guilty to a most serious offence. He was sentenced to a non-parole period of 7 years 6 months and a total term of 10 years, both to date from 13 October 2010.

47. He was eligible for release on parole on 13 April 2018. However, on 8 February 2018 the State Parole Authority refused parole and concluded that “until such time as the outstanding Court matters have been dealt with, the Authority considers that release to parole is not appropriate at this time.”

48. Mr Gattellari did not give evidence on sentence but a number of medical reports, Corrective Services documents and a letter from him, letters from his wife, son and daughter and a close family friend have been tendered on his behalf.

49. Drawing on that material Mr Gattellari is the youngest of 7 boys in a family which came from Calabria many years ago. Indeed the offender has been in Australia since he was 4 years of age. He was educated to Year 8 level only.

50. He has generally been in employment during his adult life, initially working on the family farm, then as a professional boxer, and then engaged in other enterprises including running a function centre in the Liverpool area.

51. As previously noted, for many years prior to his arrest he had been a close friend of Mr Ron Medich and indeed they had spent most days together. He has been married for over 30 years and has 3 children – 2 daughters and a son – all in their 30s.

52. The medical evidence establishes that he has suffered from anxiety for many years, which has been exacerbated by the conditions of his incarceration – a subject to which I will return.

53. Dr Olav Nielssen, who has provided three reports over 9 years, 2010, 2013 and most recently February 2019, diagnosed the offender with anxiety disorder in 2010 and that diagnosis was confirmed in his latest report.

54. The offender’s physical health appears to be reasonable for a man of his age.

55. In his letter the offender has expressed his remorse and his reason for this offending. While it cannot excuse his conduct it does go some way to explain it.

56. Dr Nielssen assessed the offender as having a low likelihood of reoffending. Although Mr Gattellari committed these two further offences while in custody, I agree with that assessment, given his age and his very minor criminal history until he committed such a serious offence in 2009 and the fact he has strong family support.

57. Mr Gattellari’s conditions of custody have been extremely onerous for his entire sentence and I have taken this into account.

Shayne Hatfield

58. Shayne Hatfield is 53 years of age and was 48 or just 49 at the time of the offence (Count 2).

59. Until 2005 his criminal history was fairly minor, comprising convictions for possess and administer a prohibited drug in 1987, assault in 1992, assault occasioning actual bodily harm in 1993, two contravene apprehended domestic violence orders (ADVO) in 1999 and supply prohibited drug in 2000.

60. He had never previously been in custody until he was sentenced for two very serious offences.

61. For the first (taking matters into account) – supplying a large commercial quantity of a prohibited drug – namely cocaine – a non-parole period of 9 years 2 months and a total term of 15 years 8 months was imposed, both to date from 9 May 2005.

62. For the second – which was conspiracy to import a commercial quantity of cocaine – a non-parole period of 11 years and a total term of 22 years was imposed to date from 9 May 2007

63. The earliest date he was eligible for parole on that sentence was 8 May 2018. The total sentence will expire on 8 May 2029.

64. He has therefore been in continuous custody since he was 39 years of age.

65. He did not give evidence on sentence.

66. Tendered on his behalf were a character reference from his daughter and testimonials from Ms Deidre Tracey and Ms Williams, a Registered Nurse who worked in the Junee Correctional Centre and who first came into contact with Mr Hatfield in October 2016.

67. In addition, the initial report of the Serious Offenders Review Council dated 7 November 2017 (Exhibit 2), a Corrective Services pre-release report dated 8 February 2018 and a Sentence Assessment Report dated 6 February 2019 were tendered.

68. Drawing on that material he has a supportive family and is close to his daughter, who was only 10 when he went into custody and is now 24.

69. It is clear that Mr Hatfield has positive qualities, including overcoming his previous addictions, and managing his mental health.

70. However, the evidence in the trial – the phone calls to his partner in particular, display considerable intelligence and manipulation. As early as March 2014 CD expressed reluctance to be involved (Exhibit 23 2 March 2014 p28). However, he overcame this with pressure, amounting to bullying, in my view. CD was clearly a fairly vulnerable person as subsequent events confirmed.

71. Whatever his current mental state, which is unclear, at the time of the offence he was perfectly capable of progressing the plan to defraud Mr Medich, and using others to attain his goal.

72. To the extent that Ms Williams takes issue with his reclassification and indeed his continued incarceration, in my opinion her views are ill founded, given the further serious offence of which Mr Hatfield has now been found guilty.

73. While I am more guarded about Mr Hatfield’s prospects for rehabilitation, but they would still appear to be reasonable.

74. Given the very lengthy period he has already been in custody, he and the community will benefit from appropriate and careful supervision being provided to him on his release.

Delay

75. The evidence established that there has been considerable delay in this matter being brought to trial. There is an unexplained hiatus between 2014 and 2016.

76. I have taken into account that the delay has had adverse consequences for both offenders – more so for Mr Gattellari as he has been in strict protection for the entirety of his sentence.

Starting dates

Lucky Gattellari

77. As previously noted, Mr Gattellari was eligible for parole on 13 April 2018. The Crown accepts his parole was refused solely on the basis of these outstanding matters.

78. The State Parole Authority has declined to consider his release to parole until he has been sentenced.

79. There is a discretion as to the starting date of this sentence. Having regard to the unexplained delay and to the principle of totality, I have determined that this sentence should commence on 13 October 2017, that is, a backdate of 6 months from the expiration of the non-parole period.

80. In coming to that decision I have taken into account the submissions of the Crown and of Mr Gelbert counsel for Mr Gattellari.

Shayne Hatfield

81. Mr Hatfield was eligible to be considered for parole on 8 May 2018.

82. On 2 May 2018 he too was refused parole because he had been charged with this further offence.

83. He was informed the matter would be reconsidered after the outcome of these proceedings.

84. As with Mr Gattellari, and for the reasons earlier explained, I have determined to commence Mr Hatfield’s sentence 6 months prior to the expiration of his non-parole period – giving a starting date of 9 November 2017.

85. As before, I have had regard to the submissions of the parties on this point.

Special circumstances

86. I find special circumstances in both sentences because of the accumulation of sentences and also in Mr Gattellari’s case because of the onerous conditions of custody he has endured for close to 9 years.

87. The variation to the usual ratio is not as significant in Mr Hatfield’s sentence as his conditions of custody have not been as restrictive.

Aggregate sentence – Lucky Gattellari

88. I record that under s 53A of the Crimes (Sentencing Procedure) Act an aggregate sentence will be imposed in respect of Mr Gattellari.

89. If that were not the case there would have been some partial accumulation of the sentences.

90. I am required to record the term of the sentence which would have been imposed for each offence.

Record of indicative sentences:

Count	Total term of imprisonment
1	3 years 6 months
2	3 years 6 months

91. The non-parole period to be fixed in respect of each offender represents the minimum period that he should spend in custody having regard to all the elements of punishment, including the objective seriousness of the offence or offences, specific and general deterrence, denunciation and his subjective circumstances.

ORDERS

Lucky Gattellari

92. You are convicted of the 2 counts on the Indictment.

93. You are sentenced to an aggregate sentence of imprisonment of 4 years 4 months to date from 13 October 2017 and to expire 12 February 2022.

94. I set a single non-parole period of 2 years 2 months to date from 13 October 2017 and to expire 12 December 2019 the day the offender will be eligible for release on parole.

95. Having regard to his previous sentence the effective overall sentence is now a non-parole period of 9 years 2 months and a total term of 11 years 4 months.

96. I recognise that this is greater than the usual ratio of 75% but this is a consequence of the accumulation of sentences. Assuming Mr Gattellari is released at the end of his non-parole period, 2 years 2 months on parole should provide adequately for reintegration into the community in my view.

97. [redacted]

98. [redacted]

99. [redacted]

100. [redacted]

101. [redacted]

Shayne Hatfield

102. For the offence of conspiracy to defraud Ron Medich you are convicted.

103. I set a non-parole period of 2 years 2 months and a total term of 3 years 4 months imprisonment, both to date from 9 November 2017.

104. The non-parole period will expire on 8 January 2020 the day the offender will be eligible for release on parole.

105. The total term will expire on 8 March 2021.

106. Having regard to the sentences imposed previously the effective overall sentence is now a non-parole period of 14 years 8 months and a total term of 24 years.

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Decision last updated: 11 June 2019