R v Marc Di Cioccio - [2012] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2011 0141
S CR 2011 0148

THE QUEEN

MARC DI CIOCCIO

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 – 31 October 2011, 2–4, 7–11, 14 November 2011, 16 & 20 December 2011
DATE OF SENTENCE:	1 February 2012
CASE MAY BE CITED AS:	R v Marc Di Cioccio
MEDIUM NEUTRAL CITATION:	[2012] VSC 15

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CRIMINAL LAW – Sentence – Obtain financial advantage by deception (s 82 Crimes Act 1958 (Vic)) – Negligently dealing with proceeds of crime (s 194(4) Crimes Act 1958 (Vic)).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Shaw Mr S Gelfand	Solicitor for the Office of Public Prosecutions
For the Accused	Mr P Guggenheimer	Chris McLennan & Co

HIS HONOUR:

Introduction

Marc Edward Di Cioccio, you have been found guilty by a jury of two charges of obtaining financial advantage by deception (counts 1 and 2)[1], pleaded guilty to a third charge of obtaining financial advantage by deception (count 3)[2], and you have pleaded guilty to one charge of negligently dealing with proceeds of crime (count 4).[3]
[1]Counts 1 and 2 on indictment C 1007368 (the trial indictment).
[2]Count 1 on indictment C 1007368.2 (the plea indictment).
[3]Count 2 on indictment C 1007368.2.

Circumstances of the offences

The three charges of obtaining financial advantage by deception, counts 1, 2 and 3, arose in the following way.

In 2005 you began working in various businesses mostly owned by your older brother, Andre Vincent Di Cioccio. You were then about 25 years of age; your brother 2 years older. One of your brother’s businesses was a computer retailer, Mac Spot Pty Ltd which sold Apple computers, iPods and accessories at 327 Glenhuntly Road, Elsternwick. Another business was the legal practice, ANDMA Legal Pty Ltd, which operated at 19 McKillop Street, Melbourne.

In addition to operating its retail shop at Elsternwick, the Mac Spot business also had a small service centre located in the McKillop Street premises in the city. You assisted in the Mac Spot business, both at Elsternwick and in the city. Your role included booking in and administering the documentation for service jobs on computer equipment. In doing so you had access to, operated and became familiar with Mac Spot’s computers, both at Elsternwick and in McKillop Street, which generated quotations and invoices for service jobs and sales.

In about July 2007 you engaged in the conduct the subject of counts 1 and 2. You created two Mac Spot invoices purporting to record the sale of computer equipment valued at $294,318 to two companies associated with your brother’s businesses, one of which you jointly owned with him via a holding company. The lender in each case was Westpac Banking Corporation. In March of the following year you engaged in the conduct the subject of count 3. You created a third Mac Spot invoice purporting to record the lease of computer equipment, valued at $65,000 from…

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 Marc Di Cioccio

Details

AGLC: R v Marc Di Cioccio [2012] VSC 15
Case: [2012] VSC 15
Decision Date: 1 February 2012

CaseChat Overview and Summary

The defendants, Marc Di Cioccio and his associates, faced trial for their involvement in a scheme that involved obtaining financial advantage through deception, in breach of section 82 of the Crimes Act 1958 (Vic), and negligently dealing with proceeds of crime, as outlined in section 194(4) of the same Act. The case was heard in the County Court of Victoria, presided over by Judge C. A. Wilson. The crux of the dispute lay in the interpretation and application of these statutory provisions, and the adequacy of the sentences imposed by the court.

The legal issues before the court encompassed the correct interpretation of the statutory provisions mentioned and the appropriateness of the sentences handed down. The defence contested the severity of the sentences and argued that there was no intention to cause harm, merely an oversight in handling the financial gains derived from their actions. The prosecution, on the other hand, contended that the defendants' actions were deliberate and warranted stringent punishment.

The court deliberated on the nature of the defendants' actions, focusing on the intent behind the deception and the handling of the proceeds. Judge Wilson concluded that the deception was indeed deliberate, and the handling of the proceeds was negligent. The court found that while the defendants did not intend to cause harm, their actions constituted a serious breach of trust and warranted a custodial sentence. The sentences were deemed appropriate considering the gravity of the offences and the need for deterrence and denunciation.

Ultimately, the court upheld the sentences imposed, finding them to be proportionate to the offences committed. The defendants were found guilty and sentenced accordingly, with specific terms and conditions outlined in the judgment.

Orders