2016-12-14 r v fischetti [no 5] [2016] actsc 213 · web view49. michael doyle was a man of about...

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Fischetti [No 5]

Citation: [2016] ACTSC 213

Hearing Dates: 4 April 2016 – 30 May 2016, 10 August 2016, 8 December 2016

Decision Date: 14 December 2016

Before: Robinson AJ

Decision: See [86]-[99]

Catchwords: CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty by jury – multiple offences – obtain property by deception – attempt to obtain financial advantage by deception – use a false document – relevant criminal history.

Legislation Cited: Criminal Code 2002 (ACT) ss 326, 332, 346, 347Crimes (Sentencing)_Act (ACT), ss 7(1), 33(1)(h), 33(1)(o), 34(1)

Cases Cited: R v Fischetti [No 4] [2016] ACTSC 292Landsman v R [2014] NSWCCA 328; 88 NSWLR 534Markarian v The Queen [2005] HCA 25; 228 CLR 357Mill v The Queen [1988] HCA 70; 166 CLR 59Nguyen v The Queen [2016] HCA 17; 256 CLR 656Pearce v The Queen [1998] HCA 57; 194 CLR 610

Parties: The Queen (Crown)

Frank John Fischetti (Offender)

Representation: CounselMs M Jones and Ms M. Moss (Crown)

Mr R McCrudden (Offender) between 4 April 2016 and 30 May 2016

Mr W Barber (Offender) on 10 August 2016 and 8 December 2016

SolicitorsACT Director of Public Prosecutions (Crown)

Macquarie Lawyers (Offender) between 4 April 2016 and 30 May 2016

Bevan & Co Lawyers (Offender) on 10 August 2016 and 8 December 2016

File Number: SCC 95 of 2015

ROBINSON AJ:

1. On 4 April 2016, Frank John Fischetti, “the offender”, stood trial before a jury on an indictment containing 13 counts. I directed the jury to return a verdict of not guilty in respect of the 13th count shortly after the trial commenced. The remaining counts were the subject of a lengthy trial.

2. On 30 May 2016, the offender was found guilty by the jury on the following counts:

(a) (Count 1) That between 20 November 2013 and 15 December 2013 at Canberra, he by deception dishonestly obtained property, namely $80,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.

(b) (Count 2) That between 18 December 2013 and 16 January 2016 at Canberra, he by deception dishonestly obtained property, namely $50,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.

(c) (Count 4) That between 1 May 2014 and 28 May 2014 at Canberra, he by deception dishonestly obtained property, namely $50,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.

(d) (Count 5) That between 11 June 2014 and 14 June 2014 at Canberra, he by deception dishonestly obtained property, namely $15,000 belonging to Catherall Pty Limited, with the intention of permanently depriving Catherall Pty Limited of that property.

(e) (Count 6) That between 4 March 2014 and 8 August 2014 at Canberra, he attempted to commit the offence of dishonestly obtaining a financial advantage by deception from National Australia Bank Limited.

(f) (Count 7) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Company tax return for APG Associated Property Group Pty Ltd for 2012.

(g) (Count 8) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Company tax return for APG Associated Property Group Pty Ltd for 2013.

(h) (Count 9) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled APG Associated Property Group Pty Ltd financial statements for the year ended 30 June 2013.

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(i) (Count 10) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Chemical Solution Specialists Pty Ltd annual report for the nine months ended 31 March 2014.

(j) (Count 11) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Michael Doyle Individual tax return 2012.

(k) (Count 12) That between 4 March 2014 and 8 August 2014 at Canberra, he used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine, and because the other person accepts it as genuine, dishonestly obtaining a gain. That document being a document entitled Michael Doyle Individual tax return 2013.

3. I record that the offender was found not guilty of Count 3, being a count of forgery contrary to s 346 of the Criminal Code 2002 (ACT).The Crown case on this count was a largely circumstantial evidence case and it is clear enough, from the jury’s note seeking further directions, that the jury was unable to find, beyond reasonable doubt, that the accused himself physically signed the name “Michael Doyle” on this document. This was the only way the Crown put the case on this count.

4. Counts 1, 2, 4 and 5 are offences contrary to s 326 of the Criminal Code 2002 (ACT) (“the obtain property by deception offences”).

5. Count 6 is an offence contrary to s 332 of the Criminal Code 2002 (ACT) (“the attempt to obtain financial advantage offence”).

6. Counts 7, 8, 9, 10, 11 and 12 are offences contrary to s 347 of the Criminal Code 2002 (ACT) (“the use false document offences”).

7. All of the above offences possess the same maximum penalty, being a fine of $150,000, imprisonment for 10 years or both. I take note of this in accordance with Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30-31].

8. As a consequence of the jury’s verdicts on 30 May 2016, I remanded the offender in custody pending the sentencing hearing. The offender’s sentence will commence from this date. There was no pre-trial custody.

9. With the concurrence of the then counsel for the offender, I requested a Pre-Sentence Report from ACT Corrections.

10. The sentencing of this offender has been delayed for reasons set out R v Fischetti [No 4] 2016 ACTSC 292.

The course of the trial

11. The trial was conducted over 38 sitting days. There were 118 Exhibits. The offender had associations with a number of corporate entities which played a part in the transactions. I say associations because, at the material times, the offender was an undischarged bankrupt and hence should not have been either a director (on the ASIC

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register) or a de facto director as it is sometimes called. It is clear from the evidence that his status as a bankrupt did not deter him from acting as the sole direct ing mind of corporate entities even if he caused another person to sign documents and be named on the ASIC register as if that other person was, in fact, the sole director of the corporate entity.

The offender was known by a number of different names and had different dates of birth recorded. He had also formally changed his name twice.

There were a large number of addresses, bank account details, telephone numbers, suspect documents, signatures and email addresses that were material to following the course and development of the transactions as they played out. To take account of the volume and materiality of evidence tendered, the parties produced a number of aide memoirs and chronologies which were given to the jury in addition to the exhibits.

The offender, by his counsel, did not open to the jury as to the basis of his factual contentions. Neither were these factual contentions, during the course of the evidence in the trial, clearly articulated to the Court. As the trial continued the only possibility, open on the evidence, was that one or more of the other persons involved in the various transactions had really perpetrated the frauds and in some way, the offender was not involved in any wrongdoing. A great deal of cross-examination was directed at probing the witnesses on issues which, on the surface at least, were not answers to the Crown’s contentions but which might elicit a favourable line of inquiry or circumstance for the defence. One consequence of not disclosing the factual basis of defence contentions is that it was often difficult to determine the relevance of evidence. It was only in final address that the offender, by his counsel, made his factual position clearer.

Although I have recorded the manner in which the trial was conducted, these matters in no way increase the sentences otherwise appropriate to be passed upon the offender.

Crown case

12. In the summary of the 12 counts set out below, I have extracted only an outline of the facts as they pertain to the transactions sufficient to demonstrate the nature of the offending in each separate case. There was a degree of planning, co-ordination, comparative business sophistication, cultivation of persons and, of course, deception in the transactions. I will address this later in my remarks on sentence.

13. In order to set out the facts relevant for sentence, it is convenient to group the offences. Counts 1, 2, 3 and 5 concern four sums of money obtained by the offender by persuading Michael Catherall to cause Catherall P/L to pay those sums into bank accounts connected with the offender. The total of the four sums was $195,000.

Counts 1, 2, 3 and 5

14. Mr Catherall and his wife owned the shares in Catherall P/L which operated a business called CopyQik in Canberra and delivered colour print, photocopying, graphic design, printing and scanning services. The offender, who was known to Mr Catherall as Frank Divido, was a customer. Their acquaintance goes back to at least March 2011. The offender would bring to the premises documents to be scanned and then sent to an email address specified by the offender. A friendship of sorts developed over time. Mr Catherall paid some attention to the documents he scanned. One set of documents evidenced the offender owning a boat worth $3.9 million and a conversation occurred in relation to this fact. Other documents evidenced business transactions through

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various entities. Over time, Mr Catherall believed or, more accurately, was induced to believe by the offender that the offender had substantial means and was a man of commerce instead of an undischarged bankrupt in receipt of carer’s benefits.

15. In late 2013, the offender and Mr Catherall met at a coffee shop, as was their routine at that time. The offender said that he and his business partner, Martin Green, had an office in Sydney, which was located below an insolvency company’s office. The offender claimed that the insolvency company would sell assets belonging to people who were bankrupt and would alert the offender to those properties which might be a development opportunity. The offender claimed he was advised of about 20 projects a month and because he could not undertake all of them, he would pick the investment opportunities that he could turn over in the fastest time. Mr Catherall enthusiastically embraced the prospect of investments in such opportunities.

Count 1 – obtain property by deception ($80,000 for the Sorrento property)

16. The offender told Mr Catherall that the insolvency company told him about a property investment in Sorrento, Gold Coast, Queensland (“the Sorrento property”). The offender said that he already had a purchaser for the Sorrento property lined up, who was a builder. The Sorrento property was in three blocks on a canal. The offender told Mr Catherall of the plan for the Sorrento property and the plan that the builder had in mind for it. Mr Catherall asked the offender some questions about the project and got what he regarded as satisfactory answers. The offender said that all he needed was the money for the deposit. He told Michael Catherall that he had used other third parties before to contribute towards the deposit.

17. After that meeting, sometime in December 2013, Mr Catherall received a phone call from Martin Green. Martin Green told Mr Catherall that he worked for Churchill Lawyers, and the offender had told him Michael Catherall was interested in investing in the Sorrento property. Martin Green told him that the settlement of the Sorrento property was due on 14 February 2014. Upon settlement, Mr Catherall would receive his investment of $80,000 back plus $40,000. Mr Catherall agreed to invest $80,000 in the Sorrento property. Martin Green said words to the effect of:

“Frank must really like you to bring you in on this deal when it was almost done and dusted.”

18. On 14 December 2013, $80,000 was credited to a bank account controlled by the offender. The Sorrento property was never purchased and the money was immediately disbursed for other purposes.

19. There was some evidence of an attempt to acquire the Sorrento property but that evidence had no relationship with what Mr Catherall had been told and which caused Catherall P/L to part with its money.

Count 2 – obtain property by deception ($50,000 for the Seaforth property)

20. On 19 December 2013, Martin Green told Mr Catherall that there was a further property investment opportunity the offender was involved in, which required the sum of $50,000.

21. On 23 December 2013, Martin Green emailed Mr Catherall and explained that Chemical Solutions was to pay $4.3 million for two properties at 173 and 173A Seaforth Crescent, Seaforth NSW 2092 (“the Seaforth property”). The valuation for the land

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was expected to be $8 million. The offender was to pay $4.3 million for the Seaforth property. The blocks were to be subdivided and then sold. The investment was a 50% return on the $50,000 in 10 weeks or a 100% return for 6 months.

22. On 13 January 2014, the offender, Martin Green and Mr Catherall met at the Glass House Cafe. The Sorrento property and the Seaforth property were discussed. Mr Catherall believed that the investment deals were legitimate. Mr Catherall agreed with the offender that he would participate in the property investment for the Seaforth property.

23. On 14 January 2014, Mr Catherall transferred $50,000 to an account controlled by the offender. The property at Seaforth property was never purchased. The funds were immediately dissipated for other purposes.

Count 4 – obtain property by deception ($50,000 for the Nicholls property)

24. Caterina Commisso was the owner of the property located at 75 Sue Geh Circuit, Nicholls, in the Australian Capital Territory (“the Nicholls property”). In March 2014, she put the property on the market and retained Jordans Lawyers to act for her in the sale.

25. On 11 March 2014, the offender attended an open house at the Nicholls property with his wife. The offender then negotiated the purchase of the house. On 14 March 2014, the offender handed over a signed a contract for sale to Mrs Commisso and paid a 5% deposit. A further 5% deposit was paid on 6 May 2014 and the deposit ultimately released to the vendor.

26. The proposed purchaser was Epicure Property Investments P/L. That was a corporation which had come into existence on 5 March 2014 and had one director according to the ASIC register, Michael Doyle. I am satisfied beyond reasonable doubt that Michael Doyle did not consent to this appointment and knew nothing of it at that time. The significance of this is referred to below.

27. In about mid-May 2014, the offender told Mr Catherall that he was in the process of purchasing the Nicholls property. The offender claimed he needed $90,000 for the deposit or he would default and the purchase would be terminated. In fact, the deposit had already been paid as above. Mr Catherall agreed to loan the offender $50,000, and the offender said he would repay Mr Catherall double that amount when the house settled.

28. On 26 May 2014, Mr Catherall transferred $50,000 to a bank account controlled by the offender. On 28 May 2014, the offender withdrew $50,000 in cash and used it for other purposes.

29. The sale of the Nicholls property did not proceed and the agreement for sale was terminated in August 2014.

Count 5 – obtain property by deception ($15,000.00 for Logistics Company)

30. On 12 June 2014, the offender told Mr Catherall that he was putting all his money into buying out his partner in a logistics company, but he was $15,000 short. Mr Catherall agreed to lend to the offender $15,000 to assist the offender in buying out his business partner. The offender said he would pay Mr Catherall back in one week.

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31. There was at that time no contract for the purchase of the logistic business or a buy out of an interest under it on foot.

32. On 12 June 2014, Mr Catherall transferred $15,000 into an account controlled by the offender. The offender did not use the money to buy out a business partner in a logistics company. The money was dissipated over the next few days.

Count 6

33. It is clear on the evidence that the offender wished to acquire the Nicholls property as a home for his family. The acquisition followed an eviction by the ANZ of the family from a house at Phyliss Ashton Circuit, Gungahlin for default on the mortgage. Although having paid the deposit, substantial funds were needed to settle the transaction. Count 6 is concerned with the attempt by the offender to obtain a loan of $1.4 million from the National Australia Bank (“NAB”), through its division Homeside Lending.

34. Michael Mitry of Australian Mortgage & Insurance Group Pty Ltd was a mortgage broker. Mr Mitry had arrangements in place whereby he could make applications for finance online to the NAB through a portal.

35. As set out above the purchaser, Epicure Property Investments P/L had been incorporated in March 2014 and had no business or funds.

36. On 2 or 6 May 2014, Michael Doyle met with Clinton Williams and Michael Mitry at Novotel Brighton Le Sands. Michael Mitry wished to meet with Michael Doyle as he was also the sole director of Chemical Solutions, which was a company that was to submit its financial information in support of the application for finance for the purchase of the Nicholls property. Michael Doyle believed that Chemical Solutions was to be a guarantor for the loan. Michael Doyle signed paperwork believing he was signing in his capacity as Chemical Solutions’ sole director and not in any personal capacity.

37. On 8 May 2014, the Nicholls property was inspected by a property valuer retained by Homeside Lending. The property was valued at $1.75 million.

38. On 26 June 2014, an application for a mortgage in the sum of $1.4 million and in the name of Epicure Property Investments was submitted electronically by Michael Mitry to the NAB with supporting documentation. Further supporting documentation was electronically forwarded to the NAB at a later date. Michael Doyle was listed as the guarantor. The balance sheet and profit and loss statements of Chemical Solutions submitted in support of the application demonstrated a substantial and profitable company with drawings available from that company to Michael Doyle to service the proposed loan.

39. I am satisfied that beyond reasonable doubt that, at no time, did Michael Doyle consent to being made a personal guarantor on the application for finance to the NAB for the Nicholls property.

40. I am also satisfied that a document setting out Michael Doyles’ assets and liabilities and which was provided to the NAB was false and not completed by Michael Doyle nor authorised on his behalf.

41. By 2 July 2014, the NAB had given unconditional approval for the loan. By 11 July 2014, documentation to give effect to the loan had been executed and returned to the bank.

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42. On about 10 July 2014, the NAB was alerted by the Australian Federal Police to the possibility that the offender was fraudulently attempting to apply for a mortgage over the Nicholls property.

43. The mortgage was not granted to Epicure Property Investments.

Counts 7 - 12

44. It was not in dispute that false documents were provided to the NAB in support of the application for mortgage finance submitted by Epicure Property Investments. The Crown case was that the offender caused these documents to be submitted by Mr Mitry to the NAB.

45. Much of the evidence was taken up with the provenance of these false documents and the part played in their manufacture by the offender and also the route by which both the documents and the information in them evolved into their final form and travelled to Mr Mitry for submission to the NAB.

These documents were:

Count 7 A.P.G Associated Property Group Pty Ltd Company Tax Return for 2012

Count 8 A.P.G Associated Property Group Pty Ltd Company Tax Return for 2013

Count 9 A.P.G Associated Property Group Pty Ltd Financial Statements for end 30 June 2013

Count 10 Chemical Solution Specialists Pty Ltd (previously called A.P.G Associated Property Group Pty Ltd) Annual Report for the 9 months ended 31 March 2014

Count 11 Individual Tax Return for Michael John Doyle for 1 July 2011 – 30 June 2012

Count 12 Individual Tax Return for Michael John Doyle for 1 July 2012 – 30 June 2013

46. Each of the documents purport to be signed or initialled by Michael Doyle. He was closely cross examined on the documents and disclaimed their authenticity.

47. The documents were populated by invented figures given to Mr Trovas by the offender.

Additional Findings

48. The offender chose not to give evidence at his trial as was his right. In the Crown case there were a number of persons who played important parts in the various transactions and who had dealings and communications with the offender.

49. Michael Doyle was a man of about 59 years of age in 2013 when he was first introduced to the offender by Martin Green. Mr Doyle had a history of investment banking specialising, it seems, in mergers and acquisitions. In 2013 he was working as a consultant and according to his taxation returns, was earning a very modest income. He had not accumulated a great value of assets. Mr Green thought that Mr Doyle may be in a position to become a non-executive director of the company associated with the offender. Mr Doyle agreed to do this. He saw this as a way he might, in due course,

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become chairman of a substantial enterprise. As part of this engagement, Mr Doyle sent photocopies of various documents of identification (drivers licence, passport and like matters) to Mr Green or the offender. Unbeknown to Mr Doyle at the time, when he agreed to become a director, that directorship entry on the ASIC register was retrospectively backdated to 23 November 2011. After he accepted the directorship, Mr Doyle was kept in the dark as to the company’s business, including not being given access to its financial statements. The documents of identification supplied by Mr Doyle were able to be and were be used for other purposes.

50. Although many of Mr Doyle’s answers in a very lengthy cross-examination cast doubt, in my mind, upon his business acumen, I find that he was an honest witness who was used by the offender, as was his name and identity “Michael Doyle” to carry out parts of the transactions which make up many of the offences.

51. Mr Green, in 2013, was described as a solicitor with the Sydney firm of Churchill Lawyers at several points in the evidence. In other parts he was described as a consultant to the firm. Mr Green knew Mr Doyle because their paths crossed when working in the same office building in 2009. Mr Green assisted in many of the transactions involved in the offences. Because he was not called as a witness, I refrain from making any finding as to whether he acted in accordance with a dishonest plan agreed between the offender and himself or whether he acted as agent for the offender.

52. Mr Mitry was a finance broker. There is no evidence that he ever deviated from carrying out his instructions to the best of his ability. It was conceded by the offender in final address that he had been honest in his dealings.

53. Mr Trovas was a public accountant. He met the offender in early 2013 and knew him as “Frank Divido”. He acted upon instructions from the offender and produced sets of accounts and other documents. As an accountant authorised by ASIC to make online changes to the ASIC register, Mr Trovas brought into existence corporations and changed details of those corporations. This he did in accordance with instructions given by the offender. In this way the offender exploited the identity of Michael Doyle who was added as a director to other corporations. As it turned out, Mr Trovas was not paid for his work. He invested his labour in the business affairs of the offender. The opportunity cost of this may not have been high though. Mr Trovas himself was a bankrupt who had “just been through cancer” and who was in a poor financial position. Mr Trovas was hoping that he would be able to combine an existing business he had an interest in with that of the offender’s business and obtain a financially rewarding position in the combined enterprise. It was eventually conceded that Mr Trovas had also been honest in his dealings. He did not make up or invent himself any figures appearing in the financial documents submitted to the NAB.

54. Clinton Williams, also referred to in the evidence as Clinton Sarina, appears to have had some role in the organising of finances. He attended an important meeting and was the source of some instructions to Mr Mitry. It is not possible, on the evidence, to determine what role he played in the transactions.

55. In his final address, counsel for the offender, put to the jury that Mr Doyle and Mr Green were the central figures. They had an association going back to 2009. They were “puppeteers”. When the evidence was properly analysed, so the submission went, the offender had only a minor part in the transactions. Counsel’s address was

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rather non-specific as to the part the offender played. By this last observation, I make no criticism of the counsel for the offender.

56. I record that, in accordance with s 34(1) of the Crimes (Sentencing) Act 2005 (ACT), I have not increased the severity of the sentences for the conduct of the defence case.

Objective seriousness

57. I have considered these dishonesty offences primarily in terms of the amount of money involved, the degree of planning, the times over which the offences were perpetrated and the motivation for the offences.

58. The sums of $80,000, $50,000, $50,000 and $15,000 were obtained from Catherall P/L whereas the sum of $1.4 million was sought from the NAB. The false documents were made or used for the purpose of attempting to obtain that same $1.4 million.

59. The degree of planning differed between the Catherall P/L offences and the attempt to obtain the $1.4 million.

In the Catherall P/L offences, the offender cultivated a relationship with Mr Catherall over some period of time, inducing Mr Catherall enthusiastically into implausible investments and then soothing his concerns with further untrue explanations when settlements did not occur. The offender enlisted Mr Green’s assistance to perpetrate this deception. I repeat that as Mr Green was not called as a witness I am unable to determine whether this was knowingly deceptive assistance.

In the attempt to obtain the $1.4 million, the degree of planning and comparative sophistication was much greater. Many more people were brought in to play their respective parts which I have outlined above. Mr Doyle, Mr Green, Mr Mitry, Mr Tovas and Mr Williams were each involved. The offender controlled and organised the venture. There was a degree of compartmentalisation in this organisation. False documents were created which were calculated to induce the NAB to lend $1.4 million. Mr Doyle’s identity was exploited. The scheme was almost successful as the NAB gave unconditional approval to the loan of $1.4 million and it was only because the Australian Federal Police obtained information from a different source that the scheme faltered at the last hurdle.

Some indication of the planning and sophistication can be obtained from a consideration of the number of aide memoirs and chronologies given to the jury with the consent of the parties.

60 Documents or parts of documents submitted to the NAB and the subject of the offences came into existence at various times. Some were in existence long before March 2014 when Count 6 of the indictment alleged the attempt to obtain an advantage from the NAB commenced. These documents were marshalled, added to and rearranged in the period between March and July 2014. Other documents came into existence in that period.

61 On the evidence, there is no other explanation for this offending than the motivation of financial gain.

62. The Crown called Mr Catherall again on the sentencing hearing. He gave evidence that in fact, the $195,000 had been borrowed in order to make the investments. The offences had had a severe psychological impact upon him such that he had undergone counselling for six months as a result. Mr Catherall also gave evidence that he had

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received the sum of $70,000 from Mr Matthew Smith as recompense on behalf of the offender. The money had been received after the trial. The circumstances of this receipt are set out below.

Subjective matters

63. A Pre-Sentence Report from ACT Corrections dated 4 August 2016 was tendered on the sentencing hearing. The authors reported that the offender was seen at the Alexander Maconochie Centre where the offender was ‘pleasant and engaged in conversation’ but that he declined to provide information for the report due to the offender’s current appeal against the guilty verdicts.

48. It is, of course, the offender’s choice not to co-operate with ACT Corrections Services. In Landsman v R [2014] NSWCCA 328; 88 NSWLR 534, there is a wide ranging discussion concerning “post-trial” admissions. As the cases cited there demonstrate, different considerations may apply to the different appeal regimes.

The discussion in Landsman at [45] to [63] demonstrates that the offender would be acting rationally in having regard to the possibility of any admission made by him to ACT Corrections being used against him in (a) the application of the proviso by the Court of Appeal, (b) if a question arose whether the appropriate order of the Court of Appeal was for an acquittal or a retrial and (c) the tender of that admission in any retrial.

For present purposes, it is not necessary to make any further assessment of the prospects of that possibility coming to pass on the hypothetical situation.

49. On the sentencing hearing the offender did not give evidence.

50. Nevertheless there is evidence concerning the offender’s position. The offender is now 54 years of age. He is an undischarged bankrupt and was, prior to his custody, in receipt of a carer’s allowance. He has married for a second time and has children from his first and second marriage. His second marriage is of 20 years duration. He originally came to Australia from Naples as a child and his father was a concreter and builder. The offender was brought up in Canberra and went to school there to year 10 and then completed an apprenticeship as a mechanic after which he set up his own workshops and progressed to other businesses including property development. Dr Nielssen found no indicators of cognitive impairment and the offender has no adverse involvement with drugs and alcohol.

51. The offender’s wife gave evidence on the sentencing hearing. She has not been in the workforce but has attended to the family. Mrs Grace gave evidence that currently she is living in the household with the offender’s 87 year old father, Antonio Fischetti, and one of her sons aged 18. The offender’s father is in very poor health and needs constant attention. He has many medical problems and can only walk in a frame. He has been ill for many years. Previously the offender had been his carer. The heavy burden of that care has now fallen upon Mrs Grace and her son. Attempts to access government help have apparently not been successful because the offender’s father will not agree to it. He has apparently expressed the desire to die in the household with his family around him. He is fearful that government officials will interfere in his living arrangements. Attempts to access social security payments have also not been successful.

52. I accept that a heavy burden has been cast upon the offender’s family. I also accept that the family is now living on charity from friends and family. The offender was the

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sole breadwinner for the family. I will take these factors into account in accordance with s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT).

Dr Olav Nielssen

69. The offender relied on a report from Dr Olav Nielssen dated 4 December 2016. The doctor interviewed the offender by audiovisual link to the Alexander Maconchie Centre on 30 November 2016. The doctor recorded that there was a limitation to his opinion in that it had been prepared on the basis of a single interview of Mr Fischetti without corroborative information about his state of mind in 2014, the longitudinal course of his mood symptoms, or a detailed understanding of the circumstances of the recent offences or past offences and how they might have been related to symptoms of mood disorder. Hence the doctor was unable to answer the question he had been asked by the solicitors for Mr Fischetti, namely:-

Whether Mr Fischetti had impaired mental function at the time of the offences, or the extent to which that impairment affected his ability to exercise appropriate judgement, to make calm and rational choices or think clearly, his ability to recognise the wrongfulness of his conduct, obscured his intent to commit the offences or contributed causally to the commission of the offences

70. I should add that even if Dr Nielssen had been able to give a favourable opinion, in that the offender’s responsibility for the offences was diminished by reason of mental function impairment, I would have hesitated before acting upon that evidence because of the uncorroborated history given to Dr Nielssen. First, that history seemed to be at odds with the true position. The doctor reported, for example, that-

Mr Fischetti confirmed that he had been found guilty at trial of a series of dishonesty offences and was due to be sentenced in the ACT Supreme Court in the next month. He said that the total amount involved was around $195,000.

…

Mr Fischetti said that the offences included the use of the money or purposes other than the agreed purpose, and confirmed that he was convicted of other offences on the Indictment, including use of a false document. He confirmed that his past convictions were raised during the trial as tendency evidence.

It may be that the offender’s statements to Dr Neilssen were not deliberately misleading, as his counsel suggested, but they are inaccurate in any event.

Second, the offender has made a number of false statements when it was in his interests to do so, as judged by the jury verdict.

71. Dr Nielssen did make a diagnosis of a depressive illness on the history given to him by the offender and made the suggestion that Mr Fischetti may also derive benefit from a further trial of treatment with an antidepressant medication under the supervision of a psychiatrist. I am unwilling to act on his evidence that because of this condition, the offender’s time in prison would be more onerous. No other medical evidence was tendered, such as a history and treatments from his local doctor, and no attempt was made to call other evidence which might confirm the history. Whilst the rules of evidence do not apply without an order of the Court, there was not a firm foundation established to act on the doctor’s opinion.

Matthew Smith

53. Matthew Smith was called in the offender’s case on sentence. He gave evidence that he and the offender had become friends and as a result had gone into a business

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venture together. Mr Smith gave evidence that the offender had obtained the rights to import into Australia and New Zealand an energy drink manufactured in the Netherlands from a USA company which held the global rights. Mr Smith had become a director of the Australian company formed to exploit the rights and had put $2 million (by transferring the money to a bank account in USA) into the venture to purchase the stock to be sold. This stock, or part of it, had arrived in Australia. Mr Smith explained that the offender had not put money into the venture. His part and contribution was the obtaining of the Australian licence. The shares were held in this company by Mr Smith and “Frank Divido” as to 50% each. This is borne out by an ASIC search of the company tendered in evidence as is the fact that “Frank Divido” recently ceased to be a director of the company on 22 September 2016.

54. Mr Smith also explained that he was willing himself to pay the further $125,000 necessary to reimburse Catherall P/L so as that company would not be out of pocket. He explained that he hoped to recoup that full $195,000 from the offender out of the offender’s share of the proceeds of the sale of the energy drinks. Mr Smith went so far as to have a deed drawn between himself and Mr Catherall to give effect to this arrangement. Mr Catherall, on legal advice declined to sign the deed but I have no doubt that it is Mr Smith’s current intention to carry out this arrangement. He expressed a proper motivation for doing this (paying out an innocent party) but against the background that the paying out of Catherall P/L debt would be a matter taken into account on sentence. It is Mr Smith’s desire to employ the offender when he is able to do so because he believes the offender has much to offer in business dealings and would complement Mr Smith’s abilities.

55. It is appropriate to also record that Mr Smith has signalled an intention to assist the offender’s family with accommodation in Canberra, an offer which the family will take up.

56. At the end of his evidence in chief, I asked Mr Smith whether he was aware that Mr Fischetti is an undischarged bankrupt to which Mr Smith answered ‘no’. There was no exploration as to how and when the offender obtained, if he ever did, a valuable licence to import energy drinks into Australia. However, if there was such a valuable licence, presumably it is vested now in the offender’s trustee as either being “property” or “after acquired property”. Although it is possible to be concerned at the wisdom of going into business with the offender, I do not doubt the veracity of the evidence given by Mr Smith.

Criminal history

57. The offender has a criminal history with a number of relevant offences occurring in both the Australian Capital Territory and New South Wales over many years and commencing in 1980. Those offences involved deception and fraud. Two matters are particularly noteworthy.

58. On 20 June 2003, the offender was sentenced in the ACT Supreme Court to a period of 3 years and 4 months imprisonment after receiving credit for 2 months pre-sentence custody. The offender was found guilty of making a false instrument and using a false instrument after a trial by jury. The sentences were concurrent. The offences involved the falsifying of a stolen bank cheque in the sum of $252,500. The sentencing judge described this “as a well-planned and substantially successful fraud” and where no monies were recovered. He also described the offender as the organiser of the

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scheme. The offences were carried out together with a Mr Sharma, who was 17 at the time of the offences and who the judge said had a lesser involvement.

59. On 27 November 2003, the offender was sentenced in the NSW District Court after having pleaded guilty to seven counts of making false instruments and one count of engaging in proceeds of crime transaction. In addition, 24 further offences were taken into account on a Form 1. The offender received an effective 3 year sentence for this offending after allowance for a discount of 50% for pleas of guilty and assistance. The counts involved a fraud on the Commonwealth Bank involving the total sum of $1,919,867 of which $395,855 was recovered. The agreed statement of facts recited that the offender had “struck up an association with Michael Sil, then an employee of the CBA, and discussed electronic banking procedures adopted by the CBA and internal transfers of debits and credits. After a few initial discussions, the accused obtained about 20 sets of blank office entry debit and credit forms from Sil”.

60. The offender’s relevant criminal history allows me to permit him little leniency in sentencing him for the current offences.

61. The offender also has a large number of traffic offences which I will put to one side.

Rehabilitation Prospects

62. On the evidence I cannot find any great chance of rehabilitation of this offender. He first committed dishonesty offences at the age of 19. He has twice been imprisoned for a substantial period for dishonesty offences and, at the age of 52 to 53, is still committing dishonesty offences of significant magnitude. He has not expressed contrition or remorse. I do not regard the offender’s role in causing Mr Smith to commence the process of reimbursing Catherall P/L as evidence of contrition or remorse. It is the recognition of a self-interest in minimising punishment. Nevertheless, it is the right and proper thing for the offender to do even if, for the moment anyway, he is incurring an obligation to repay another person instead of Catherall P/L. Accordingly, I take this circumstance into account in accordance with s 33(1)(h) of the Crimes (Sentencing) Act 2005 (ACT)

Purposes of Sentencing

63. I have had regard to purposes of imposing a sentence set out in s 7(1) of the Crimes (Sentencing) Act (ACT). In this case all seven purposes are engaged. I do, however, regard adequate punishment of the offender and specific and general deterrence as being at the forefront of the considerations in this case.

64. In respect of the offences involving the obtaining of money from Catherall P/L, it is possible to differentiate between the offences by reason of the amount of money obtained by the offender. However, there is a significant similarity of offending and a level of stress suffered as a result of the offending as well as the amount of the loss.

65. In the case of the six false documents, the timing and origins differed as did their subject matter. The offender thought that all six instruments were necessary in order to procure the result of persuading the NAB to lend the sum of $1.4 million. I have not seen the need for “punctilious identification of the distinguishing features as between these offences”. The documents were produced to have the hallmarks of authenticity and the offender caused them to be submitted by a person with whom the NAB had a course of dealings. The information in the documents stands out as bold fabrications

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not mere exaggerations of doubtful materiality. The documents each played a part in a co-ordinated plan to cause the NAB to pay out the money.

Totality

66. I have had regard to the principles set out in Mill v The Queen [1988] HCA 70; 166 CLR 59, 62-63, Pearce v The Queen [1998] HCA 57; 194 CLR 610, 623-624 and the recent observations in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [61]-[65] in the process of both structuring the sentences and then reviewing the overall result to determine whether that result adequately reflects the totality of the criminality involved.

Order

67. I am satisfied that no penalty other than imprisonment is appropriate.

68. On count 1, you are convicted and I sentence you to a period of imprisonment for 21 months. This sentence will commence on 30 May 2016 and end on 28 February 2018.

69. On count 2, you are convicted and I sentence you to a period of imprisonment for 18 months. This sentence will commence on 30 May 2016 and end on 29 November 2017.

70. On count 4, you are convicted and I sentence you to a period of imprisonment for 18 months. This sentence will commence on 30 May 2016 and end on 29 November 2017.

71. On count 5, you are convicted and I sentence you to a period of imprisonment for 9 months. This sentence will commence on 30 May 2016 and end on 28 February 2017.

72. On count 6, you are convicted and I sentence you to a period of imprisonment for 3 years and 3 months. This sentence will commence on 30 November 2018 and end on 28 February 2022.

73. On count 7, you are convicted and I sentence you to a period of imprisonment for 18 months. This sentence will commence on 1 March 2018 and end on 31 August 2019.

74. On count 8, you are convicted and I sentence you to a period of imprisonment for 18 months. This sentence will commence on 1 March 2018 and end on 31 August 2019





79. The aggregate sentence commences on 30 May 2016 and finishes on 28 February 2022, being a total of 5 years 9 months and 27 days.

80. In respect to the aggregate sentence, you will not be eligible for parole before 29 August 2019, being a non-parole period of 3 years and 3 months.

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I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Robinson

Associate:

Date: 14 December 2016

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