Hamilton mobster gets conditional sentence for fraud of nearly $400,000

A Hamilton mobster has avoided jail time after admitting his role in a forged cheque scheme that defrauded a variety store owner out of nearly $400,000.

Giuseppe (Pino) Avignone pleaded guilty in Superior Court of Justice in Hamilton Monday to one count of fraud over $5,000.

Typically such a large fraud would lead to a prison sentence, but assistant Crown attorney Andrew Scott said it was a rare" case where a lesser conviction was possible, especially during the pandemic where there is a significant backlog in jury trials.

Superior Court Justice Toni Skarica handed the 60-year-old a 20-month conditional sentence, which includes 10 months house arrest and 10 months with a curfew, followed by two years probation.

The sentence had been recommended in a joint submission between the Crown and defence.

Normally for a fraud of this type you'd be looking at a three-year penitentiary sentence," Skarica said, but he noted that the Crown would have had a hard time proving its case.

You appeared to be pawn ... the money flowed through you to others," he said.

Avignone is a known member of Hamilton's once powerful Musitano crime family. Avignone has been described as both a cousin and a brother of former family boss Pasquale (Pat) Musitano. He was born in Italy, but grew up in the Musitano's Hamilton house.

However, not once during the hearing Monday did anyone mention the Mob, mafia, traditional organized crime or the name Musitano.

The court acknowledged his serious but dated criminal record, including a 1985 conviction for conspiracy to commit murder. That conviction was for the 1983 slaying of Toronto mobster Domenic Racco. Dominic Musitano - Pat's father - was convicted of accessory after the fact in the same case.

Last July police were called to Avignone's Miles Road home, between Rymal Road East and Twenty Road East, after the word rat" was spray painted on his garage and two cars set on fire.

This was exactly a week after Mob boss Pat Musitano was gunned down in a Burlington parking lot on Plains Road East. Pat's younger brother Angelo Musitano killed in his Waterdown driveway in May 2017. The two murders are among a resurgence in traditional organized crime violence in Hamilton and surrounding areas in recent years.

Yet whatever Avignone's role was in the cheque fraud scheme, court heard he doesn't have any money to show for it. Instead, there is a free-standing order for him to pay the victim back a balance of more than $351,000 whenever he has money available.

The investigation began in October 2015 when CIBC notified the RCMP about Government of Canada cheques that had been fraudulently altered and were being cashed at Rockland Variety on Rymal Road East.

When police spoke with the owner Dalwinder Singh, he told investigators that he had known Avignone for many years as a customer of his store. Avignone had complained to him that he was having trouble cashing cheques. Singh agreed to cash the them out of the variety store for a 2.5 per cent commission.

But the cheques, cashed over six months starting in January 2015, were later returned as material altered," said Scott. They were legitimate cheques but the names had been altered. Singh was on the hook for $393,718.95 to the bank.

When Singh asked Avignone for the money he was initially given cheques, but those came back as non sufficient funds." Avignone told the victim there were others involved and not to go to police - Singh only spoke with police once RCMP came to him.

In his victim impact statement, Singh said it caused him and his family great hardship when he had to pay back such a significant amount of money quickly. His life has been miserable" and it has affected his relationship with his wife and children.

To come up with the money he was forced to sell a property in India, take out a second mortgage and borrow off friends and family.

I could have been retired at this point," he said.

Avignone's lawyer Asgar Manek noted that there were issues in the case that could have gone to trial, including an alternate suspect, but Avignone chose to take responsibility.

He said Avignone had a good work history after trouble with the law decades ago. This included work renovating and building homes, five years as a baker for Tim Hortons, and more years as a baker for Calabria Pastries.

He's now retired with three adult children and a grandchild he spends a lot of time with. He's been married for 30 years.

One of the factors considered in the plea was also Avignone's health, which was the reason for a delayed trial in this case last year. Manek said his client has heart problems, diabetes and high blood pressure. In recent years he sponsors soccer teams and raises money for Italian events, he said.

A second charge of utter forged documents was withdrawn.

Nicole O'Reilly is a Hamilton-based reporter covering crime and justice for The Spectator. Reach her via email: noreilly@thespec.com