ANDRE VINCENT DI CIOCCIO --- MACAULAY J

Transcription

1 IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION LEGAL SERVICES BOARD (ABN ) Not Restricted S CI Plaintiff v ANDRE VINCENT DI CIOCCIO Defendant --- JUDGE: MACAULAY J WHERE HELD: Melbourne DATE OF HEARING: 20 December 2011 DATE OF JUDGMENT: 24 February 2012 CASE MAY BE CITED AS: Legal Services Board v Andre Di Cioccio MEDIUM NEUTRAL CITATION: [2012] VSC LEGAL PRACTITIONERS Application to remove a lawyer s name from the Roll: s of the Legal Profession Act 2004 (Vic) Solicitor convicted of obtaining financial advantage by deception, causing deficiencies in a legal trust account, failing to pay or deliver trust monies without reasonable excuse - Whether solicitor a fit and proper person to practise Application granted. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr. S. R. Senathirajah Legal Services Board For the Defendant Mr. P. Higham Matthew White & Associates

2 HIS HONOUR: 1 Pursuant to s (5) of the Legal Profession Act 2004 (Vic) ( the Act ), the Legal Services Board applies to have Mr Andre Vincent Di Cioccio s name removed from the roll of persons admitted to the legal profession kept by this court ( the Roll ). 2 On 14 January 2010, Mr Di Cioccio was sentenced in the Magistrates Court of Victoria on one count of knowingly possessing child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic). He was sentenced to 9 imprisonment, wholly suspended pursuant to s 27 of the Sentencing Act 1991 (Vic). 3 On 7 February 2012, Mr Di Cioccio was sentenced in this court on nine counts of causing deficiency in a legal trust account without reasonable excuse; one count of fail to pay or deliver trust money; seven counts of obtaining financial advantage by deception; and one count of attempt to obtain financial advantage by deception. 4 He pleaded guilty to 16 of the 18 charges, contesting 2 of the 7 counts of obtaining financial advantage by deception. He was found guilty by a jury on both of those contested counts. Mr Di Cioccio was sentenced to a total effective term of imprisonment of 7 years and 6, with a non-parole period of 5 years and 6. 5 The table below sets out the sentences imposed by this court for each count. Charge Statement of Offence (amount) Max. Penalty First plea indictment:a Sentence 1 Deficiency in trust account ($100,503.15) 15 yrs 18 2 Deficiency in trust account ($101,866.51) 15 yrs 18 Cumulating Deficiency in trust account ($201,302.57) 15 yrs 2 years 5 4 Obtain financial advantage by deception ($375,000) 20 yrs 1 2 years 6 2 years 6 **base 1 For each of the 7 counts of obtaining financial advantage by deception, he was sentenced on the footing that he was a continuing criminal enterprise offender pursuant to Part 2B of the Sentencing Act 1991 (Vic), thereby attracting twice the maximum penalty of 10 years imprisonment for the offence. 1 T0041

3 5 Obtain financial advantage by deception (280,000) 20 yrs 2 years 3 6 Obtain financial advantage by deception ($65,000) 20 yrs 18 7 Failure to pay or deliver trust money ($15,689) 15 yrs 12 8 Deficiency in trust account ($115,000) 15 yrs Deficiency in trust account ($38,950) 15 yrs 4 1 month 10 Deficiency in trust account ($40,590) 15 yrs 4 1 month 11 Deficiency in trust account ($5,000) 15 yrs 4 1 month 12 Deficiency in trust account ($33,950) 15 yrs 4 1 month 13 Deficiency in trust account ($38,250) 15 yrs 4 1 month 14 Obtain financial advantage by deception ($625,954) 15 Attempt to obtain financial advantage by deception ($132,900) Second plea indictment: A yrs 2 years 3 5 yrs Obtain financial advantage by deception ($138,900) 20 yrs 2 years 5 Trial indictment: C Obtain financial advantage by deception ($85,318) 20 yrs 2 years Obtain financial advantage by deception ($209,000) 20 yrs 2 years 6 7 Total effective sentence: 7 years 6 6 The circumstances of each of the offences are set out in my Reasons for Sentence made 7 February 2012: R v Andre Vincent Di Cioccio [2012] VSC 28. As I said in my sentencing remarks, it appeared that Mr Di Cioccio chose the course of offending for the benefits it could bring him, with his eyes well open to the nature of his conduct. He engaged in significant and sustained dishonest offending in a fashion that bespoke a cynical rejection of the honest path. 7 Mr Di Cioccio was admitted as a solicitor and barrister of this court on 7 May 2001 after completing his articles of clerkship. He held a principal practising certificate authorising him to receive trust money from 7 May 2001 to 30 June Following his admission to practice, he commenced practising as a principal under the name Andma Legal at premises at 19 McKillop Street, Melbourne which, at the relevant 2 T0041

4 times, operated a legal trust account. 8 As a result of his earlier criminal conviction and sentence in the Magistrates Court (for possession of child pornography), the Board applied to this court to have Mr Di Cioccio s name removed from the Roll. 9 The application came before Pagone J on 24 May Mr Di Cioccio did not attend the 24 May 2010 hearing, or otherwise respond to the Board s Show Cause Notice or inform this court of his position to the application which had been made in accordance with the service and notice obligations under s (2)-(4) of the Act. 10 Pagone J adjourned the Board s application sine die, because he was not persuaded that there was sufficient evidence before him about the circumstances of Mr Di Cioccio s offending. No further evidence regarding that offending has been put before me and I pay it no further attention for the purpose of deciding this application. 11 Following Mr Di Cioccio s criminal convictions in this court last year, 18 of which involved dishonesty, and 10 of them in respect of funds of clients entrusted to him in his role as a solicitor, 3 the Board re-agitated its application (the subject application) under s (5) of the Act. The convictions of Mr Di Cioccio in this court enliven the operation of s of the Act. 12 The Board s application came before me at Mr Di Cioccio s plea hearing on 20 December Mr Di Cioccio was in attendance, represented by counsel and did not oppose the application. 13 The court s discretionary power under s (5), to remove a lawyer s name from the Roll, is supplementary to the court s inherent jurisdiction to discipline lawyers under its supervision. 4 2 Transcript of Proceedings, Legal Services Board v Andre Di Cioccio (Supreme Court of Victoria, S CI , Pagone J, 24 May 2010). 3 Indictment No: A Charges 1 to 3 and 7 to Legal Services Board v McGrath [2010] VSC 266 [4] and [9]; see also, s of the Act. 3 T0041

5 14 The test is whether the defendant is a fit and proper person to engage in legal practice (or fit and proper to be entrusted with the important duties and grave responsibilities which belong to a solicitor) and will likely remain so for the indefinite future The ambit of this enquiry has been described by the High Court in the widest terms: The expression fit and proper person is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. Fit (or idoneus ) with respect to an office is said to involve three things, honesty knowledge and ability: honesty to execute it truly, without malic affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 6 (citations omitted) 16 Where the conduct of the defendant relied upon is criminal conduct connected with professional practice, the conclusion that he is relevantly unfit arises more directly: Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man s fitness to practise than the former. 7 (citations omitted) 17 In Legal Services Board v Bourozikas, 8 Forrest J held that the repeated theft of clients funds held by the defendant solicitor demonstrated that the defendant was not fit and proper to engage in legal practice. His Honour quoted with approval the observations of Hansen J (as his Honour then was) in Law Institute of Victoria v 5 Legal Services Board v McGrath [2010] VSC 266 [9]. 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, Ziems v The Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279, [2009] VSC T0041

6 Gough: 9 The conduct (or misconduct) was grave (as were the offences), striking at the very heart of the standards of honesty and observance of proper professional standards which are essential to practice as a solicitor. Nor was there just one transaction, but a series of appropriations over a prolonged period of time. 18 The present case involves misappropriation of clients monies in the course of legal practice, as well as thefts not strictly connected to legal practice. Mr Di Cioccio s conduct was deliberate and repeated. The offences involved very substantial amounts of money, both individually and in aggregate, and they were committed over an extended period of time, more than two an a half years. 19 Adapting Hansen J s observations cited above, Mr Di Cioccio s conduct does strike at the very heart of the essential standards required of a legal practitioner. 20 I am satisfied that Mr Di Cioccio is not a fit and proper person to remain on the Roll and is likely to remain so for the indefinite future. I propose to order that: (1) Pursuant to section (5) of the Legal Profession Act 2004 (Vic), and this court s inherent power to discipline the lawyers under its supervision, the defendant s name be removed from the roll of persons admitted to the legal profession kept by this court. (2) The Prothonotary of the Supreme Court of Victoria remove the name of the defendant from the roll of persons admitted to the legal profession kept by this court. 21 I will hear the parties on any further orders. 9 (Unreported, Supreme Court of Victoria, Hansen J, 10 February 1995, 14). 5 T0041