New South Wales Court of Criminal Appeal CITATION : R v Aliperti [2000] NSWCCA 315 FILE NUMBER(S) : CCA 60820/99 HEARING DATE(S) : 09/08/2000 JUDGMENT DATE : 9 August 2000 PARTIES : Regina v Joseph Aliperti JUDGMENT OF : James J at 1; Dowd J at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/1253 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER : COUNSEL : M C Ramage QC - Applicant A M Blackmore - Crown SOLICITORS : Penhall and Co - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law - sentence - delay before sentencing DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60820/99 JAMES J DOWD J Wednesday 9 August 2000 REGINA v JOSEPH ALIPERTI JUDGMENT 1 JAMES J: Joseph Aliperti has applied for leave to appeal against the sentence imposed on him in the District Court on 3 December 1999 by his Honour Judge Shadbolt, after the applicant had been found guilty by a jury of one charge of dishonestly obtaining a valuable thing by deception, an offence under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years. 2 Judge Shadbolt took into account in sentencing the applicant seven other offences, consisting of six offences under s 178BA and one offence of fraudulently omitting to account, an offence under s 178A of the Crimes Act. 3 Judge Shadbolt sentenced the applicant to a term of imprisonment for five years, consisting of a minimum term of three years nine months and an additional term of one year three months. 4 The objective facts of the offence can be briefly summarised as follows. The applicant was a solicitor. The victim of the offence, Mr Ferraro, was a client of the applicant's. Mr Ferraro told the applicant he had money on deposit with a bank but that he was dissatisfied with the rate of interest he was receiving. The applicant told Mr Ferraro he had another client, Mr Cassaneti, who from time to time needed to borrow money. Subsequently, Mr Ferraro asked the applicant to invest for him the moneys which had been on deposit with the bank. 5 The applicant produced to Mr Ferraro a loan agreement expressed to be between Mr Ferraro and his wife of the one part and Mr Cassaneti of the other part. The loan agreement bore a signature purporting to be the signature of Mr Cassaneti. However, this signature had been forged by the applicant and Mr Cassaneti had no knowledge of the alleged transaction. 6 The moneys which Mr Ferraro had for investment, amounting to $135,000, were deposited in the applicant's office account and then disbursed in payment of a number of the applicant's creditors. 7 It would appear from the form under s 21 of the Criminal Procedure Act that most of the other six offences under s 178BA of the Crimes Act were committed in a similar way, by the applicant dishonestly obtaining for himself a bank cheque or a personal cheque from a client by a deceptive representation that another client of the applicant's practice was seeking to borrow money. The amounts dishonestly obtained by the applicant in committing these other offences ranged from slightly more than $15,000 to $75,000. 8 All of the offences committed by the applicant were committed over a period of approximately four months, between February 1992 and June 1992. 9 The sentencing judge regarded the applicant's offences as serious. In his remarks on sentence his Honour said that he regarded the applicant as having stolen the money from his clients. His Honour said that "they" (that is the offences) "were utterly disgraceful acts of dishonesty". Later in his remarks on sentence his Honour said: "These deceptions happened over a considerable period of time and involved not institutions but individuals, none of whom could afford the loss or absorb it. They also involved substantial sums of money." 10 His Honour went on to say: "I see these offences as being in the top band of the most serious of their kind." 11 In his remarks on sentence his Honour mentioned some of the subjective circumstances of the applicant. At the time of sentencing the applicant was fifty years old and married, with two children. His Honour found that up until the time the applicant committed the offences he had been a person of good character. In consequence of the commission of the offences, the applicant had been struck off as a solicitor and had been made bankrupt. His Honour noted that the applicant continued to maintain in the proceedings on sentence that he was not himself to blame and that Mr Cassaneti had owed him money. 12 His Honour concluded that because of the objective gravity of the offence, including the breach of trust as a solicitor, and notwithstanding the subjective matters which were urged on behalf of the applicant, a sentence equal to the maximum sentence for an offence under s 178BA should be imposed and that the additional term of that sentence should not exceed one-third of the minimum term. 13 In this application it was submitted on behalf of the applicant that the sentencing judge had made some specific errors in sentencing the applicant and that in any event the sentence imposed by his Honour was manifestly excessive. 14 It was submitted that the sentencing judge had accepted, and had obviously been influenced by, an assertion made by the Crown Prosecutor in the proceedings on sentence about the total amount dishonestly obtained by the applicant. It was submitted that this assertion was not supported by the evidence and had been disputed by counsel for the applicant in the proceedings on sentence. In the proceedings on sentence the following exchange occurred. "COUNSEL FOR THE CROWN: In relation to the matter of Aliperti, your Honour might recall at the conclusion of the trial in this matter I advised your Honour that the Crown was not in a position to put a figure on what the overall defalcations were in the matter. We have been in touch with the Law Society and they have advised they paid out from the Fidelity Fund a total amount of $1.4 million. MR CUSACK (Counsel for the prisoner): I might say, your Honour, I accept what my friend is saying but that particular figure is somewhat disputed by my client because some of these people have been paid back before that. HIS HONOUR: I might say I prefer the Law Society's account of that to your client." 15 It would appear that the figure of $1.4 million mentioned by the Crown Prosecutor, even if it was a correct figure, included amounts which the Crown alleged had been dishonestly obtained by the applicant, over and above the amounts involved in the offence of which the applicant had been found guilty and the offences which were to be taken into account in accordance with the Criminal Procedure Act. 16 It is true that in proceedings on sentence a circumstance of aggravation, if not admitted, must be proved by the Crown beyond reasonable doubt by admissible evidence. Furthermore, there is the point that in sentencing for the single offence and taking into account the seven additional offences, his Honour should not have had regard to amounts included in alleged offences for which he was not sentencing the applicant. 17 There was no dispute that the total amount involved in the offence of which the applicant had been found guilty and the offences to be taken into account was a substantial figure, approximately $400,000. The only finding actually made by the sentencing judge in his remarks on sentence about the amounts of money which the applicant had obtained by his deceptive conduct was a finding that "the deceptions involved substantial sums of money," and such a finding was well open to his Honour. 18 It was submitted that his Honour had erred in saying the deceptions had occurred over a considerable period of time, when they had all occurred within a period of about four months. It is true that the deceptive conduct had not, as sometimes happens, extended over a period of years. Nevertheless, the word "considerable" is not a word of precise import and the fact that the deceptive conduct had continued over a period of several months warranted his Honour's finding that the deceptions had occurred over a considerable period of time. 19 It was also submitted that his Honour had erred in sentencing the applicant on the basis, apparently, that there had not been any repayment of any money. However, there was no reference at all in his Honour's remarks on sentence as to whether there had been any repayment of any of the money dishonestly obtained and I would not uphold this submission. 20 The submission was also put that his Honour had failed to consider whether something less than a sentence of full-time imprisonment was appropriate. However, in my opinion, it is quite clear that a sentence of full-time imprisonment was required, as was indeed expressly conceded by the applicant's counsel in the proceedings on sentence. It would have been quite otiose for his Honour to say in his remarks on sentence, that no penalty other than a sentence of full-time imprisonment should be imposed. 21 A submission which was particularly pressed by counsel for the applicant at the hearing of this application was a submission that his Honour had failed to have regard to the offences having become stale offences by the time of the sentencing. As I have already noted, all the offences were committed within a period of four months between February and June 1992. The applicant was first arrested in respect of a defalcation by him as a solicitor in September 1992. The applicant did not stand trial until towards the end of 1999 and was sentenced by Judge Shadbolt on 3 December 1999. 22 This Court was presented with chronologies of the events which occurred between the time of the applicant's first arrest in September 1992 and the date of the sentencing. It is clear that on some occasions trial dates which had been fixed were vacated, on the application of the applicant. On those occasions the grounds of the applicant's application were usually related to applications for legal aid or appeals against refusal of legal aid or applications to the Bar Association that the applicant be granted pro bono legal representation. 23 A number of the delays were, however, not delays which could be attributed to the applicant. Some delay was attributable to the problems the authorities confronted in arranging for a trial, which would necessarily be a lengthy trial, of all the offences which it was alleged the applicant had committed. There were also changes of mind on the part of the Crown from time to time, on whether all charges should be preferred against the applicant in a single trial or whether the applicant should be subjected to a series of back-to-back trials. 24 In support of his submission that the delay was a relevant factor, counsel for the applicant referred to the well-known passage in the judgment of Street CJ in R v Todd (1982) 2 NSWLR 517 at 519 and also referred to a decision of this Court in R v Fahda, (unreported, 31 August 1999). It was submitted on behalf of the applicant that the applicant was entitled to some leniency, on the basis he had had the proceedings hanging over his head for approximately seven years. 25 It seems to me that there is force in the submission by counsel for the applicant that the delay between the offences first coming to the notice of the authorities and the sentencing of the applicant was a relevant matter, to which the sentencing judge should have had regard in sentencing the applicant. 26 The sentencing judge had, of course, presided at the trial of the applicant and, as frequently and understandably happens in such circumstances, his Honour's remarks on sentence were fairly brief. However, there being no reference to the factor of delay in his Honour's remarks on sentence, I have been persuaded that his Honour did not have regard to this factor. I am, accordingly, of the opinion that his Honour's sentencing discretion did miscarry. I am accordingly of the opinion that leave to appeal should be granted and that it is necessary for this Court to exercise for itself the sentencing discretion originally exercised by the sentencing judge. The re-sentencing of the applicant should be in accordance with the Crimes (Sentencing Procedure) Act 1999. 27 I have already referred to the objective facts of the offence and the objective facts of the several offences to be taken into account and I have referred to a number of the subjective features of the applicant. 28 Counsel for the applicant referred, in particular, to the applicant's age and to the likelihood that imprisonment would be particularly onerous for him. On the other hand, the offences which the applicant committed are objectively serious and there is much Court of Criminal Appeal authority that severe sentences are warranted, when a court is sentencing a solicitor for offences of dishonesty committed by him in breach of the trust reposed in him by his clients. 29 In my opinion, a proper sentence to impose would be a sentence of imprisonment for four years. I do not consider there is any reason to find special circumstances. I would accordingly set a non-parole period of three years. The sentence would commence on 5 November 1999. The earliest date on which the applicant would be eligible for release on parole would be 5 November 2002. 30 DOWD J: I agree with the proposed orders of the Presiding Judge and with the reasons expressed there for. 31 JAMES J: The orders of the Court will be as proposed by me. ********** 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.