The Court states
The applicant, Raffaele Di Paolo, has applied to this Court for leave to appeal against his convictions and sentences, which are set out in the table below. The convictions and sentences arise from charges spread over three separate indictments, identified as Indictments A, B1 and C.
In the broadest of terms, these charges arise from the activities of the applicant over a 10-year period. Before, during and after that period, the applicant falsely represented that he was a qualified medical practitioner and offered ‘fertility treatments’ to people who came to him as ‘patients’. The allegations were that the applicant obtained money by deceiving clients as to his medical qualifications and carried out numerous intimate examinations, which the clients would not have permitted if they had known he was not medically qualified.
On 21 February 2018 in the County Court, following pre-trial argument and rulings, the applicant pleaded guilty to five charges of obtaining property by deception in Indictment A but not guilty to the other 17 charges, which included charges of procuring sexual penetration by fraud, common assault and indecent assault. A jury later found the applicant guilty of 15 of those 17 remaining charges, and not guilty on Charges 13 and 14. Those verdicts were delivered on 28 March 2018.
On 5 April 2018, the applicant pleaded guilty to all charges on Indictments B1 (15 charges) and C (16 charges).
The applicant was therefore to be sentenced on a total of 51 charges. The applicant was sentenced following a plea hearing on 5 and 6 July 2018 in accordance with the following table: ...
In this Court, the applicant has sought leave to appeal against the convictions on which the jury delivered verdicts on the following two grounds:
Ground 1 The trial judge erred in admitting ‘business practice’ evidence, after pleas of guilty were entered to the charges of obtaining property by deception, as admissible on the remaining charges.
Ground 2 The verdicts of procuring sexual penetration by fraud are unsafe and unsatisfactory.
In relation to the application for leave to appeal against sentence, the applicant relies on the following four grounds:
Ground 1 The sentencing judge erred in rejecting Verdins principles.
Ground 2 The individual sentences, degree of cumulation, total effective sentence and non-parole period are manifestly excessive.
Ground 3 The sentencing judge erred by doubly punishing the applicant.
Ground 4 Registration as a sex offender pursuant to the Sex Offender Registration Act 2004 was not warranted and should not have been ordered.
For the reasons that follow, we have concluded that the application for leave to appeal against both conviction and sentence should be refused.The Court states
The applicant was born in Italy on 10 August 1956 and emigrated to Australia with his parents when he was nine months old. He completed his secondary education in Melbourne and then commenced a science degree at Monash University. In 1977, he deferred that study to travel to Italy. Police enquiries revealed that the applicant did not complete any undergraduate degree at Monash University.
In Italy, the applicant initially studied at the University of Chieti and then transferred to the University of Rome at the end of 1978. None of that study led to the conferral of a degree that qualified him as a medical practitioner in Italy or Australia — a fact that he accepted for the trial in the County Court.
Upon returning to Australia in 2006, the applicant falsely purported to be a legally-qualified medical practitioner and fertility specialist. He conducted a practice in that field initially from his home in Bay Street, Brighton and later at a suite of offices in St Kilda Road, Melbourne.
Generally, people were referred to the applicant by word of mouth or by other practitioners in allied fields, such as chiropractors, natural therapists and specialists. In each of the cases that became the subject of charges, his clients were couples who experienced difficulties with conception and had already been through ‘traditional’ medical processes, such as in vitro fertilisation (‘IVF’) treatment. It was alleged by the prosecution — and ultimately accepted by the applicant through his pleas — that these clients paid substantial sums of money to him on the basis that he was practicing a ‘more natural and successful’ form of IVF treatment.
As the prosecution put its case and as we have already briefly described, the applicant purported to offer various fertility ‘treatments’ to his clients, which ranged from internal and external ultrasounds, administering homeopathic medications, endometrial biopsies, and the extraction of sperm from the testes.
The offences committed by the applicant occurred between January 2005 and May 2015. There were 30 complainants in total. The division of the charges into three indictments was as follows.
Indictment A
The charges on this indictment were alleged to have occurred between January 2005 and August 2010. Broadly summarised, the charges of obtaining property by deception (Charges 1, 12, 15, 18 and 21) related to the applicant taking payment in exchange for fertility services where the complainants believed that the services were provided by a properly-qualified and/or registered medical practitioner. The amount appropriated over this period was alleged to have been $70,750.
The charges of procuring sexual penetration by fraud involved the applicant inserting a pipette (Charge 2), an ultrasound transducer (Charges 13, 16, 17, 19 and 22) and a gloved hand (Charge 14) into the vagina of the complainants, in circumstances where they believed he was a properly qualified and/or registered medical practitioner.
The charges of common assault relate to one male complainant. On his first, second and fourth cycles of intracytoplasmic sperm injections (‘ICSI’), the applicant inserted a needle into the complainant’s testicle to extract sperm (Charges 3, 4, and 11). On the third ICSI cycle, the applicant performed the procedure six times (Charges 5 to 10).
The charge of indecent assault occurred when the applicant conducted a breast examination with un-gloved hands upon a complainant (Charge 20).
The application for leave to appeal against conviction is only concerned with this indictment. The following two indictments arise for consideration only in the application for leave to appeal against sentence.
Indictment B1
The offending covered by this indictment occurred between 2006 and 2014. The charges of obtaining property by deception (Charges, 1, 3, 5, 7, 10, 12 and 14) relate to seven complainants who paid the applicant for services in similar circumstances to those outlined above — that is, payment in return for fertility services.
The charges of indecent assault (Charges 2 and 9) occurred when the applicant performed a physical examination of two complainants’ testicles and/or penis. Charge 11, indecent assault, occurred when the applicant performed a physical examination of a complainant’s breasts.
The charge of common assault (Charge 8) occurred when the applicant conducted an endometrial biopsy and inserted a needle into the complainant’s uterus.
Charge 15, common assault, occurred when the applicant administered a homeopathic treatment by intravenous drip.
Charges 4, 6 and 13, common assault, occurred when the applicant injected unknown substances, which he claimed were homeopathic medications, into the abdomens of three complainants.
Indictment C
The offending covered by this indictment occurred between 2004 and 2015. All of the charges are obtaining property by deception, save for Charges 5 and 15 which are charges of attempting to obtain property by deception. The charges relate to 15 complainants who paid the applicant for services in similar circumstances to those outlined above.
Conviction - Grounds of appeal
Ground 1 – Admissibility of ‘business practice’ evidence
This ground appears to assert that, should it succeed, all convictions resulting from the jury’s verdicts on Indictment A ought to be set aside.
Procedural history
On 29 November 2017, the prosecution caused tendency notices to be served on the applicant, which indicated the prosecution sought to prove that the applicant had a tendency to ‘act in a particular way, namely to falsely represent that he was, or had been, a properly qualified and/or registered medical practitioner and/or gynaecologist and/or IVF specialist either in Melbourne or in Italy to … patients, medical practitioners and allied health professionals’. They also sought to prove he had a tendency to ‘falsely represent his professional qualifications and experience in order to have patients consent to procedures they believed were medically necessary and to pay for his services’.
On that same date, the respondent also served on the applicant’s solicitors a coincidence notice that they intended to prove that the applicant had a particular state of mind or did particular acts, including making false representations, orally and in writing, that he was a doctor with IVF experience, that he took blood samples and that he administered injections into clients’ abdomens.
It was made clear on behalf of the applicant that the admissibility of the tendency and coincidence evidence would be in contention for the trial.
Shortly after the trial’s commencement, the trial judge advised the parties by email of three particular authorities in relation to the topic of ‘business practice’ evidence and whether such evidence could be admitted in proof of a fact in issue, instead of tendency evidence. Those cases, which became the subject of argument, were: ACCC v Four Wheel Drive Systems Pty Ltd [2003] FCA 880; Jacara Pty Ltd v Perpetual Trustees (WA) Ltd (2000) 106 FCR 51; and Higgins (a Pseudonym) v The Queen [2016] VSCA 47.
It is sufficient for the purposes of this application to note that those cases demonstrate that separate, similar representations or acts can establish a business model or ‘business practice’. A ‘business practice’ bears directly on a fact in issue, such as the state of mind, motive or intent, rather than establishing a mere tendency to act a certain way.
After further discussion, the prosecution abandoned its reliance on the proposed tendency and coincidence evidence, and sought to have the same subject matter admitted as ‘business practice’ evidence. The applicant objected to this course, and the matter was debated before the judge.
On 15 February 2018, his Honour ruled that the evidence from individuals who dealt with the accused separately could be used cumulatively to establish that he had a ‘business system’ in place and the nature of that system. He concluded that the evidence was admissible in proof of the fraud element for the charges of obtaining property by deception (‘deception charges’) and procuring sexual penetration by fraud (‘penetrative charges’). The evidence was also circumstantial evidence going to his state of mind and motive as well as providing context for the complainants’ evidence.
On 21 February 2018, the applicant indicated that he proposed to plead guilty to the deception charges in Indictment A and, consequently, the applicant requested that the relevance of the ‘business practice’ evidence be revisited in relation to the remaining charges.
It was submitted on behalf of the applicant that the allegation that he represented himself as a medical practitioner would no longer be contested. It was put that the guilty pleas would acknowledge the fraud in relation to the penetrative charges as well as the common assault and indecent assault (‘assault charges’). Consequently, the only issue that remained for the jury’s consideration was whether the acts in those charges were, in fact, committed as the applicant denied that any such examinations or procedures actually occurred at all.
