District Court New South Wales Medium Neutral Citation: R v MARTINO [2023] NSWDC 308 Hearing dates: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Criminal Before: Noman SC DCJ Decision: The offender is convicted. The sentence is backdated by 2 months to reflect the time solely in custody and a further 2 months in applying totality with the current sentence. This will be back-dated from 21 September 2023, the current non-parole period. The sentence, reduced by 10% to acknowledge the plea, and taking into account the offence on the form 1 is 2 years and 9 months imprisonment with a non-parole period of 1 year and 8 months to date from 21 May 2023. The non-parole period expires on 20 January 2025 and the term expires on 20 February 2026. This variation to the statutory ratio to 60% gives effect to a finding of special circumstances. By accumulating this sentence on the existent sentence the overall sentence is one of 3 years and 2 months with an overall non-parole period of 2 years and 1 month. This is an overall ratio of 65%. Catchwords: SENTENCING — Relevant factors on sentence — Deterrence — General deterrence – risk of re-offending – limited genuine remorse – totality – serving sentence for similar unrelated offences – special circumstances Legislation Cited: S192E(1)(b) Crimes Act 1900 (NSW) Category: Sentence Parties: Rex; Antonio Domenico Martino Representation: Solicitors: Crown: J Menzies Offender: Self-represented File Number(s): 2018/241801 JUDGMENT 1. The offender, Antonio Martino aka Domenico Martino, appears for sentence on one offence of dishonestly obtaining a benefit by deception contrary to s.192E(1)(b) Crimes Act. This relates to obtaining $50,000. The maximum penalty is 10 years imprisonment. 2. The maximum penalty operates as a legislative guidepost and represents the legislature's assessment of the seriousness of the offence. 3. When sentencing on this offence, the offender asks that I take into account another offence under the same offence provision, this relating to obtaining $8005.37 from the same victim. I consider it appropriate that I take this further matter into account and I do so in accordance with the principles set out in the guideline judgment. 4. The offender entered a plea in this Court after the matter was listed for trial although the trial date was vacated. He is entitled to a reduction of 10% to his sentence to recognise the timing of the plea. The Crown case was undoubtedly strong, and this plea does not of itself denote remorse. 5. There are agreed facts signed by the offender. I have read the full facts and recite only part. I note that there were agreed facts filed with the registry. They were signed by both parties and accepted as agreed. Somewhat inexplicably the Crown agreed to retract a number of aspects of the agreed facts addressing the description of the identification documents. I disregard those aspects now withdrawn. 6. The facts of the offence for sentence, and that on the form 1, are obliquely factually related to subsequent conduct for which the offender was sentenced by Her Honour Judge Sweeney [as she then was]. 7. The offender somehow obtained documents to pass himself off as Giovanni Martino, a real person who merely shared the same surname. The offender used identification documents not alleged to be false to contact CBUS superannuation in December 2016 and to persuade the organisation to release superannuation funds held in the victim's name into a SMSF controlled by the offender. He used a driver's licence, a Medicare card, and a statutory declaration that was not witnessed by the person purported to be the witness. Where these documents were obtained from is not disclosed. 8. On 29 December 2016 $50,000 was rolled over and deposited on 6 January 2017. This is count 1. 9. On 31 January 2017 $8005.37 was rolled over and deposited on 7 February 2017. This is the form 1 conduct. 10. The offender obtained and used identification documents, established a SMSF in his name and he used an address previously used as his address on bail documents. 11. The tendered documents disclose that after these offences were concluded the offender used the victim's identity in March and April 2018 to secure a second mortgage against the victim's property to use to post bail. That is the loose factual connection although it does not inform the seriousness of the index offending. 12. The offence was evidently planned. The offender somehow obtained identification cards linked to the victim of sufficient quality to affect his fraud. He exploited what must be regarded as a lax system. He was involved over two months to commit the principal offence and a further month for the form 1 offence. Other than submitting the application and following up on his request there was limited activity. There was no particular sophistication. Both offences were committed whilst he was serving a sentence for other fraud offences. This reflects some ingenuity and an ability to perpetrate the fraud whilst confined. It is unclear how he accessed documentation and forwarded his application for release in such confined circumstances. The amount involved was not insignificant although the offence allows for far greater amounts and far more sustained conduct. 13. I determine the offence to be a moderately serious offence. 14. I have considered factors advanced that may inform moral culpability. The offender relies on childhood disadvantage occasioned by sexual abuse. This in turn is relied upon to inform his mental health issues. I shall return to some aspects later. Dr Roberts, psychiatrist, opined the offender met the diagnoses of PTSD, major depressive disorder, substance use disorder, anti-social personality disorder and a possible neurocognitive disorder. Dr Roberts blandly noted the statistical association between childhood sexual assault and criminality and opined it would have disrupted his education and employment. 15. I do not downplay the role sexual abuse would have on any victim, and particularly a child. It does not of necessity explain all life choices and pathways. The offender disclosed the abuse by a priest to the psychologist who prepared the report placed before Judge Sweeney. He disclosed in addition that his teacher sexually abused him to Dr Roberts. Further, he told Dr Roberts he had no children and informed Judge Sweeney in 2022 he had a son. He informed a counsellor he was unable to complete his schooling and yet informed the court regarding his 2010 offence that he had tertiary qualifications. I observe the offender has been charged with producing a false medical report used in those proceedings. There has been no determination of guilt. 16. The offender is an unreliable historian. There are inconsistencies. He also has the disadvantage of coming before the court as a person with limited credibility, a person who lies and misrepresents to achieve a goal. 17. I am unable to determine the accuracy of any background reported. I am not satisfied that his background, even if accepted, serves to reduce his moral culpability. 18. At the age of 47 the offender presents as a serial fraudster. That he assumed aliases is supported by the long list of aliases on his NSW antecedents. The offender has a considerable number of entries on his criminal history in both NSW and Victoria dating back to 1994 when he was 18. These entries document many fraud or dishonesty offences over the years with an aberrant sexual assault upon his then partner in 2010. I have the CCA judgment for that offending. I am assisted by the sentencing remarks of Judge Sweeney that document his 2018 offending. A number of the offender's submissions rely on this judgment. He has received various sentencing outcomes including imprisonment. The offender's antecedents operate to disentitle him to leniency. 19. I have reviewed his custodial periods including 2 years and 2 months between 1995 and 1998 in NSW, periods in Victoria in 2000 and 2003, over 7 years between 2010 and 2017 [being the period in which he committed the index offences], 2 months in 2018, over 18 months from 2020 to 2022 and then re-entering custody on 22 October 2022. 20. The offender was arrested on this offending on 7 August 2020. The offender was sentenced to serve balance of parole from this date until 29 September 2021. Judge Sweeney, in acknowledging the balance of parole, commenced sentence from 1 October 2020. The non-parole period expired 31 March 2022. 21. He was rearrested on 22 October 2022 for further fraud offences committed between January and March 2017; thus overlapping the index offending. Those facts are before me. They reflect a remarkably similar scheme although there is considerably more information about his conduct detailed in those facts. He was sentenced to a term of 18 months with a non-parole period of 9 months to date from 22 December 2022. The non-parole period expires on 21 September 2023. 22. This reflects that there is a period between 22 October and 22 December 2022 during which the offender was on remand. I shall take this period of 2 months into account when determining sentence. 23. The offender has written to the Court expressing his insight and remorse. He has offered to make repatriation of the stolen funds. I observe he has made this offer in two statutory declarations. He has not made the payments. He indicated from the dock that he had a legitimate source of money and could have made the payment. It is trite to observe his preparedness to swear a false statutory declaration as evidenced in his perverting the course of justice to secure bail and the use a forged witness signature to a statutory declaration to commit the index offence. Unless the payment was made, and with some comfort about the legitimate source of the funds, I would decline to act on either statutory declaration as reflecting the ultimate outcome. 24. I accept there to be limited genuine remorse. 25. I am assisted by a sentencing assessment report prepared with consultation with the offender and one of his brothers. The offender's anti-social connections and attitudes are recorded. His previous substance abuse is noted. It is recorded the offender does not advance substance abuse to inform this offending and there is a claim of currently being abstinent. His insight into his pattern of offending is considered therein to be superficial involving minimisation of the severity of the offending. His previous poor engagement with community-based orders is recorded. 26. Although increasing in age, he offended relatively recently, and his offences are not of the general category where an offender's risk decreases with age. 27. The offender also tendered two psychiatric reports of Dr Roberts, both prepared to support his civil claim for compensation for asserted child sexual assaults perpetrated upon him at school by a teacher and at church by a priest. Although a statement of claim has been filed neither matter has resolved or entailed findings. Neither therefore addresses this offending or possible causative factors. Much of the content of the reports is not within the author's expertise, addressing various physical health issues. To some extent the author conceded he wrote beyond his expertise. 28. The offender did not give evidence on sentence but relied upon material contained in his letter of apology and the representations of his background to Dr Roberts. 29. His letter of apology is detailed and it contains more than merely an apology. It includes a stated 'sincere apology' to the victim, to society and to the court and an acceptance of responsibility. He wrote of his desire to recompense the victim and to address his greed. He wrote of his recidivism and his desire to obtain a moral compass. He wrote in considerable detail about his health issues and the conditions in custody. 30. He also relied on his extensive medical history entailing many health problems of varying severity. He complains, supported by medical reports, that he is not receiving adequate care in custody. He has received ongoing treatment for a number of chronic issues. Although the level of care required is significant to address a myriad of health issues, ultimately it presents as less than optimal. 31. [Redacted]. He recounted incidents of retaliation including threats and violence. This is extra-curial and will be taken into account as will the more restrictive conditions whilst on protection involving more time restricted to his cell. 32. Although a table 1 offence, the offence could not appropriately have been dealt with by way of summary jurisdiction. 33. The offender's prospects of rehabilitation and of not reoffending are poor. He has offended for close to thirty years. Any statement that he is desirous of change must be viewed with some cynicism. I note the assessment in the sentencing assessment report that he is in the medium-high risk of reoffending. Personal deterrence continues to play an important role. 34. General deterrence and retribution are of importance. 35. His mental health issues do not lessen the importance of personal or general deterrence. I do not consider they make his conditions in custody more onerous. 36. The Crown advanced a full-time sentence was required. The offender sought an ICO. 37. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate. Considering the proposed sentence the imposition of an ICO does not arise. 38. I am required to consider an appropriate sentence overall given the offender is serving a sentence for similar temporally connected although unrelated offending. 39. I make a finding of special circumstances relying on the obvious need for extended supervision and the health issues experienced by the offender. 40. The offender is convicted. I propose to back date the sentence by 2 months to reflect the time solely in custody and a further 2 months in applying totality with the current sentence. This will be back-dated from 21 September 2023, the current non-parole period. The sentence, reduced by 10% to acknowledge the plea, and taking into account the offence on the form 1 is 2 years and 9 months imprisonment with a non-parole period of 1 year and 8 months to date from 21 May 2023. The non-parole period expires on 20 January 2025 and the term expires on 20 February 2026. 41. This variation to the statutory ratio to 60% gives effect to my finding of special circumstances. I appreciate by accumulating this sentence on the existent sentence the overall sentence is one of 3 years and 2 months with an overall non-parole period of 2 years and 1 month. This is an overall ratio of 65%. 42. No lesser sentence would address the offending. ********** Amendments 28 February 2024 - On the application of the offender, and with the consent of the CDPP, part of [31] is redacted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2024