DPP v Agostino [2014] VCC 1711 (15 October 2014)

County Court of Victoria

[Index] [Search] [Download] [Help]

---

DPP v Agostino [2014] VCC 1711 (15 October 2014)

Last Updated: 17 November 2014

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR-14-00766

DIRECTOR OF PUBLIC PROSECUTIONS
v
JOSEPH AGOSTINO

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	15 October 2014
DATE OF SENTENCE:	15 October 2014
CASE MAY BE CITED AS:	DPP v AGOSTINO
MEDIUM NEUTRAL CITATION:	[2014] VCC 1711

REASONS FOR SENTENCE

---

Subject:

Catchwords: Attempting to pervert the course of justice

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie
For the Accused	Mr R. Davis

HIS HONOUR:

1. Joseph Agostino, you have pleaded guilty to attempting to pervert the course of justice on 1 August 2013. The maximum penalty for this offence is 25 years imprisonment or a fine of 3000 penalty units. This type of offence is most serious because it is an attack on the very foundation of our criminal justice system.
2. I now turn to the background and circumstances of the offence. Gippsland Waste Services VIC Pty Limited in partnership with Tambo Waste Pty Limited, under the banner of Towards Zero Pty Limited, were contracted by the Wellington Shire Council to administer waste management services with the Wellington Shire, including management of the Kilmany Resource and Recovery Centre. Tambo Waste Pry Limited was overseen by Director Murray Webb and Gippsland Waste Services Pty Limited had two directors, yourself, Joseph Agostino, and Rodney Young. The day to day operations were overseen by your general manager, Gregory Petrie.
3. You are also the director of several other business entities and are a voluntary support worker for Kids off the Kerb, a non-profit charitable organisation situated at 326 Settlement Road in Thomastown, which specialises in recycling white goods to subsidise youth welfare programs.
4. In May 2013, as a result of an unrelated investigation conducted by the Environmental Protection Authority into Gippsland Waste Services waste management operations in the East Gippsland Shire, the EPA forwarded information to investigators detailing the manipulation of vehicle payload movements reports prior to the submission to Wellington Shire Council. On Wednesday 22 May at approximately 9.25 am, investigators from La Trobe and Wellington Crime Investigation Units executed three search warrants pursuant to the Crimes Act, at the Kilmany Landfill and Recovery Resource Centre situated in Princes Highway, Kilmany and towards Zero Pty Limited, situated at 8 to 12 St Clair Court, Sale and Gippsland Waste Services Pty Limited, situated at 106 Contour Road in Trafalgar. During the execution of the warrants at Gippsland Waste Services, a number of computers, receipts and data was collected from the various sites. At the conclusion of those searches, the directors, Mr Agostino, Rodney Young and the general manager Gregory Petrie, were conveyed to the Moe police station where a record of interview was conducted with them.
5. As a result of those allegations, your company contract was terminated, and your partner, Tambo Waste, took over the whole of the contract. Two direct results occurred; the payments due for the June 2013 were paid into an account your company could not access, and the second one was that the deposit that you had with the Council for the contract was frozen. The result of these two factors was that your company could not access these funds. Your company was then in serious financial trouble and you thought it would go out of business.
6. Over the following months, you became frustrated with the stalled negotiations with the Wellington Shire over the termination of the waste management contract. Believing that both you and the co-accused Young and Petrie were the target of a conspiracy, you doctored a series of emails which you created on your laptop computer. On 1 August 2013, you attended the offices of Kids off the Kerb, a not for profit charitable organisation situated at 326 Settlement Road in Thomastown. You there scanned and forwarded to councillors of the Wellington Shire and the East Gippsland Council and other local media outlets these emails alleged to be conversations between other parties involved in the dispute detailed in a plot to remove the accused parties, meaning yourself and your co-director and general manager, from the contract, thereby causing your company to relinquish the waste management contract with the Wellington Shire.
7. You then, in an attempt to avoid detection, printed out the doctored emails, created from earlier email conversations, blacked out your email account details and created a false gmail account before forwarding the emails to the Council, local media, yourself and your solicitor. The emails consisted of doctored conversations between Stuart Malcolm, Waste Management Coordinator at the Wellington Shire and Murray Webb from Tambo Waste Services, also Mr Bath and Mr Matthews. These conversations detail alleged collusion by Malcom, Webb, Bath and Matthews to orchestrate a removal of the Gippsland Waste Services VIC Pty Ltd from the waste management contract, thereby allowing Tambo Waste to take control and service the contract on its own.
8. This email sought to damage the reputation and credibility of the police witnesses and, in turn, create a defence for you in response to the allegations of deception raised during the police investigation. In effect, you were alleging a conspiracy and corruption between Stuart Malcolm and Murray Webb and Mr Bath and Mr Matthews. In your record of interview with the police, you said that Mr Webb had admitted secret meetings with the Council in an affidavit and you were trying to force a response to your grievances by sending these emails.
9. The receipt of this email triggered an internal investigation conducted by the Wellington Shire Council, which determined that the emails were fraudulent and the matter was reported to the police. As a result, the investigators identified the fraudulent emails were in fact sent by you, the accused, and created with the office of Kids off the Kerb. I add that the internal investigation of the Wellington Shire Council was completed on 9 August 2013. In a very short time the Council itself had determined that there was no problem within its own organisation and that the people affected by your allegations would have been cleared.
10. You again referenced the allegations raised within the fraudulent emails in subsequent communications with the Council on 1 November 2013 by stating that the allegations were, "on the street". On Tuesday 12 November 2013, at approximately 3.50 pm, investigators from La Trobe Crime Investigations Unit executed a search warrant pursuant to the Crimes Act at Kids off the Kerb situated at 326 Settlement Road, Thomastown. You were arrested for attempting to pervert the course of justice and directed investigators to your office where a Hewlett Packard laptop used to commit the offence was located and subsequently seized.
11. You then were conveyed to the Epping police station where a record of interview was conducted. When asked if you were responsible for the creation and circulation of the fraudulent email, you stated, "I did it basically." You admitted that you had created the email using your personal laptop and that the documents were stored within the computer in a folder identified by the name "Wellington".
12. You have fully cooperated with the investigating police in this matter. I find that your offending was ham-fisted and always doomed to fail to achieve what you wanted from Wellington Shire Council. Your offending in this instance has a level of naiveté about it and it is hard to understand, given your age, your life of business experience and acumen. You were always going to get caught.
13. I turn now to your personal circumstances. At the time of the offence, you were 59 years old. In a couple of weeks you turn 61. You are married man and live with your wife of 35 years. You have one child, Angela, who is 39 years old. She has recently separated from her husband partner and you have assisted her to resettle with her four and a half year old granddaughter nearer to your home. Your background is of a three year old migrant from Italy, coming to Australia with your family. You are the middle child of seven in your family. Your education is extensive. You completed Form 5 at Brunswick Tech in 1969. You financed your activities there by delivering papers, which is a job I think that has just about disappeared in the modern world. And then commences a mechanical design drafting certificate at the Collingwood Institute of Technology in 1970. From 1971 to 1975, you worked at GMH. After that you commenced taxi driving and ended up owning a couple of taxis yourself. In 1986, you commenced your work in waste management at the Melbourne City Council. In 1996,compulsory competitive tendering was introduced to Councils in Victoria and you transitioned the works at the MCC to Citywide until 1999. In the 1999 to the 2006 period, you worked for Cleanaway and Visy Industries in waste management and then took up consulting roles.
14. In the course of your consulting roles in February 2011 you were asked to assist Moltoni Waste Management, which is a company from Western Australia with their contract here in Gippsland. You, with your partner, took over this business, Gippsland Waste Management VIC Pty Limited. You worked in that business until the contractual issues terminated the activity. You continue to have litigation at VCAT concerning the outstanding contractual issues. You also face false accounting charges in the Magistrates' Court in January 2015, arising from the waste management contract. These charges are contested.
15. You have completed your education by completing both a Master of Business Admin in 1999 and a Doctor of Business Administration. You are obviously an intelligent and capable businessman who has held positions of trust and management in local government. Since mid-2006, you have been involved in charity work in a voluntary capacity.
16. I turn now to sentencing considerations. The charge of attempting to pervert the course of justice is a serious criminal matter because the offending attacks the very foundation of our criminal justice system. The charge covers a very broad range of offending, from direct interference by way of violence or death to witnesses to payment of money to witnesses or people in authority to achieve an outcome not in accordance with the law. The charge also encompasses the offending in this case, which I have already described as ham-fisted and destined to fail from the outset. Your actions would have had the opposite effect of what you hoped would result from your emails. The credibility and standing of your victims, that is Malcolm Webb, Wayne Bath and Brian Matthews, would be reinforced by this attack on their credibility by you. I find that this offending is at the lower end of the range of offences for this charge. You have engaged in a degree of sophistication in preparing and attempting to disguise the source of emails. In these days of cybercrime, your attempts to cover your tracks were simplistic and your detection certain.
17. Your offending, whilst attempting to expose council officers, an environmental officer and a competitor to the allegation of corruption and collusion would have a nasty and retributive impact on them. It was always going to fail and you were always going to be detected. There are no victim impact statements in this case.
18. You have pleaded guilty at an early stage in these proceedings. As I have said, you have also cooperated with the police at the time of the investigation. The plea was indicated at the committal mention stage. Your plea has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. You plea vindicates public confidence in the legal process set up to protect the community. You have by your plea relieved your victims from giving evidence against you. It facilitates some closure for them as victims of your offending. Your plea also is a clear acknowledgment by you that you accept the responsibility for your criminal behaviour in this case. Your plea also recognised you are willing to facilitate the course of justice in the community. I also accept your plea of guilty to these charges indicates and demonstrates remorse on your part.
19. In a couple of weeks, as I said before, you turn 61. You are before this court as a person of previous good character. You have no prior convictions. In the course of the plea, the background to this charge is you and your partner in business have been investigated for and been charged for false accounting offences in respect of the Towards Zero Pty Limited business. Those charges are listed in the La Trobe Magistrates' Court in January 2015. The charges are contested by you and your co-accused. You are entitled to a sentencing discount because of your previous good record and good character, evidenced by the no prior convictions. You have also been involved with a charity known as the Kids off the Kerb. This is a charity which seeks to give young people a chance to learn skills and work by recycling waste white goods. Your contribution to the charity is through mentorship of young people and donating your time to establish recycling programs as set out in the reference from Michael Goralski, which was prepared on 14 March 2014. Other references from Jose Maraquin, Alex Rosenlis, Ian Cooke, Kim Schubert, Nathan Sterling all refer to your work with Kids off the Kerb and your general good character, "social conscience", as they describe it, honesty and integrity.
20. Further, in 2007, you were involved with an indigenous program at Broken Hill and also in Katherine, for commercial and social ventures, that is joined together, commercial/social ventures, to assist indigenous youth with existing drug rehabilitation programs. The reference from Apineru Tuagalu, dated 28 March 2014, confirms this involvement by you. He speaks of you in the highest terms. Your direct contribution by way of your time and expertise to the less fortunate in our community, the young, drug-affected and indigenous people, in particular his testament to your previous good character and to your generosity. You are entitled to some leniency in sentence because of your prior contribution to society.
21. You have been diagnosed with depression in 2012. You have been treated since that time with counselling, which is ongoing, with Emma Luca, and medicated with anti-depressants and Serepax under the supervision of Dr Conegara. You were under this treatment regime when you offended in this case. The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances and those of the victims in this case. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as an offender are rehabilitated and reintegrated into society.
22. In this case, specific deterrence is not a prominent factor in sentencing you, because I accept your cooperation with police in the record of interview and in the investigation stage clearly shows you understand the seriousness of this matter. You, consistent with that approach, have pleaded guilty here in court. The issue of specific deterrence is not significant in sentencing you in this case. The offending in this case at its core is driven by the pursuit of money through the conduct of your business. You wanted to restore the financial position of your company by getting the Councils to reconsider the termination of contract or contracts and everything related to that termination. Just punishment for this particular offending by you is a punishment that strikes at the core of your reason for the offending, money. It is an unusual disposition for a charge such as this, but, given my finding that this offence is at the lower end of the range for this type of offence, I do not propose to impose a term of imprisonment to be served immediately or to be suspended. The learned prosecutor urged upon me to impose an immediate term of imprisonment with perhaps some of the sentence to be suspended. Mr Davis, on your behalf, submitted that a fine was within the range for this offence, but urged non-conviction disposition.
23. I find the nature of the offence is too serious in itself not to record a conviction against you. I do so after considering all the matters referred to in these sentencing considerations. The effect of a conviction may or will impact upon your ability to be a company director, but that fact alone does not persuade me a non-conviction order is appropriate in your case.
24. I must take into account your financial position when fixing a fine. It was put on your behalf that you earn $1000 a week as a consultant in the waste industry. In the course of discussion in your plea it became apparent that you have a number of properties or assets. I find that you have a capacity to pay a fine. Would you stand please.
25. I sentence you as follows. On Charge 1, you are convicted and fined $10,000. I will grant you a stay of three months for payment of the fine.
26. I order the forfeiture order of your computer as was agreed and I also order the forensic sample order.
27. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to six months imprisonment to be served immediately.
28. In relation to the forensic sample order, I am just going to read this to you. You will get a copy of this, but I just want to make sure you understand. For the purpose of undergoing the procedure, you are to attend at the Avondale Heights police station, which is at 162 Military Road in Avondale Heights, in the four-week period commencing from today and then the process is that they will take a swab from inside your mouth; do you understand what I am just telling you? They can use reasonable force to obtain that if you do not comply. Do you understand all that?
29. OFFENDER: Yes.
30. HIS HONOUR: Thank you. Is there anything else.
31. MR DAVIS: No thank you, Your Honour.
32. HIS HONOUR: Thank you. I will hand down those orders; they are signed. Thank you both for your assistance in this matter. You can take a seat, Mr Agostino.
33. (At this stage the court proceeded with another matter.)
34. HIS HONOUR: I am sorry, Mr Agostino, you can step out of there.

- - -