R v Malcotti - [2001] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 269 of 2000

THE QUEEN
	v.
MICHAEL MALCOTTI

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JUDGES:	ORMISTON, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2001
DATE OF JUDGMENT:	24 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 97

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CRIMINAL LAW - Sentencing - Obtaining property by deception - Attempting to obtain property by deception - Eight counts over period of four years - Pressure to perform exerted by family - Early plea of guilty and restitution - Total effective sentence of five years' imprisonment with non-parole period of two and a half years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	Acting Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Stephen Andrianakis & Associates

ORMISTON, J.A.:

I will ask Callaway, J.A. to give the first judgment.

CALLAWAY, J.A.:

The appellant, who is now aged 29, pleaded guilty in the County Court to six counts of obtaining property by deception and two counts of attempting to obtain property by deception between October 1994 and December 1998. The maximum custodial penalties for those offences were 10 years' and 5 years' imprisonment respectively. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on each count to terms of imprisonment ranging from 12 months to 2½ years. Most of them were, or were of the order of, 18 months. Carefully chosen directions for cumulation resulted in a total effective sentence of 5 years' imprisonment, in respect of which his Honour fixed a non-parole period of 2½ years and made a declaration regarding 17 days' pre-sentence detention. Leave to appeal was granted on 8th December 2000.

There are three grounds of appeal: first, that the sentence imposed is manifestly excessive in all the circumstances; secondly, that the learned sentencing judge erred in failing to find that the appellant committed the offences in circumstances of reduced moral culpability; and, thirdly, that his Honour erred in his assessment of the appellant's moral culpability.

Before turning to counsel's submissions I shall say something briefly about the way in which the offences were committed. The appellant was employed by the Sunraysia Rural Water Authority as a diversions administrator. His responsibilities included the processing of sales and the transfer of water licences and he had control of the Authority's water entitlement records. It was his position at the Authority which enabled him to carry out a dishonest scheme of creating and selling, or attempting to sell, false water entitlements or licences during the relevant period.

In or about October 1994 a Robinvale real estate agent was telephoned by a man who identified himself as Michael Surace and claimed to have an entitlement to 185 megalitres of water for sale. The agent contacted a Mr Crawford, who was a director of CMV Farms Pty Ltd trading as Pistachio Producers of Australia. He informed Mr Crawford of the entitlement that was purportedly on offer and the company agreed to purchase it…

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 Malcotti

Details

AGLC: R v Malcotti [2001] VSCA 97
Case: [2001] VSCA 97
Decision Date: 24 May 2001

CaseChat Overview and Summary

The case of R v Malcotti involved the defendant, Malcotti, who was charged with obtaining property by deception over a series of eight counts spanning four years. The matter was heard in the Supreme Court of Victoria, where the primary focus was on the appropriate sentence for Malcotti, who had pleaded guilty to the charges. The nature of the deceptions varied, but all involved attempts to obtain property by misleading others. Malcotti’s actions were driven by significant pressure exerted by his family, which was considered during the sentencing process.

The court was required to address several key legal issues, including the appropriate weight to give to Malcotti's early guilty plea, the extent of restitution made, and the cumulative impact of the offending over four years. The court also considered the impact of family pressure on Malcotti's actions and whether this should mitigate the sentence. The challenge was to balance the seriousness of the offences against the mitigating factors presented.

In delivering the judgment, the court acknowledged the pressure Malcotti faced but emphasised the repetitive nature of the offending and the deception involved. The court found that an effective sentence of five years’ imprisonment, with a non-parole period of two and a half years, was not manifestly excessive. The court noted the significant impact of Malcotti’s early guilty plea and the restitution made, which were substantial mitigating factors. The court concluded that the sentence reflected both the seriousness of the crimes and the mitigating circumstances.

The final orders of the court confirmed Malcotti’s sentence as five years’ imprisonment with a non-parole period of two and a half years. The court’s decision recognised the mitigating factors but also upheld the need for a sentence that appropriately reflected the gravity of the repeated offences.

Orders