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District Court 1 March 2013

R v Dimitri DE ANGELIS

[2013] NSWDC 79

Fraud & dishonesty
CRIMINAL LAW PARTICULAR OFFENCES DIRECTOR CHEAT OR DEFRAUD AND OBTAIN MONEY BY DECEPTION PERSUADED VICTIMS TO INVEST SOME VICTIMS USED SUPERANNUATION FUNDS

Citation: R v Dimitri DE ANGELIS [2013] NSWDC 79
Court: District Court of New South Wales
Date: 1 March 2013
Judge: Cogswell SC DCJ

Background

The offender was the sole director, shareholder, and secretary of Emporium Music Production and Distribution Pty Limited, a company purportedly engaged in promoting musicians and distributing recordings. Over approximately four years, he approached a range of victims, including a restaurateur, a city councillor, a university academic, and others in professional and business life, and persuaded them to invest substantial sums of money in his enterprise.

To secure those investments, the offender made a series of elaborate false representations. He claimed to have built and sold a corporate empire to Walmart for hundreds of millions of dollars, to own fleets of luxury cars and mansions, and to enjoy close personal friendships with world leaders and prominent business figures. He produced digitally manipulated photographs placing himself alongside figures including Queen Elizabeth II, multiple popes, US presidents, and Australian prime ministers, and falsified ASIC documents to show well-known business figures as shareholders in his company.

In reality, the company had no genuine business dealings of substance. It consistently ran at a loss, with bank balances frequently near zero. More than $8.5 million was transferred to the offender personally or to the company, with over $2.6 million withdrawn in cash and millions more diverted to the offender's personal accounts for personal use.

  • What was the appropriate head sentence and non-parole period for 16 counts of fraud, given the totality principle and the large number of individual offences?
  • What weight should be given to aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, including the number of victims, the vulnerability of some victims, and the sophistication of the scheme?
  • Whether harm caused to natural persons warranted greater weight than harm caused to corporations in the sentencing calculus.
  • What discount applied to a very late plea of guilty?
  • Whether special circumstances existed justifying a reduction in the non-parole period below the standard 75 per cent ratio.
  • What weight, if any, should be given to the offender's narcissistic personality disorder, childhood abuse, adult cocaine use, and first time in custody?
  • What role did general deterrence play, given the "white collar" nature of the offending?

Decision

Cogswell SC DCJ described the offending as extensive and predatory, spanning four years and 16 victims with total losses exceeding $8 million. The judge found the scheme to be sophisticated and calculated, involving fabricated photographs, falsified corporate documents, and the deliberate cultivation of personal trust with victims before defrauding them. Several victims had invested superannuation or retirement savings, and many continued to suffer financially and emotionally.

On the question of victim harm, the court considered whether harm to natural persons should attract greater weight than harm to corporations. The court engaged with general deterrence as a significant sentencing consideration, particularly for white-collar fraud of this scale and sophistication. Despite the offender having no prior criminal record and a diagnosed narcissistic personality disorder with a history of childhood abuse and adult cocaine use, the court found prospects of rehabilitation unclear and gave those matters limited mitigating weight.

The offender's guilty plea was entered very late, and the court applied a discount of 12.5 per cent, reflecting the limited utilitarian value of the plea at that stage. The court accepted that special circumstances existed, namely the offender's mental health, his first time in custody, and the need for supervision and rehabilitation upon release, justifying a non-parole period below the standard 75 per cent threshold.

Applying the totality principle, the judge declined to simply accumulate all 16 sentences, which would have produced a manifestly crushing result, and instead imposed a single sentence intended to reflect the overall criminality of the conduct while remaining proportionate.

Orders Made

  • The offender was convicted of 16 counts of fraud (14 counts under s 176A and 2 counts under s 178BA of the Crimes Act 1900), with a further charge taken into account on the Form 1.
  • A total sentence of 12 years imprisonment was imposed, backdated to 14 November 2012.
  • Non-parole period of 7 years and 6 months, expiring 13 May 2020.
  • Balance of term of 4 years and 6 months, commencing 14 May 2020 and expiring 13 November 2024.

Key Takeaways

  • The District Court applied the totality principle to avoid a crushing accumulation of sentences across 16 counts, instead imposing a single head sentence of 12 years that reflected the overall gravity of the scheme.
  • A very late guilty plea attracted only a 12.5 per cent discount, consistent with authority that the utilitarian value of a plea diminishes significantly when entered close to or at the time of proceedings rather than at an early opportunity.
  • General deterrence was treated as a significant sentencing consideration in white-collar fraud cases of this kind, particularly where the offending was sophisticated, sustained over years, and targeted multiple victims across professional and personal networks.
  • Special circumstances were found on the basis of the offender's mental health diagnosis, his first period in custody, and the need for an extended period of supervised parole, justifying a non-parole period below the standard 75 per cent of the head sentence.
  • Where an offender deliberately cultivates personal trust with victims as a mechanism for committing fraud, that feature of the conduct is treated as an aggravating aspect of the overall criminality, not merely incidental to it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 176A, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 32, 43, 53A

Cases
- R v Borkowski (1999) 195 A Crim R 1; [2009] NSWCCA 102
- Giam (No 2) (1999) 109 A Crim R 348; [1999] NSWCCA 378
- Gomes v Regina [2008] NSWCCA 142
- Regina v Jackson [2001] NSWCCA 355
- R v Mungomery (2004) 151 A Crim R 376; [2004] NSWCCA 450
- Heather Kathleen Power v Regina [2002] NSWCCA 244
- R v Shawn Darrell Richard [2011] NSWSC 866
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145