R v Italia

[2014] VCC 1705

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01341

THE QUEEN

V

GUISEPPE ITALIA

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2014
DATE OF SENTENCE:	9 October 2014
CASE MAY BE CITED AS:	R v Italia
MEDIUM NEUTRAL CITATION:	[2014] VCC 1705

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth  Director of Public Prosecutions	Ms. M. Sewell	Commonwealth Office of Public Prosecutions
For the Accused	Mr M. Page

HIS HONOUR: 

1Guiseppe Italia, you have pleaded guilty to an indictment charging you with dishonestly obtaining a financial advantage by deception from a Commonwealth entity in the sum of $555,622.27.  The offending took place between 28 October 2010 and 20 June of 2012.  You have also admitted a number of prior convictions and court appearances.

2The prosecution has relied upon two folders of material marked Exhibit A, which include a summary of the prosecution case.  The offending involved you submitting 36 false claims on behalf of nine different corporate entities or trusts over a period of about 21 months.  You created and submitted false supporting documents in order to obtain the moneys that are set out in the indictment.  The prosecution rightly submits, in my opinion, that your motive was one of greed rather than need, although I will come to deal with the context in which the offending occurred in a moment.

3The prosecution also submitted that general deterrence was a particularly important sentencing consideration in cases such as this.   The sentencing submissions referred me to a number of authorities where principles concerning the need for sentences to reflect the need for general deterrence are set out.  I note that the Court of Appeal in Western Australia in the case of Thompson v The Queen (2005) 157 A Crim. R at 385 said at paragraph 77:

"The ATO conducts its business in such a way as to depend largely upon the honesty of those who prepare returns, and offences of this kind strike at the heart of the system."

4You having an accounting background.   Having obtained tertiary qualifications in that field and worked in the field for many years.   You were familiar with how the system worked.  It is the more reprehensible that a person who is engaged in that field professionally should employ those skills in order to strike at the heart of the system in the way you did.  It seems to me to be a way in which the system can be effectively abused without a great deal of effort.  You did go to a fair bit of effort though in not only making your claims but in sustaining your claims.    In particular in relation to the first of the transactions.  I note that the Tax Office conducted an audit as a result of that claim for $166,067.88 which you obtained from them on 28 October of 2010, and that those investigations by the Tax Office were apparent to you from at least late 2011.  It did not deter you from continuing with your offending conduct through the period during which you were supplying further information to the Tax Office in support of that  first claim.

5I note also that your offending conduct was initiated by you submitting that particular claim on 1 October of 2010, which was just over two months after a Community-Based Order was imposed by this court for offences of dishonesty committed in or about 2007.

6Turning to matters personal to you, your counsel provided me with a succinct outline of submissions, and although he was somewhat apologetic about the brevity of them, he expanded significantly upon the submissions during the course of the plea by giving me a good deal of background history to support the plea in mitigation that he was making on your behalf.

7He started by accepting those features of the offending which I have endeavoured to outline and acknowledging that it was inevitable that you must face a term of immediate imprisonment for your offending conduct.  He told me that you had prepared yourself mentally for such a sentence and that clearly general deterrence, as well as individual deterrence, having regard to your record, were particularly significant sentencing considerations, particularly I think general deterrence, as well as, of course, just punishment and denunciation.  That was the point at which he started, but he then went on to tell me a bit about your background. 

8It seems that you had many advantages growing up, albeit that there were high expectations of you because you were the only son of your parents, and coming from an Italian background I apprehend that is of significance.  Your father was obviously successful in business and no doubt you felt pressure to match his acumen and his level of success.  You started pretty well.  You got a good education and embarked on a career which should have continued successfully.  You had married and you had children; however, it seems the accountancy partnership that you went into split and you were tempted by the prospect of making money through investments in the United States and to go over to that country with some of your clients and pursue those investment opportunities.  Clearly, that was a bad decision.

9In the meantime, it seems your then wife had struck up a relationship with a relative of yours, and although you met a young lady in Auckland on the way home, it is likely it seems on what I am told that your marriage was to all intents and purposes already over by the time you got back.  Unfortunately, it seems that you lost your whole family at that time.  You were estranged from your parents and your wife and your children did not want anything to do with you after that.  You, finding yourself in financial strife, engaged in the first of a series of criminal offences in the early to mid-1990s.

10I note that you did not receive any particularly substantial sentences for any of those offences.  The most serious offences seem to be those for which you were sentenced on 15 September 1994 to six months' imprisonment, but I note that you were released on a good behaviour bond from those sentences. 

11The 1990s saw you entangled with the criminal justice system on three separate occasions for offences of dishonesty and a further occasion in 1997 for failure to comply with the conditions of an order, the details of which are not apparent to me.  However, after 1997 there is no evidence of your engaging in any criminal conduct in that period of time.  I am told that you had picked yourself up somewhat, that you worked freelance as a bookkeeper and that you kept yourself in reasonable order during that period.

12You met Ms Georgiannou through the internet in about 2007.  By that time it seems you had engaged in further criminal conduct, diverting funds from a client, and you had been sentenced to a Community-Based Order.  You disclosed that to Ms Georgiannou, although not apparently the offences in the 1990s.  Nevertheless, you set about providing for her and her two children, then in their late teens/early twenties, endeavouring to set up a new home and family for yourself.  You had been living the life of a single man for a number of years in the intervening period.  It was apparent that your wife came to expect a certain standard of living.  No doubt you offered that standard of living and then sought to maintain it.  There is no evidence about it other than what I am told from the Bar table, but I am inclined to accept that factual background, just as I am inclined to accept the facts as presented to me concerning the relationship you had had with your parents and how that looked for a time as though it might come good because they took a bit of a shine to Ms Georgiannou.

13You had, I note, during the property division from the divorce from your first wife made over an investment property to your parents.   I am told that you never saw any of the equity in that property at any stage.   Although after the promise of reconciliation with your parents in the period around 2007 it seemed for a while that your father might make good to some extent by providing you with a couple of taxi licences.

14Mr Page on your behalf was quick to point out that none of this was being put forward as an excuse for your conduct; it was merely your story as to how you got to that point in 2010 when you embarked on this course of criminal conduct.   By that time it seems you had had another failed business venture, a café in Cowes.    You owed a deal of money and were bankrupted.  So there was some financial pressure, but again Mr Page does not put that forward on your behalf as an excuse for your conduct and it is commendable that you do not seek to put that forward as an excuse.  There are other ways of dealing with bankruptcy as you well know than to engage in a course of conduct such as this.

15However, looking at the personal situation that you found yourself in, as a person who had been isolated for many years and had been essentially abandoned by family members, it was perhaps not surprising that you were overly keen to maintain the relationship that you had with Ms Georgiannou and to continue to provide for the lifestyle to which you had both, and as a family, all had become accustomed.  Again, not put forward by way of an excuse but one can begin to understand the psychology behind your course of conduct.

16You freely admitted to police later that you had spent money on high living and that you had lavished gifts, including the Audi, upon Ms Georgiannou.   That supports the prosecution submission that these offences were underpinned by greed rather than need.  As I understand it, you have lost that family now too.   There is no prospect of a reconciliation with Ms Georgiannou or the other members of the family and you present now as being an isolated figure, bereft of support, either in this court or generally, and you have been living off Newstart allowance in recent times.

17It is to very much to your credit, I think, that when confronted by police you admitted to your criminal conduct.  You did not seek to obstruct the investigation; rather, you sought, at that stage at any rate, to cooperate and you pleaded guilty at an early opportunity.  You have come to this court for sentence as early as you reasonably could after being confronted by police with these allegations.  It is accepted by the prosecution that you did cooperate and you did make full admissions to your offending conduct.

18It is submitted that is consistent with remorse and that I should accept that you are now remorseful for your conduct.  Of course, your plea of guilty has facilitated the course of justice and indicated your willingness to facilitate the course of justice and has saved the state a good deal of money and the Commonwealth a good deal of money too in bringing this matter to a conclusion.

19You have the prospect of having a debt of $555,000-odd, plus the $28,000-odd that you owe from the previous compensation order from the 2007 offences hanging over your head when you finish your sentence.  It is acknowledged by the prosecution that it is to your credit that you have cooperated and promised to continue your cooperation in the sale of the two motor vehicles to satisfy in part the reparation order which is sought against you.  All of those are matters that are in your favour.

20I am inclined to give you full credit for your plea of guilty and for your contrition and remorse.  I take into account also that you are not in the best of physical health.  Although no medical evidence has been presented before me, I accept that you have Type 2 diabetes and that you suffer from mild depression.  I think your circumstances are such that one might readily accept that a person in your position would suffer from those sorts of symptoms, at least emotionally and mentally.  You are 63 years of age going on 64, and I noted in the course of the plea that you have not got a lot to look forward to at the present time. 

21It will not be an easy task for you to pick up the reins again when you leave prison.  I think that when that occurs you will need to use the services of the Parole Board to assist you in reestablishing yourself in the community.  This is the first sentence that you have had to serve and you are a 63, nearly 64 year-old man.   To be serving a term of imprisonment for the first time is not a pleasant prospect to contemplate, particularly for one who is isolated.  I imagine that you are not going to be looking forward to a flood of people coming to visit you during the period when you are in custody and I think that it is not going to be an easy task for you to cope with a term of imprisonment at your age, stage of life and state of health.  However, again, Mr Page has not sought to overplay those aspects, merely invited me to take all that into consideration in determining an appropriate sentence.

22I had some discussion with him, and no doubt he has had some discussion with you, about current sentencing practice and the need for the court to look at sentences imposed on other people for broadly similar offending conduct to maintain some consistency, not just within Victoria but within the Commonwealth as well, for an offence of this nature.  It is an impossible task, looking at the summaries, which no doubt you have seen or had drawn to your attention, to draw any close comparisons.  Your counsel pointed to one that seemed to be moderately close for a 68-year old woman who was a chartered accountant.  She had one prior conviction for theft and her head sentence was four years, I think a relatively low minimum term.  I accept that there is some attraction in that and I was assisted by the provision by the prosecution of that material.

23It is necessary for me to have regard to the terms of the Commonwealth Crimes Act in determining an appropriate sentence, having regard to the seriousness of the offence and the fact that it is a course of conduct over a period of time, the amount of money involved, and the circumstances of the offending which I have already dealt with; also, to a number of other factors which have been drawn to my attention during the course of the plea, including the fact that you have shown remorse and contrition for your conduct; your age, state of health and so on and so forth.  All of those are matters that bear upon the balancing of sentencing considerations.

24Deterring you, I think, is necessary because of your record.  I suspect that serving your first term of imprisonment will be sufficient to deter you from wanting to serve another one by engaging in further conduct afterwards, so it does not seem to me that individual deterrence is anything like as important in your particular case as general deterrence. Also, it is necessary for me to facilitate so far as I can your rehabilitation.

25I think I can do that to some extent by imposing a minimum non-parole period that gives you a fair bit of time on parole.  As I understand it, under Commonwealth law at the end of the non-parole period you are granted parole.  That differs from the state system in that regard.   You would have to apply and be found to be suitable for parole.  But it automatically follows in Commonwealth sentencing that you will get parole at the end of that non-parole period.  You still have to avoid breaching the parole conditions, of course, but that will be available to you .   Your plea of guilty which should result in a proper and transparent discount of sentence.  Doing the best I can to put all those together and tempering what seems to me to be an appropriate sentence with a degree of mercy having regard to the facts that I have noted, I am now ready to impose sentence upon you. 

26For the offence of obtaining a financial advantage by deception from a Commonwealth entity I convict you and sentence you to four years and six months' imprisonment.  I order that you serve a period of two years and six months before you become eligible for parole, that is 30 months.  But for your plea of guilty I would have sentenced you to imprisonment for a period of six years and ordered that you serve a period of four years before becoming eligible for parole.  I make the order for reparation in the sum of $550,622.27 that is sought.

27Are there any other orders that I need to make?

28MS SEWELL:  No, Your Honour.

29HIS HONOUR:  The sentence, of course, commences today.   Do you have a draft reparation order, Ms Sewell?

30MS SEWELL:  No, I don't, Your Honour.  I did check to see whether we had one.  I can certainly have one made up and send it through by email.

31HIS HONOUR:  If you could have it forwarded to my associate I will sign it and return it to you.

32MS SEWELL:  Thank you, Your Honour.

33HIS HONOUR:  Thank you for your help, both counsel.

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