R v Giampaolo; R v Giampaolo
[2021] ACTSC 142
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Giampaolo; R v Giampaolo |
Citation: | [2021] ACTSC 142 |
Hearing Date: | 17 June 2021 |
DecisionDate: | 2 July 2021 |
Before: | Burns ACJ |
Decision: | See [25]–[36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission – dishonestly influence public official in the exercise of public official duties – importation of goods into Australia – where documentation contained misleading information – where no financial motive for offending – consideration of prospects of rehabilitation – consideration of distinguishing between the offenders |
Legislation Cited: | Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) ss 11.2A, 135.1(7), 145.1(1) |
Parties: | The Queen (Crown) Sebastian Giampaolo (Offender) Dominic Giampaolo (Offender) |
Representation: | Counsel H Snobar (Crown) S Whybrow (Offender) K Archer and N Wootton (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Aulich Law (Offender) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 258 of 2020; SCC 254 of 2020 |
BURNS ACJ:
The offenders, Sebastian Giampaolo and Dominic Giampaolo, were charged on separate indictments with a number of offences.
On 17 June 2021, Sebastian Giampaolo entered pleas of guilty to two charges of causing a false or misleading document to be provided to the Department of Agriculture and Water Resources with the intention of dishonestly influencing a public official contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code), each of which carries a maximum penalty of imprisonment for five years, a fine of 300 penalty units or both (SCCAN 78/2021; SCCAN 83/2021). He also entered pleas of guilty to three charges of jointly causing a false or misleading document to be provided to the Department of Agriculture and Water Resources with the intention of dishonestly influencing a public official contrary to ss 135.1(7) and 11.2A of the Commonwealth Criminal Code which carries the same maximum penalty (SCCAN 80/2021; SCCAN 81/2021; SCCAN82/2021). He also entered pleas of guilty to two charges of jointly using a document with the intention of dishonestly inducing a public official to accept it as genuine and by so doing, to dishonestly influence the exercise of a public duty or function contrary to ss 145.1(1) and 11.2A of the Commonwealth Criminal Code, each of which carries a maximum penalty of imprisonment for 10 years, a fine of 1,200 penalty units or both (SCCAN 77/2021; SCCAN 79/2021).
On the same date, Dominic Giampaolo entered pleas of guilty to three charges of jointly causing a false or misleading document to be provided to the Department of Agriculture and Water Resources with the intention of dishonestly influencing a public official contrary to ss 135.1(7) and 11.2A of the Commonwealth Criminal Code, each of which carries a maximum penalty of imprisonment for five years, a fine of 300 penalty units or both (SCCAN 88/2021; SCCAN 89/2021; SCCAN 90/2021). He also entered pleas of guilty to two charges of jointly using a false document with the intention of dishonestly inducing a public official to accept it as genuine and by so doing, to dishonestly influence the exercise of a public duty or function contrary to ss 145.1(1) and 11.2A of the Commonwealth Criminal Code, each of which carries a maximum penalty of imprisonment for 10 years, a fine of 1,200 penalty units or both (SCCAN 86/2021; SCCAN 87/2021).
The facts
These charges relate to seven importations of goods into Australia without meeting the necessary importation requirements. The offending relates to the importation of fitness supplements by a company Elite Distributors Pty Ltd of which Sebastian Giampaolo was a director and Dominic Giampaolo was an employee. This was a family company and Sebastian Giampaolo is the uncle of Dominic Giampaolo. I will refer briefly to the circumstances of each of these importations.
Importation A occurred in the period between about 6 June 2015 and 2 July 2015. The two offenders used a false invoice to influence the decision of a public official to meet the requirements for importation of materials. They provided an invoice to a broker assisting in the importation which did not include all of the products imported on the consignment, knowing that the invoice would be used in the assessment of the documentation to release the consignment. This resulted in a release of the consignment which contained, amongst other products, four products which the offenders believed that Elite Distributors Pty Ltd were not permitted to import without further regulatory processes being undertaken based on the misleading information.
Importation B occurred in the period between about 27 July 2015 and 25 September 2015. Only the offender, Sebastian Giampaolo was involved in this importation. He caused the provision of a misleading invoice to the Department of Agriculture and Water Resources to dishonestly influence the decision of a public official in order to meet the requirements set out under the appropriate regulations to enable material to be imported. He sent an invoice to a broker which did not reflect all of the products to be released in the consignment, knowing that the department would use it to assess the documentation to release the consignment. This resulted in a release of the consignment which contained, amongst other products, six products which Elite Distributors Pty Ltd was not permitted to import without further regulatory processes being undertaken based on the misleading information.
Importation C occurred about 29 September 2015. Both offenders were involved in this importation. The offenders used a false invoice to dishonestly influence the decision of the public official in order to meet the requirements set out under the relevant regulations to permit material to be imported. The offenders provided an invoice to a broker which did not include all of the products imported in the consignment, knowing that the invoice would be used in the assessment of the documentation to release the consignment. This resulted in the release of the consignment which contained, amongst other products, five products which the offenders believed that Elite Distributors Pty Ltd was not permitted to import without further regulatory processes being undertaken and based upon the misleading information.
Importation D occurred in the period between about 17 January 2016 and 22 March 2016. Both offenders were involved in this importation. The offenders caused the provision of misleading import documents to the Department of Agriculture and Water Resources to dishonestly influence the decision of a public official in order to meet the requirements set out under the relevant regulations relating to the importation of materials. The offenders sent an invoice to a broker which did not reflect all of the contents of the consignment, knowing that the Department would use it to assess the documentation for the release of the consignment. This resulted in the release of the consignment which contained, amongst other things, six products which the offenders believed they were not permitted to import without further regulatory processes being undertaken based on the misleading information.
Importation E occurred in the period between about 23 May 2017 and 31 August 2017. Both offenders were involved in this importation. The offenders caused the provision of misleading import documents to the Department of Agriculture and Water Resources to dishonestly influence the decision of a public official in order to meet the requirements set out under the relevant regulations relating to the importation of materials. The offender, Sebastian Giampaolo, requested that the supplier rename items on the invoice which Dominic Giampaolo provided to a broker to be lodged with the Department.
Importation F occurred in the period between about 5 September 2017 and 2 March 2018. Both offenders were involved in this importation. The offenders caused the provision of misleading import documents to the Department of Agriculture and Water Resources to dishonestly influence the decision of a public official in order to meet the requirements set out under the relevant regulations relating to the importation of materials. The offender, Sebastian Giampaolo, ordered the goods and Dominic Giampaolo arranged for the amendment of the invoice with the supplier so that the goods were either renamed or removed from the invoice.
Importation G occurred in the period between about 23 January 2018 and 5 April 2018. Only the offender Sebastian Giampaolo was involved in this importation. He caused the provision of misleading import documents to the Department of Agriculture and Water Resources to dishonestly influence the decision of a public official in order to meet the requirements set out under the relevant regulations relating to the importation of materials. He ordered goods and arranged for the amendment of the invoice with the supplier so that either reference to the goods was removed or the goods were renamed.
Objective seriousness
In assessing the objective seriousness of each of these offences with regard to each of the offenders, I take into account that each of the offences was deliberate and involved a degree of planning and preparation.
The offender, Sebastian Giampaolo, was involved in seven separate instances of offending over the period from about 6 June 2015 until about 5 April 2018, being approximately three years.
The offender, Dominic Giampaolo, was involved in five separate instances of offending over the period from 6 December 2015 until 31 August 2017, being a little less than two years.
To put that information into context, the importations which are the subject of the charges were only some of the importations undertaken by Elite Distributors Pty Ltd over that period. In addition, the materials which the offenders imported or sought to import without appropriate clearance were only a part of the materials involved in each importation.
It is conceded by the Crown that there was no financial motive for these offences. It is also conceded that there was no breach of trust involved. I accept on the balance of probabilities that the offenders committed these offences because they could not be bothered undertaking the administrative requirements to have the materials approved for importation.
The Crown has also not alleged that the materials imported actually created a biosecurity hazard although the potential for such a hazard must always exist when materials are imported without appropriate oversight and authorisation. While the present offences are not trivial, in my opinion, they fall below the mid-range of such offences.
Subjective features
Sebastian Giampaolo is 62 years old and has no relevant criminal history. He has a longstanding stable family relationship and a record of consistent employment. There are no alcohol or drug issues which need to be addressed. The author of a Pre-Sentence Report assessed him as a low risk of general re-offending, an assessment with which I agree. He has been found suitable for a community service work condition.
Dominic Giampaolo is currently 24 years of age and has no prior criminal history. He was between 19 and 21 years old at the time of these offences. He started working in the business conducted by Elite Distributors Pty Ltd when he was 17 years old. I take into account the contents of the references that were provided on behalf of Dominic Giampaolo and the letter to the Court which he wrote and which was tendered without objection. I give very considerable weight to the fact that he has undertaken and completed tertiary studies and has an intention to work in the financial services sector. These are matters which are strongly in favour of his prospects for rehabilitation.
It is accepted by the Crown that there are reasons for distinguishing between the offenders. The offender, Sebastian Giampaolo, was older and was involved in more offences. He was also a director of the company. Dominic Giampaolo was a very young man working part-time in the family business when these offences occurred. He had an important sounding title of International Imports Officer, but the reality was that he was not a director or other officer of the company and was a part-time employee.
In assessing the level of moral culpability to be attributed to Dominic Giampaolo, I also recognise that his co-offender was his uncle. I do not suggest that his uncle coerced him into committing these offences but as a senior family member, his uncle was a person likely to shape the way in which Dominic Giampaolo approached his duties.
I am satisfied that it is quite unlikely that either of the offenders will re-offend in a similar way in the future. Both have excellent prospects for rehabilitation. Personal deterrence is not a significant sentencing factor in relation to these offences.
The offenders' pleas of guilty were entered at an early time but not at the earliest opportunity. I will reduce by approximately 20 per cent the sentences which I would otherwise have imposed because of the offenders' pleas of guilty.
I accept the Crown's submission that general deterrence is relevant in sentencing for the present offences, particularly as they are offences which are difficult to detect. I note that I am not to impose a sentence of imprisonment with regard to any offence unless I am satisfied that no other sentence is appropriate in the circumstances. In my opinion, the requirements of sentencing will be met by the imposition of convictions and Good Behaviour Orders with community service work conditions in respect of Dominic Giampaolo and convictions and a suspended sentence of imprisonment with a community service work order for Sebastian Giampaolo.
Sentence
Sebastian Giampaolo
Sebastian Giampaolo, I record convictions with regard to the seven counts to which you have entered pleas of guilty.
On Count 1, you are sentenced to five months' imprisonment commencing 2 July 2021 and expiring on 1 December 2021.
On Count 3, you are sentenced to five months' imprisonment commencing on 2 August 2021 and expiring on 1 January 2022.
On Count 2, you are sentenced to three months' imprisonment commencing 2 November 2021 and expiring on 1 February 2022.
On Count 7, you are sentenced to three months' imprisonment commencing 2 December 2021 and expiring on 1 March 2022.
On Count 4, you are sentenced to three months' imprisonment commencing 2 January 2022 and expiring on 1 April 2022.
On Count 5, you are sentenced to three months' imprisonment commencing 2 February 2022 and expiring 1 May 2022.
On Count 6, you are sentenced to three months' imprisonment commencing on 2 March 2022 and expiring on 1 June 2022.
The aggregate sentence which I have imposed is therefore one of 11 months’ imprisonment commencing on 2 July 2021 and expiring on 1 June 2022.
Those sentences will be wholly suspended and there will be a Good Behaviour Order for a period of two years commencing on 2 July 2021 and expiring on 1 July 2023. You will be subject to the supervision of the relevant Director-General or that person's delegate for that period of two years or such lesser period as deemed appropriate by your supervising officer. You will also be required to undertake 200 hours of community service within 12 months as directed by officers of ACT Adult Corrections.
Dominic Giampaolo
Dominic Giampaolo, I record convictions with regard to the five counts on which you have entered pleas of guilty and on each matter, there will be a Good Behaviour Order for a period of 15 months commencing on 2 July 2021 and expiring on 1 October 2022.
As a condition of the Good Behaviour Order on Count 1, you will be required to accept the supervision of the relevant Director for that period of 15 months or such lesser period as deemed appropriate by your supervising officer. You will be required to undertake 100 hours of community service within 12 months as directed by officers of ACT Adult Corrections. The other Good Behaviour Orders will be subject only to the core conditions as found in the Crimes Act 1914 (Cth).
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Burns. Associate: Date: 3 August 2021 |
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