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27 – 31 October 2011, 2–4, 7–11, 14 November 2011, 16 & 20 CRIMINAL LAW – Sentence – Obtain financial advantage by deception (s 82 Crimes Act1958 (Vic)) – Negligently dealing with proceeds of crime (s 194(4) Crimes Act 1958 (Vic)).
_________________________________________________________________________________ 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 Circumstances of the offences
The three charges of obtaining financial advantage by deception, counts 1, 2 and 3, 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 Counts 1 and 2 on indictment C 1007368 (the trial indictment).
Count 1 on indictment C 1007368.2 (the plea indictment).
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 Mac Spot to ANDMA Holdings Pty Ltd, the holding company which you jointly owned with your brother. The lender in that case was Circuit Finance Pty Ltd.
In each case the invoice was a sham as there was no sale or lease, actual or intended, of the computer equipment to any of the companies.
The invoices were submitted to finance companies in support of applications for equipment finance loans. In each case, the invoices stated the bank account details into which the loan proceeds were to be paid if finance was granted. In each case, the account was a Mac Spot bank account of which you were a signatory and for which you were authorised to conduct internet banking. Three separate loans were advanced – each being the subject of a separate count – in the sums of $85,318, Although the negotiation of the loans, and submission of the applications, were undertaken by your brother and another person, your role was to create or cause the creation of those false invoices. You did so knowing that the invoices were to be used to deceive the finance companies into granting loans to which the borrowing companies were not lawfully entitled.
By this means, a total of $359,318 was paid into Mac Spot’s bank accounts. Those monies were disbursed over time for a mixture of purposes associated with your brother’s business enterprises, his personal interests and your personal interests. It would appear that the sum paid for your direct personal interests was relatively small – less than $2000 – although more substantial amounts were paid to or for the benefit of companies in which, according to the share register, you ultimately held a The charge of negligently dealing with proceeds of crime, the subject of count 4, arose in somewhat different circumstances. In November 2008, your brother ‘s wife, Meganita Marannu, received $625,954 as proceeds of a home loan from RAMS Financial Group Pty Ltd, to pay out the mortgage over your parents’ residential property in Templestowe which was then in default. That loan was fraudulently obtained by your brother, Andre, and Ms Marannu. After applying most of the loan to paying out the mortgage, a sum of $74,737 was left, of which $35,515 was paid to The circumstances of the fraud on the part of your brother and sister in law were matters of which you ought reasonably to have been aware. Thus, your dealing with the $35,515 proceeds of that crime was, as you have conceded by your guilty plea, negligent as to whether they were proceeds of crime.
Maximum penalties
The maximum penalty for obtaining financial advantage by deception is 10 years imprisonment.4 The maximum penalty for negligently dealing with proceeds of Fines6 and community based orders7, while available for such offences, are not considered appropriate in the current matter.
Because each offence of obtaining financial advantage by deception involved a sum in excess of $50,000, they are each a ‘continuing criminal enterprise offence’ under Part 2B of the Sentencing Act 1991 (Vic). You have not previously been found guilty of such offences. Having been found guilty by the jury on 14 November 2011 of two offences of obtaining financial advantage by deception, your plea of guilty to a third such offence on 23 November 2011 (count 3) brought you within the definition of a ‘continuing criminal enterprise offender’8. The maximum penalty for the third offence is twice the maximum for the offence itself: thus, taking it to a maximum of Section 81(1) Crimes Act 1958.
Section 194(4) Crimes Act 1958.
Section 103(3)(a) Sentencing Act 1991.
Section 103(3)(b) Sentencing Act 1991. Section 6H(1)(a) Sentencing Act 1991.
20 years imprisonment9 for the particular charge to which you pleaded guilty.
Nature and gravity of the offences
Of the three counts of obtaining financial advantage by deception, two were committed in quick succession in late July and early August 2007, and the third was committed some nine months later in April 2008. The amounts involved which I have already listed are very significant sums of money.
Those three offences involved, essentially, the same modus operandi. They each involved the creation of false invoices prepared on genuine Mac Spot invoice stationery and containing a carefully compiled list of goods designed to appear convincing. They also involved the completion of finance application documents for the relevant lender and a personal attendance upon the financier to negotiate the In short, the crimes involved planned and coordinated implementation and were The fourth count, that of negligently dealing with the proceeds of crime, also involved several discrete receipts and dealings. The total sum of $35,515 was dealt with by you in a number of transactions over a ten day period: on 17 November 2008, $3,000 was received, $2,000 of which was paid to Circuit Finance in part settlement of the debt which arose because of count 3; on the same date you provided a bank cheque to Leonard Legal from the proceeds, again in part settlement of the Circuit Finance debt; on the same date $9,000 was received to your credit card account; on the next day a further $300 was received to your bank account; and, on 28 November 2008, $10,000 was paid from the proceeds to meet payments which you had fallen behind in paying for your car.
All of these amounts were dealt with by you negligently as to whether they were Moral culpability/degree of responsibility
Your role in relation to obtaining finance by deception from Westpac Bank (counts 1 and 2) was to create the false invoice which was used for the purpose. I proceed on the basis that your role in respect of count 3, involving Circuit Finance, was of the It follows that you did not complete the finance application nor attend upon the finance company in relation to any of those charges. In one sense your role was more removed and less brazen than those who did make the applications and attended in person. Nevertheless, these crimes could not have been committed without the false invoices having been generated. The invoices needed to be convincing and thus the generation involved some effort and attention. They were, in substance, the centrepiece of the deception and you created them dishonestly knowing the purpose for which they were to be employed.
I accept that the deceptions were committed primarily for the benefit of the businesses of your brother, Andre. I also accept that your brother Andre and Tony Nguyen had the essential day to day control of the businesses for whom the monies were borrowed and that you had little to do with that control. I also accept that you only received a relatively modest direct financial benefit from the three counts of obtaining financial advantage by deception.
Nevertheless, you did receive some direct financial benefit. Additionally you stood to gain if your brother’s businesses, which were the prime beneficiaries of the crimes the subject of the first three counts, prospered and began to make money. You would gain because you held a half shareholding in ANDMA Holdings Pty Ltd (which in turn owned a number of the businesses). You would also gain from continued employment in the businesses and, although you had not been taking income for your work in the businesses, you had the prospect of being reimbursed once the companies were in better financial health.
It is clear that you are an intelligent person and that you clearly knew right from wrong. It is not suggested that you were overborne by any person in committing these crimes. There is some evidence of you having mental health issues in your early 20s, to which I will return shortly, but through your counsel you have expressly disavowed relying on those health issues as a possible explanation for your participation in the offences. Nor do I see any grounds for thinking that they Even accepting that you might have engaged in the offences the subject of counts 1 and 2 in July/August 2007 without giving enough thought to the character of your behaviour, you had plenty of time to consider your participation in the offence the subject of count 3 in April 2008 – yet you went ahead. By then the police had already executed a warrant in November 2007 on ANDMA Legal at McKillop Street which, I would have thought, might have signalled a clear warning to you.
You may well have been influenced in your decision to participate in the offences by a desire to support your brother and his businesses which were pivotal to the sustenance of the wider family’s finances. Your counsel summarised your essential motivation in these terms: “It was family stuff, what could I do?” But the success of the dishonest schemes required someone willing and compliant to create the invoices – someone who could be trusted to keep the scheme concealed. You were that person.
In my view your degree of responsibility for these crimes is only marginally lower than those who were in the front line making the finance applications.
The charge the subject of count 4 is of lesser gravity than the others, not involving any element of dishonesty. Nevertheless it involved a lack of care as to the source of monies which you received with knowledge of facts which ought to have put you on notice that those monies might be proceeds of crime.
In that state of mind you were prepared to accept significant sums of money for your own benefit. $15,215 of those funds were used by you to settle a debt due to Circuit Finance, thus satisfying a debt due for one crime by the proceeds of another. To my mind this demonstrates that, by November 2008, you were driven by the need to patch up your financial holes by whatever means, fair or foul.
Impact on victims: loss or damage resulting
Of the sum of $65,000 received from Circuit Finance, some monies have been repaid (proceeds from the deception perpetrated on RAMS) leaving a balance owing to Circuit Finance of $26,248. It is presently unclear how much, if any, of the $294,318 received from the two Westpac loans has been recovered by the bank after the sale of certain properties mortgaged to secure those and other loans. Westpac has claimed compensation for the full amount suggesting that it has not recovered the money.
You have no assets yourself from which you could satisfy these sums and your RAMS has elected not to set aside the mortgage over your parents’ home but to keep it on foot. It is still being paid the monthly instalments due and it maintains a mortgage of over the security property. I understand you are assisting in the business of your sister in law, on an unpaid basis, which generates the money to pay Whilst the overall picture is a little opaque, it is clear that the ultimate losses to lenders as a result of your criminal activity runs to the tens of thousands of dollars if not hundreds of thousands of dollars.
Personal circumstances
You were born in Australia on 20 September 1979. Both your parents were born in Italy. You have one older brother, Andre, your co-accused, who is two years older Your father worked as a sales representative for a textile company and your mother was a stay at home carer. You grew up in a relatively comfortable home in Lower Templestowe and were educated at a Roman Catholic primary school and at Marcellin College in Bulleen. You completed tertiary studies at Monash University, graduating in Mechanical Engineering in 2004. You originally embarked upon a double degree and later converted that to a single degree. You studied at Monash At school you commenced involvement with the Army Reserves, following in the footsteps of your brother Andre, as well as participating as a cadet with St Johns Ambulance. You gained part time employment when 15 years of age, as a school student, with Coles Supermarket in Bulleen where you continued to work throughout your schooling and university years.
You remained living at home until you were 28 years of age after which you lived in a series of apartments some of which you shared with your brother Andre. You currently live in an apartment above the premises where the Mac Spot retail business You apparently have had two romantic relationships of some duration: the first lasting 9 years from the age of 19 and the second of a 12 month duration in your late 20s. You applied to join the Air Force and, although you were finally accepted, you have not been able to commence that employment due to the charges you have The general picture presented by this history is that of a solid family, educational At the age of 22 you were diagnosed with a mental illness, having suffered episodes of psychosis. Recently you told a psychologist (Dr Aaron Cunningham) that in 2002 you were cycling between manic and depressive episodes. You were prescribed Zyprexa, Olanzapine and later Aripiprazole. You saw a psychiatrist, Dr Zenia Prodromou on approximately 20 occasions from 2003 to January 2005.
Dr Prodromou reported that at the last consultation (27 January 2005) you were well with no hallucinations or paranoia. You did not continue treatment with the You have been managing yourself with Valium but otherwise using relaxation techniques of meditation and listening to music. It also seems you take Diazepam to control heart palpitations and anxiety.
Dr Cunningham, the psychologist, expressed the view in his report of 7 December 2011,10 that you have a current diagnosis of Schizoaffective Disorder Bipolar Type which he describes as a serious psychological illness that burdens your mental state through episodes of psychosis, mania and major depression. In Dr Cunningham’s opinion your disorder would require both psychiatric and psychological treatment.
He further expressed the view that if left untreated a term of imprisonment will weigh more heavily on you compared to an individual without the disorder and that there is a serious risk that imprisonment will have a significant adverse effect upon your mental health. This, he said, is because a person with such a disorder is more prone to self-harm during times of stress and more vulnerable to negative influence In substance your life is currently on hold until you have completed the sentence which you will receive as a result of your participation in these criminal offences. In the future you intend to move interstate and pick up a new life using your qualification as a mechanical engineer.
Sentencing considerations
You have no prior convictions. You contested counts 1 and 2 and, only after being found guilty of them, you pleaded guilty to counts 3 and 4. In those circumstances, whilst some discount should be given to reflect your plea on counts 3 and 4 in recognition of some saving of further expense to the community by the avoidance of another trial, given its late stage and the circumstances of it being given, the plea does not signify any significant degree of remorse or acceptance of responsibility for In order to have regard to current sentencing practices, amongst other things I have consulted the Sentencing Advisory Council publication on “Sentencing Trends in the Higher Courts of Victoria 2005-6 to 2009-10” for the offence of obtaining financial Sentencing Snapshot, No 107, March 2011, Sentencing Advisory Council of Victoria.
Sentencing purposes
Crimes such as those in counts 1, 2 and 3 are, by their nature, difficult to detect as demonstrated by this case. You endeavoured to conceal the offences by the creation of convincing yet false commercial documents. And, as the conduct of the lenders in this case also demonstrated, commercial parties operate on the basis that business documents of apparently genuine provenance can be trusted and therefore form a basis of transactions involving hundreds of thousands of dollars without elaborate The cost caused to commerce, and to the community generally, by those like you who undermine that trust so that additional checks and balances must be put in place, or losses simply suffered, is significant.
consideration of general deterrence should loom large.12 I also consider that the sentence I impose should manifest the court’s denunciation of the type of conduct in which you have engaged.
You are presently 32 years of age, without prior convictions and, having had the benefit of good education, ultimately with quite good job prospects. A number of people who have worked with you in the past, including a former delicatessen manager at the Coles Supermarket who worked with you for nine years, have remarked in testimonials that you are a quiet and gentle person by nature, hard working, and willing to help others. It is said that your behaviour in the commission of these offences is out of character.
Although now in your 30’s, I nevertheless consider that your background and character suggests you have reasonable prospects of rehabilitation. Those prospects Additionally, as I have already mentioned there is some evidence which indicates that, because of your mental health, imprisonment will, in your case, be both R v Kostikidis (Unreported, Supreme Court of Victoria, Court of Appeal, 12 September 1996).
an additional burden upon you compared with other prisoners, and give rise to a significant risk that it may exacerbate your mental illness.
In my view, while I take into account the prospect that psychiatric or psychological treatment and support is likely to be available to you to ameliorate the effects of imprisonment upon you, nevertheless those effects justify some moderation of the Given the amounts involved, the number of offences committed and the fact that your offending was committed over a period exceeding 15 months, I am of the view that considerations of general and specific deterrence, and denunciation, warrant a sentence of imprisonment. Indeed it was not contended on your behalf otherwise.
The sentence will also reflect the fact that by the commission of the offence the subject of count 3 you became a continuing criminal enterprise offender.
It was argued by your counsel that the sentence ultimately fixed by the Court of Appeal for your sister in law, Meganita Marannu, in relation to the criminal deception forming the background to count 4, should constitute a broad guide to the disposition which you should receive. For the particular reasons explained by the Court of Appeal Ms Marannu received a total effective sentence of 10 months wholly suspended.14 I do not consider the sentence given to Ms Marannu provides a particularly helpful guide in sentencing you. Her circumstances were different in too many respects; on the one hand, the offence was quite different (more serious) but, on the other, she had very significant mitigating circumstances which do not I have also been urged by your counsel to suspend at least some part of the sentence of imprisonment I am about to impose. In my view any purpose or justification lying behind the partial suspension of any portion of the term of imprisonment will be adequately addressed by the duration of the total effective sentence and non- R v Verdins (2007) 16 VR 269, 276 [32], 5th and 6th principles.
Marannu v The Queen [2011] VSCA 105.
Although the amount of money involved in count 2 ($209,000) is of a somewhat different order of magnitude to the amounts involved in counts 1 and 3, given the relationship in time and circumstance between the events of counts 1 and 2, the separate circumstance involving count 3, and the nature of your role in each of the three counts of obtaining financial advantage by deception, I consider that each Marc Di Cioccio [please stand], on each of the counts of the indictments of which you stand convicted I sentence you as follows: of indictment C1007368 (obtaining financial advantage by deception, $85,318) to 15 months’ imprisonment.
On count 2 of indictment C1007368 (obtaining financial advantage by deception, $209,000) to 15 months’ imprisonment.
On count 1 of indictment C1007368.2 (obtaining financial advantage by deception, $65,000) to 15 months’ imprisonment.
On count 2 of indictment C1007368.2 (negligently dealing with proceeds of crime, $35,515.49) to 7 months’ imprisonment.
I order that the following periods of imprisonment be served cumulatively upon each other and on the sentence imposed in count 1 of indictment C1007368: on count 2 of indictment C1007368, six months; on count 1 of indictment C1007368.2, six months and on count 2 of indictment C1007368.2, three months. That makes a total effective sentence of 30 months. I fix a non-parole period of 14 months.
In accordance with s 6AAA of the Sentencing Act 1991 (Vic) I state that but for your plea of guilty in respect of the two counts of indictment C1007368.2 I would have imposed a total effective sentence for those two counts of 24 months with a non- parole period of 15 months and I will cause those details to be entered on the court In accordance with s 6J(1) of the Act I require it to be entered in the records of the Court that you have been sentenced for a continuing criminal enterprise offence in respect of the offence the subject of count 1 of indictment C1007368.2.
In accordance with s 18(4) of the Act I declare that you have served 44 days by way of pre-sentence detention, up to and including today, which are to be reckoned as already served under the sentence I have just imposed. I require that declaration to be noted in the records of the court.


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