R v Andre di Cioccio [2012] VSC 28

2 You also pleaded guilty to five counts of obtaining financial advantage by deception (counts 4, 5, 6 and 14 on the first plea indictment, and count 1 on indictment A11148849.4 - "the second plea indictment"), and were found guilty by a jury of two further such counts (counts 1 and 2 on indictment C1007368 - "the trial indictment"). Finally, you pleaded guilty to one count of attempting to obtain financial advantage by deception (count 15 on the first plea indictment).**

**3 I will describe the circumstances of the offences in chronological order.

4 Since May 2001 you have been an Australian legal practitioner as defined in s 1.2.3(a) of the Legal Profession Act 2004 (Vic). You conducted a legal practice under the name Andma Legal which, at the relevant times, operated from premises at 19 McKillop Street, Melbourne.**

**5 For a number of years prior to 2006 Ian Spouse had been one of your clients. In April 2006 he engaged your firm to provide advice in relation to the potential purchase of a commercial warehouse property in Oakleigh South. You advised him to purchase the warehouse in the name of a corporate trustee, and further advised him to forward the deposit monies for the purchase to the firm to be held on trust pending the purchase. On 27 April 2006 one Uldarico Tubig, a business associate of Spouse, transferred $100,503.15 to the firm's trust account held with the Commonwealth Bank of Australia (CBA) as part of the intended purchase monies for the warehouse. That money was trust money within the meaning of the Legal Profession Act.

6 The next day, without reasonable excuse, you transferred that money from the CBA trust account to the firm's business account thereby creating a deficiency in the trust account of $100,503.15. Over the next seven days you conducted numerous transactions using the money transferred from the trust account for, amongst other things, payments against your AMEX credit card and for wages. Those transactions almost entirely accounted for the transferred trust money.

7 These events were the subject of charge 1 of the first plea indictment: causing a deficiency in a legal trust account.

8 Further payments were made by Tubig to the CBA trust account to be held on trust for the purchase of the warehouse: $101,866.51 on 25 May 2006, and $201,302.57 on 16 June 2006.

9 In each case, without reasonable excuse, the monies were again transferred to the firm's business account from which you made payments for personal and business expenses, thereby causing a trust account deficiency and dissipating the funds. These further two events were the subject of counts 2 and 3 of the first plea indictment: causing a deficiency in a legal trust account.

10 Not long thereafter, in late June and early July 2006, without the knowledge or consent of Spouse, you registered a company, Tubig Holdings Pty Ltd. Spouse was recorded as sole director and shareholder. You entered a contract of sale for the purchase of the warehouse property forging Spouse's signature on the contract note.

11 Because you did not have sufficient funds in trust to complete the purchase of the warehouse property, you applied for a mortgage from ING Bank (Australia) Limited in the name of Tubig Holdings forging Spouse's signature on a range of documents necessary to make the application. Those documents included a personal guarantee, a warranty and consent by the borrower company and direct debit authorities.

12 ING approved a mortgage loan of $375,000 to Tubig Holdings to enable the purchase of the warehouse property to proceed. It settled on 13 September 2006. The loan was thus obtained by you by deception in that you falsely represented to ING that Spouse was the guarantor of the loan and had authorised the loan on behalf of Tubig Holdings. This conduct is the subject of count 4 of the plea indictment: obtaining a financial advantage by deception.**

**13 About eleven months later you committed the next offences. In addition to conducting the legal practice you were also the director of an Apple computer retailer called Mac Spot Pty Ltd which conducted its business from 327 Glenhuntly Road, Elsternwick. It also had a small service operation at your city McKillop Street premises.

14 You were also a director of Natelle Pty Ltd in which you held an interest via a holding company, Andma Holdings Pty Ltd. At that time you had a business associate, Tony Nguyen. You used the identity of his one time girlfriend Dee Tran (without her knowledge or consent) to register her as director and shareholder of yet another company, DTN Group Pty Ltd. These last two companies were vehicles for property development and investment activities which you and Nguyen undertook using funds borrowed from various financial institutions.

15 In August 2007 you caused DTN Group Pty Ltd to enter a commercial loan agreement with Westpac Banking Corporation Limited purportedly to fund the purchase of various items of computer equipment from Mac Spot. A false Mac Spot invoice dated 9 July 2007 was created to record the purported sale of various items of computer equipment at a total cost of $85,318 to DTN. The invoice was a sham as no such sale occurred or was intended. You caused the Mac Spot invoice to be submitted to Westpac in support of the loan application and, on 6 August 2007, Westpac credited the amount of $85,318 to Mac Spot's CBA bank account. This conduct was the subject of charge 1 of the trial indictment: obtaining a financial advantage by deception.

16 By the same means, in early August 2007, in your capacity as director of Natelle, you applied for and entered a commercial hire purchase agreement with Westpac purportedly to fund the purchase by Natelle of various items of computer equipment from Mac Spot for the sum of $209,000. Once again the application was supported by a false Mac Spot invoice purporting to record the sale of computer equipment by Mac Spot to Natelle for that price. You attended a bank officer in person to sign the loan application. The invoice was a sham as no such sale occurred or was intended. On 7 August 2007 Westpac credited the amount of $209,000 to Mac Spot's CBA bank account. This conduct was the subject of count 2 of the trial indictment: obtaining a financial advantage by deception.

17 Within two weeks of the proceeds of the two loans being received in the Mac Spot bank account you caused those proceeds to be used to pay debts and expenses of your own, your businesses, and, in a small sum, your brother Marc.

18 At around about the same time, in mid-2007, you had dealings with a business banking manager at the National Australia Bank (NAB). You applied for an asset finance facility to fund the purchase by Andma Legal of various items of computer equipment from a business known as TECS Computer Source, a supplier of computer components to Mac Spot. In support of that application you supplied four false invoices purporting to be for the sale of various items of computer equipment, each for the amount of $70,000. There was no such sale.

19 On 14 August 2007 you signed a hire purchase agreement annexing each of the four false invoices and on the same date, NAB provided you with a cheque for $280,000 payable to TECS Computer Source which you deposited into the firm's trust account held with the Westpac bank. On the same day the monies were transferred from the trust account to another bank account used by the firm in connection with a debt factoring business. This conduct was the subject of count 5 on the first plea indictment: obtaining a financial advantage by deception.**

**20 Meanwhile, in about July 2007 you had been engaged by Frank Dymos, in your capacity as a finance broker, to arrange a commercial hire purchase agreement with Macquarie Leasing Pty Ltd for the purchase of an item of equipment for Dymos' car repair business. For that purpose you had obtained from Dymos copies of his driver's licence and passport and various accounting documents.

21 Having successfully assisted Dymos obtain finance in July 2007, in November 2007, without his knowledge or consent, you submitted a further application to Macquarie purportedly on his behalf, to obtain finance to purchase an engine dynamometer. On 1 November 2007, in support of the application, you provided Macquarie with a false invoice purporting to record the sale (which was a sham) together with the identity documents of Frank Dymos which you had retained from the earlier transaction. On 6 November 2007 you forged Dymos' signature on the commercial hire purchase agreement which Macquarie agreed to grant, and on 8 November 2007 Macquarie transferred $138,900 to a bank account of Andma Financial Pty Ltd, another company in the group of companies you controlled. These events were the subject of the single count on the second plea indictment: obtaining a financial advantage by deception.**

22 The next offence occurred in April 2008. On 3 April 2008 Andma Holdings, of which you were a director, entered a lease agreement with Circuit Finance Australia Pty Ltd purportedly to fund the lease of various items of computer equipment from Mac Spot Pty Ltd. In a similar manner as before, you facilitated the submission to Circuit Finance of a false Mac Spot invoice purporting to record the sale of computer equipment at a cost of $65,000 from Mac Spot to Andma Holdings. No such sale occurred or was intended. Circuit Finance credited the amount of $65,000 to the Mac Spot NAB account. These events were the subject of count 6 of the first plea indictment: obtaining a financial advantage by deception.

**23 In the next month, the month of May 2008, you committed a number of further offences.

24 In late 2007 Andma Legal had been engaged to act for Vicki Daley in relation to the sale of a residential property at 9 Morley Crescent, Box Hill North. On 7 February 2008 the balance of the deposit monies from the sale of the property, $31,378.70, was paid into your firm's NAB trust account. Being a half owner of the Box Hill property, Ms Daley's share of the said money was $15,689.35. You failed to pay or deliver that money to Ms Daley, without reasonable excuse. She has since had to recover her money from the Legal Practitioners Fidelity Fund. These events were the subject of count 7 of the first plea indictment: failing to pay or deliver trust monies.

25 The settlement of the sale of the property took place on 7 February 2008. Ms Daley's share of the purchase price, less adjustments, disbursements and your legal fees, was $213,231.22. Your firm received a cheque payable to Ms Daley in that amount which was paid into the firm's trust account.

26 After repeated requests by a new solicitor for Ms Daley for payment of her money, it was not until 4 April 2008 that you sent a trust cheque to her for only $98,231.22. Because there was insufficient funds in your trust account to pay the rest, the remainder of $115,000 was sent by a cheque drawn on your office account. You did not have a reasonable excuse for failing to pay or deliver the trust money. These events were the subject of charge 8 of the first plea indictment: failure to pay or deliver trust monies.**

**27 The next five offences arose in the following circumstances. On 20 April 2007 Natelle Pty Ltd purchased a commercial property at 130-136 Victoria Street, Seddon, intending to develop it as residential units. In addition to your interest in Natelle as described earlier, Andma Legal also acted as solicitor for it as vendor of the proposed units. In that capacity Andma Legal received deposit monies from five people who were intending to purchase units "off the plan". They were paid into the firm's trust account with Westpac. The individual deposit sums received were $38,950, $40,590, $5,000, $33,950 and $38,250 - a total of $156,740.

28 The development did not proceed but you did not retain the deposit monies in the Westpac trust account. Instead you used the monies for your own purposes. As a result, by 29 May 2008, there were deficiencies in the trust account equal to each of those sums.

29 The Legal Practitioners Fidelity Fund has paid each of the purchasers the sum of their deposit monies. Each of the trust account deficiencies in each of the five cases are the subject of counts 9, 10, 11, 12 and 13 respectively on the first plea indictment.**

**30 The last two remaining counts arose in November 2008.

31 Your parents were in default on mortgage payments in respect of the family home at 55 Morang Avenue, Lower Templestowe. It seems likely that at least to some degree their debt was attributable to monies lent to you for your various businesses. On 3 July 2008 you and your wife, Meganita Marannu, sought refinance of the mortgage over your parents' home from RAMS Financial Group Pty Ltd in the sum of $680,000.

32 In support of that application you and Marannu submitted false documents purporting to show that she worked for Andma Financial as a full time account manager at a yearly salary of $125,000. She was not so employed. The false documents included two false payslips stating she had a weekly gross salary of $2,403.85, a false PAYG payment summary for the year ending 30 June 2008 and a letter from Andma Group falsely stating that she was employed as described.

33 RAMS accepted the finance application, and Westpac, as credit provider for RAMS, provided Marannu with a loan of $625,954. $551,580 of that sum was used to refinance the existing mortgage and the balance was used for other private and business purposes.

34 Those events were the subject of count 14 on the first plea indictment: obtaining a financial advantage by deception.

35 Finally, on 20 November 2008 you and your wife submitted a consumer credit application in your wife's name to Bendigo and Adelaide Bank Limited again using documents which falsely represented that your wife was employed as a full time account manager for Andma Financial at a yearly salary of $125,000. Three false payslips, a false PAYG payment summary and a letter from Andma Group were submitted with the application.

36 Bendigo Bank declined the application. These events were the subject of count 15 of the first plea indictment: attempt to obtain a financial advantage by deception.

37 In all there were 18 offences and the aggregate sum of money involved was $2,603,173.58.**

**38 The maximum penalty for causing a deficiency in a legal trust account or failing to pay or deliver trust money is 15 years' imprisonment.[1]

39 The maximum penalty for obtaining financial advantage by deception is 10 years' imprisonment[2], with the maximum penalty for attempting to obtain a financial advantage by deception being 5 years' imprisonment.[3] Fines[4] and community based orders[5], while available for such offences, are not considered appropriate in the current matter.

40 Each of the offences of obtaining financial advantage by deception involved a sum in excess of $50,000. Accordingly they are each a 'continuing criminal enterprise offence' under Part 2B of the Sentencing Act 1991 (Vic). Other than the pleas and findings of guilt I have just referred to, you have not previously been found guilty of such offences.

41 However, having pleaded on 3 October 2011 to four counts of obtaining financial advantage by deception in the first plea indictment you brought yourself within the definition of a 'continuing criminal enterprise offender' as defined in paragraph (c) of the definition of that term in s 6H(1) of the Act. Section 6I of the Act states that a continuing criminal enterprise offender is liable for a continuing criminal enterprise offence to a maximum term of imprisonment of twice that of the maximum term ordinarily prescribed - in this case, taking it to a maximum of 20 years' imprisonment.

42 There seems little doubt (and it is certainly not disputed by your counsel) that you are to be sentenced as a continuing criminal enterprise offender for each of the four counts of obtaining financial advantage by deception in the first plea indictment.[6]

43 The Crown has contended, and again your counsel has not disputed the proposition, that the four offences of obtaining financial advantage by deception to which you pleaded guilty under the first plea indictment constitute 'relevant offences' within the meaning of s 6H(1)(a) and (b) of the Act in respect of the count to which you pleaded guilty on the second plea indictment, and the two counts for which you were found guilty on the trial indictment. If that is the case, then you are liable to be sentenced for those last mentioned three counts also as a continuing criminal enterprise offender.

44 In my view the definition of 'relevant offence' is somewhat troublesome. Despite the language of the definition I think it requires that the qualifying offence (that is the 'relevant offence') must be one which was committed before the date on which the subject offence (ie. the one which is spoken of in paragraphs (a) and (b) of the definition) was committed.

45 After carefully analysing the sequence of the commission of all the relevant offences and having regard to the separate trials or hearings in which each of them was dealt with, I am satisfied that the Crown's submission is correct.

46 Accordingly you are to be sentenced on the footing that you are a continuing criminal enterprise offender, liable for a maximum term of imprisonment of 20 years', for each of the seven charges of obtaining a financial advantage by deception. But, since the offence of attempting to obtain a financial advantage by deception is not listed in Schedule 1A to the Sentencing Act, I fail to see how it can attract twice the usual maximum penalty as the Crown also has submitted.**

47 In R v Bernstein[7] Nettle JA said of the maximum sentence of 15 years for a deficiency in a trust account:

... The ... penalty reflects the very serious nature of fraudulent breach of a solicitor's trust account obligations. As Young, CJ explained in Director of Public Prosecutions v Ryan,[8] offences which demonstrate that a solicitor is not to be trusted bring the whole profession into disrepute and, therefore, a solicitor who is guilty of such offences must be punished severely. The sentences to be imposed in such cases must be such as not only to reflect the nature and gravity of the offending but also to make plain the court's abhorrence and denunciation of the nature of the offending and to provide general deterrence against the possibility of its repetition.[9]

**48 Your criminal offending occurred over an extended period of time. The first offence was committed on 28 April 2006. The last was on 20 November 2008. Your offending therefore spanned a period of more than two and a half years.

49 The offences which I have summarised involved very substantial amounts of money, both individually and in aggregate. Ten of the offences involved individual amounts each over $100,000 all but one ran into at least tens of thousands of dollars. As I have said the aggregate amount exceeded $2.6M. These sums place you in the category of a serious offender.

50 Many of the offences, particularly those of obtaining financial advantage by deception, involved a real degree of sophistication and were clearly well planned. I refer to those which involved the careful crafting of false invoices; the forging of loan applications on behalf of clients, in one case using his identity documents; and preparing false income and wage documents for your wife. Not only that, some of them involved brazen personal attendances by you upon offices of financial institutions to make the relevant loan application and to sign documentation.

51 The five charges relating to the trust account deficiencies for the Seddon Development deposits, although the subject of five separate counts, can, in my view, be regarded as all part of a single whole.

52 Outside of the charges which relate to trust account deficiencies, in some instances you misused your position of trust as a solicitor for a client to commit offences. I refer in particular to those involving the client Ian Spouse but also the special advantage you were able to obtain with Westpac, as a finance broker, by reason of your role as a solicitor.

53 Finally, there were instances when you obtained money by deception in order to 'cure' trust account deficiencies caused by you having used trust monies for personal purposes. You were using the proceeds of one crime to cover up another.**

**54 You were, in substance, the owner and effective controller of your legal and business enterprise. Other than the contribution made by Mr Nguyen, whose role is somewhat shadowy, I proceed on the basis that you were if not the chief instigator of the offences, at least an equal co-instigator of them. The treatment which you later received at the hands of Mr Nguyen may be considered as a damaging consequence to you of your own offending behaviour but there seems little evidence that your willingness to engage in the conduct was somehow explained by the influence of Mr Nguyen.

55 It appears that you were driven by a desire to obtain wealth, and the trappings of success, the easy way. In some respects that is hard to understand for a person like yourself brought up in an apparently sound family home, of hard working migrant parents, with a good education and the opportunities it brought for reward from the conventional, lawful route. I will mention more of your background later.

56 A psychologist who saw you recently on 6 December 2011, Pamela Matthews, expressed the view in her report:**

... Di Cioccio has not been able to wait for the slow successes and acknowledgments of a carefully built legal practice based on reputation but has reached for quick success, involving himself with criminal elements to do so, which has impacted on the financial and perhaps emotional situation of his victims and has in turn in [sic] exposed he [sic] and his family to serious criminal behaviour of the aggressive intimidating kind, which in turn has significantly impacted emotionally on Mr Di Cioccio, and his family.

57 Ms Matthews had something of an explanation for why you would reach for that quick success:

The central core to Mr Di Cioccio's offending appears to be his background of high achieving, someone who was perhaps quite driven, and to whom successes were repeatedly acknowledged, an individual whose self-esteem was perhaps very much embedded in the constancy of external acknowledgment as an emotional replacement for the perception of lack of acknowledgment or attention at home as a child.

**58 Whilst Ms Matthews' opinion may afford some explanation for your conduct, it does not moderate the degree of moral culpability which attaches to you.

59 In conclusion there does not appear to be any obvious external factor which might have played upon you to cause you to offend. You are an intelligent man who clearly knew the nature and consequences of your actions. It seems that you chose the course of offending for the benefits it could bring you and with your eyes well open. You engaged in significant and sustained dishonest offending and there is little to say but that your conduct involved a cynical rejection of the honest path.**

60 The precise status of the losses caused by your conduct and the ultimate impact on victims of your offending is difficult to discern. Some payments were made to Circuit Finance Pty Ltd in part reduction of the debt owed to it. The RAMS refinance loan of $625,954 remains on foot because instalments on the mortgage are still being paid from proceeds of a business conducted by your wife. And the Legal Practitioners Fidelity Fund, as described earlier, has reimbursed some parties who suffered losses but itself now claims an order for compensation from you. It is possible that some of the finance institutions (ING, Westpac, NAB) have been able to recover some if not all of the amounts of loans lent to you or your companies from securities they held. But that is not clear. As best as I can discern it the picture looks like this:

Partly repaid: $26,248 claimed as compensation and agreed.

No loss: mortgage on foot and instalments being paid.

**61 It is not disputed therefore that at least $337,677 of money has ultimately been lost and orders for compensation will be made in that amount. Nearly a further million dollars (Spouse/Tubig, Westpac and NAB) could also be outstanding and ultimately lost. You have since been declared a bankrupt and, thus, there is little or no prospect these monies will ever be recovered from you.

62 Accordingly it is likely that both institutions and individuals will have substantially suffered as a consequence of your offending. Other than a formal claim from Macquarie Leasing I have not received any victim impact statements.**

**63 You were born 24 August 1977, and are now 34 years of age. When your offending commenced in early 2006 you were 28 years old and had then been a solicitor for about 5 years.

64 You grew up in Bulleen, Melbourne to migrant parents. You have one brother, Marc, two years younger who was the co-accused with you on the two charges the subject of the trial indictment. You attended a local Roman Catholic primary school, then Marcellin College. You worked part-time at Coles Supermarket to earn money both through your secondary and tertiary education years. You were active in the Army Reserves, the SES and in St John's Ambulance.

65 You finished school with an excellent mark, sufficient to get you into Science/Law at Monash which you studied and completed in 1999. I have heard no evidence of any major episodes of illness, calamity or trauma in your youth which represents any stain on an otherwise stable and grounded upbringing. There is nothing in your family or teenage history to portend the later decline into dishonesty which these offences represent.

66 You completed your articles in 2000 with a Jon Gorr, solicitor, who later in 2004 had his practising certificate cancelled for professional misconduct. After being admitted in May 2001 you began law practice on your own account in Bell Street, Preston. Not long after, in 2002 you took the opportunity to open a restaurant/bar at 19 McKillop St, Melbourne, called 'Stray Kat'. I gather you continued your legal practice in Preston because, when Stray Kat failed as a business, you decided to move your legal practice to those city premises.

67 It appears that orthodox, humble legal practice may have been too mundane for you. Not only did you venture into a restaurant/bar, but you also opened a computer store (Mac Spot), became a finance broker, began a debt collection business and also a third party recovery business for motor vehicle repairs (akin to debt factoring).

68 Your offending commenced in 2006 when your involvement with Mr Spouse and Mr Tubig in property development and a proposed import venture put strain on your ability to meet borrowing repayments from business income, but also presented you with the opportunity to redirect clients' trust money for more immediate purposes. The picture painted of you is of a young man impatient for the trappings of success, who was prepared to resort to the dishonest use of the monies of others to get there faster than taking the path of honest earning.

69 The misuse of Tubig's money, soon lead to the series of deceptions on finance companies by means of falsified supply invoices of computer equipment. By 2007 you were engaged with Tony Nguyen in more substantial property investments, having borrowed more than $3million from banks. You had large repayment and other business commitments, but your businesses were not providing the income to meet them. So you simply resorted to crime to get more money; each new loan acquired fraudulently needed to be serviced. Crimes were committed to meet the obligations created by earlier crimes.

70 It has been said about you by your own counsel, and it is supported by Ms Matthews' opinion referred to earlier, that rather than face the consequences of business failure, and to return to humble work, you chose to dig in deeper in criminal activity in the hope that one day it would all turn to profit.

71 In November 2007 your city office was searched by police, apparently because of questions raised about the Spouse/Tubig dealings. In May 2008 your legal practice was put into receivership. The mixing up of client and personal funds was so complete that it made the untangling virtually impossible.

72 Such was your desperation however, even after those events, in November 2008, you successfully obtained the RAMS loan using fake employment documents concerning your wife, and unsuccessfully attempted to get more money from Bendigo Bank. By then the family home of your parents was so saddled with debt burden because of advances made to you to try and prop up the failing businesses and investments that it was under threat of repossession by the mortgagee.

73 Also by then, you and your family had undergone the horrific consequences of the breakdown in your business relationship with Tony Nguyen late in 2007. You endured a burglary of your residence, death threats, a stabbing, and finally the unsuccessful attempt to kidnap yourself and your wife. Ms Matthews says from that time you became significantly depressed. You have had lowered mood which has impaired your cognitive functioning. Your wife reports that from the time of the violent episodes from late 2007 onwards, you became isolated, unable to sleep and tearful most days. You presented to Ms Matthews in December 2011 as somewhat bewildered and vague, with flattened effect and a poor historian. She diagnosed you as suffering a Major Mood Disorder with residual symptoms of post traumatic syndrome, conditions which nevertheless did not pre-date your offending.

74 You have a two year old son with your wife, Ms Marranu, with whom you have had a relationship now for four years.

75 As a consequence of your offending your life has been brought to a deep low. You were made bankrupt in 2009; you will be stripped of your right to practise as a lawyer; you have or will be disqualified from acting as company director; you have been publicly and personally shamed; your family has been seriously affected and shamed, and your younger brother is in gaol for his involvement in some offences; you are and will for some lengthy time be separated from your wife and young son who will grow up visiting his father in prison; and your own mental state has been very much weakened.

76 This description may well read as a fictional nightmare scenario designed to deter any young lawyer from succumbing to the temptations of dishonesty.

77 Ms Matthews reports that, despite still having a tendency to blame others, you are very deeply remorseful for the impact of your behaviour on former clients and family.

79 You pleaded guilty to 16 of the 18 charges, contesting two. The timing of your pleas, allowing for time for your legal advisors to digest a very large amount of material and provide you with advice, signifies a degree of acceptance of responsibility for your actions although it is frankly acknowledged by counsel on your behalf that you still have some way to go in that regard. I am of the view that you are entitled to a moderate discount off the sentence you would otherwise receive reflecting somewhat more than the utilitarian value of your plea of guilty.

80 Although the aggregate sum of money involved in the offending was more than $2.6 million, the ultimate losses to victims seems likely to be well less than that amount, mainly because of recoveries from securities held and, in some instances, because some repayments were made or are still being made.

81 In conclusion, however, the sentence for your offending should take into account the following features of your behaviour: multiple incidence of and long duration of offending; large amounts defrauded, and significant losses to victims; your central role; the high maximum penalties; and, other than your guilty pleas and the suffering you have brought upon yourself, little if anything by way of mitigating circumstances.

82 Your conduct and these features place you in a significantly more serious category than your brother, Marc.**

**83 In my view, the circumstances of your offending attracts most prominently the sentencing purposes of punishment, deterrence (particularly, general), and denunciation. Denunciation and punishment are especially called for in relation to the charges concerning the misuse of trust monies. Community protection, whilst of some importance, may be of lesser prominence because your opportunities to offend will be somewhat reduced without being able to practise as a solicitor, and it may reasonably be supposed that the personal consequences to you of your offending may have had a deterrent effect of themselves.

84 Although you have no history of criminality before these offences, and you are in your early 30s, the duration of the offending, and the entrenched pattern of your brazen resort to dishonesty when the demands of money called, provides less optimism for, and thus grounds to focus upon, rehabilitation than might otherwise have been the case for a 'first time' sentence.**

85 Andre Vincent Di Cioccio, on each of the counts of which you stand convicted I sentence you as follows:

Attempt to obtain financial advantage by deception ($132,900)

**86 I order that the amounts of cumulation specified in the relevant column be served cumulatively on each other sentence and on the sentence on count 4 on indictment A11148849.2, making a total effective sentence of 7 years and 6 months.

87 I fix a non-parole period of 5 years and 6 months.**

**88 In accordance with s 6AAA of the Sentencing Act 1991 (Vic) I state that but for your plea of guilty in respect of the fifteen counts of indictment A11148849.2, and the single count on indictment A11148849.4, I would have imposed a total effective sentence for those 16 counts of 8 years with a non-parole period of 6 years and I will cause those details to be entered on the court record.

89 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 offences the subject of counts 4, 5, 6 and 14 of indictment A11148849.2, the single count on indictment A11148849.4, and counts 1 and 2 on indictment C1007368 (total of 7 counts).

90 In accordance with s 18(4) of the Act I declare that you have served 89 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.

91 I will make compensation orders pursuant to s 86 of the Sentencing Act 1991 as follows:

• Jointly against you and Marc Edward Di Cioccio, in favour of Circuit Finance Australia Pty Ltd for $26,248.73;

• Against you only, in favour of Macquarie Leasing Pty Ltd for $138,900 and in favour of the Legal Services Board of Victoria for $172,429.35.

92 I will deal on another occasion, and separately by short published reasons, with the Legal Services Board's application for an order that your name be removed from the roll of persons admitted to the legal profession kept by this court. I should say that I intend to make the order sought.**

[1] Section 3.3.21 of the Legal Profession Act 2004.

[2] Section 81(1) Crimes Act 1958.

[3] Section 321P(1)(a) Crimes Act 1958.

[4] Section 103(3)(a) Sentencing Act 1991.

[5] Section 103(3)(b) Sentencing Act 1991.

[6] R v Roussety [2008] VSCA 259; (2008) 24 VR 253.

[7] [2008] VSC 254.

[8] Full Court, (unreported 7 April 1986, 6).

[9] Ibid [40]. See also R v Krizmanic (Full Court) [1995] VSC 185 [19] (Callaway JA); R v Kesik [2006] VSC 493 [39] (Coldrey J).