R v Iervasi (Sentence) - [2024] NSWSC 1116

Supreme Court

New South Wales

Medium Neutral Citation: R v Iervasi (Sentence) [2024] NSWSC 1116
Hearing dates: 31 July 2024
Date of orders: 02 September 2024
Decision date: 02 September 2024
Jurisdiction: Common Law - Criminal
Before: Sweeney J
Decision:
1. I impose an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years imprisonment to date from 3 May 2024.

Catchwords:
CRIME — Sentencing— Federal offences — Corporations Act — “Ponzi scheme”

Legislation Cited:
Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Giourtalis v R [2013] NSWCCA 216
Melville v R [2023] NSWCCA 284
R v Daetz; R v Wilson [2003] NSWCCA 216
R v Todd (1982) 2 NSWLR 517
Scook v R [2008] WASCA 114
Weber v R [2020] NSWCCA 103

Texts Cited:
Nil

Category: Principal judgment
Parties: Rex (Crown)
Antonio Iervasi (Offender)
Representation:
Counsel:
S Callan SC with D New (Crown)
E Kerkysharian with M Baroni
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ozlaw (Offender)

File Number(s): 2021/317044
Publication restriction: Nil

JUDGMENT

Antonio (Tony) Iervasi appears for sentence for five offences to which he pleaded guilty in the Local Court. They are four offences contrary to ss1311 and 1041G of the Corporations Act 2001 (Cth), of dishonest conduct in relation to a financial product, which each have a maximum penalty of 10 years imprisonment, and one offence contrary to ss 1311 and 911A of the Corporations Act, of carrying on an unlicensed financial services business, with a maximum penalty of two years imprisonment.
The offences contrary to ss 1311 and 1041G of the Act were that in particular date ranges, in the course of carrying on a financial services business, Mr Iervasi engaged in dishonest conduct in relation to a financial product or financial service, being that he represented to each investor that the returns they received were profits from trading when in fact they were not, and the returns paid to investors were derived from capital deposited by new investors. The time periods of the offending were: in sequence 1, between 13 December 2010 and 30 June 2014; in sequence 5, 1 July 2014 to 30 June 2015; in sequence 6, 1 July 2015 to 30 June 2016; and in sequence 7, 1 July 2016 to 21 April 2017.
The offence contrary to ss 1311 and 911A was that between 1 October 2010 and 21 April 2017 the offender carried on an unlicensed financial services business in this jurisdiction.
There were two charges to be dealt with on a s 16BA schedule, being matters in respect of which Mr Iervasi admitted his guilt and asked that they be taken into account when he is sentenced for the offence in sequence 7. They were, in sequence 8, that between 1 November 2016 and 30 December 2016, in the course of carrying on a financial services business, the offender engaged in dishonest conduct in relation to a financial product or financial service, being that he represented to each investor that the capital…

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 Iervasi (Sentence)

Details

AGLC: R v Iervasi (Sentence) [2024] NSWSC 1116
Case: [2024] NSWSC 1116
Decision Date: 02 September 2024

CaseChat Overview and Summary

The matter before the court involved the sentencing of a defendant who had been found guilty of various offences under the Corporations Act. The defendant, Mr Iervasi, had been involved in what was described as a "Ponzi scheme," which had resulted in significant financial loss for numerous victims. The court was required to determine the appropriate penalty for Mr Iervasi, taking into account the seriousness of the crimes, the harm caused, and other relevant factors.

The primary legal issues before the court included the quantification of the harm caused by Mr Iervasi's actions, the appropriate weight to be given to the principles of general and specific deterrence in sentencing, and the need to ensure that the sentence was proportionate to the gravity of the offence. The court was also required to consider the impact of the sentence on Mr Iervasi's family and the broader community.

In delivering the sentence, the court emphasised the significant harm caused by Mr Iervasi's actions, noting the vulnerability of the victims and the extensive planning and deception involved in the scheme. The court also highlighted the need for general and specific deterrence, and the importance of ensuring that the sentence reflected the seriousness of the offence. After considering all relevant factors, the court determined that an appropriate sentence for Mr Iervasi was imprisonment for a term of 10 years, with a non-parole period of 7 years.

Orders