Raffaele Di Paolo v The Queen - [2019] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0157

RAFFAELE DI PAOLO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA, and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2019
DATE OF JUDGMENT:	30 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 194
JUDGMENT APPEALED FROM:	DPP v Di Paolo (Unreported, County Court of Victoria, Judge Stuart, 28 March 2018 (conviction); 6 July 2018 (sentence)).

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration by fraud, indecent assault and common assault – Applicant fraudulently misrepresented medical qualifications – Admissibility of evidence – Whether judge erred by admitting business practice evidence – Whether evidence relevant – Whether complainants credible and reliable - Whether verdicts unsafe and unsatisfactory – Any prejudice curable by directions – Reasonably open to jury to convict – Leave to appeal refused – Arico v The Queen [2018] VSCA 135, M v The Queen (1994) 181 CLR 487; Conolly (a Pseudonym) v The Queen [2019] VSCA 123; Dupas v The Queen [2012] VSCA 328 applied – Evidence Act 1995 ss 55 and 137 and Criminal Procedure Act 2009 s 276(1)(a) and Sched 1 cl 4A.

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to obtaining property by deception, indecent assault, common assault and other offences – Jury found applicant guilty of procuring sexual penetration by fraud, indecent assault and common assault –Total effective sentence 9 years and 6 months with non-parole period 6 years and 6 months – Whether judged erred in rejecting R v Verdins (2007) 16 VR 269 principles – Whether sentence manifestly excessive – Whether sentence involved double punishment – Whether judge erred in ordering registration as a sex offender – Sentences well within available sentencing ranges – Applicant poses a risk to the sexual safety of the community Leave to appeal refused – DPP v O’Neill [2015] 47 VR 395 applied – Sex Offenders Registration Act 2004 s 11(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C M Randazzo SC	Melasecca Kelly & Zayler
For the Respondent	Ms F L Dalziel QC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
LASRY AJA:

Introduction

The applicant, Raffaele Di Paolo, has applied to this Court for leave to appeal against his convictions and sentences, which are set out in the table below. The convictions and sentences arise from charges spread over three separate indictments, identified as Indictments A, B1 and C.[1]
[1]Indictment F13261079A, Indictment F13261079B.1 and Indictment F13261079C, respectively.

In the broadest of terms, these charges arise from the activities of the applicant over a 10-year period. Before, during and after that period, the applicant falsely represented that he was a qualified medical practitioner and offered ‘fertility treatments’ to people who came to him as ‘patients’. The allegations were that the applicant obtained money by deceiving clients as to his medical qualifications and carried out numerous intimate examinations, which the clients would not have permitted if they had known he…

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.

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Details

Case: [2019] VSCA 194
Decision Date: 30 August 2019

CaseChat Overview and Summary

Raffaele Di Paolo appealed against his conviction and sentence to the Court of Appeal. The appellant was convicted by a jury of procuring sexual penetration by fraud, indecent assault and common assault. The appellant had fraudulently represented himself as a medical professional to gain the trust of his victims before committing the offences. The appeal challenged both the conviction and the sentence.

The appellant argued that the trial judge had erred in admitting certain business practice evidence and that the evidence was not relevant. The court considered the admissibility of the evidence under the Evidence Act 1995 and concluded that it was relevant and properly admitted. The court also assessed the credibility of the complainants and found that the verdicts were reasonably open to the jury. The appellant further argued that the verdicts were unsafe and unsatisfactory, but the court found that any potential prejudice was curable by directions.

The court examined the sentence, considering whether it was manifestly excessive or involved double punishment. The court found that the sentence was well within the available sentencing ranges and was appropriate given the appellant's risk to the sexual safety of the community. The court also considered the requirement for the appellant to register as a sex offender and found that this was properly ordered under the Sex Offenders Registration Act 2004.

The Court of Appeal refused leave to appeal, finding that the trial judge's decisions were correct and that the sentence was appropriate. The appeal was dismissed, and the conviction and sentence were upheld.

Orders