Director of Public Prosecutions v Cilia

[2022] VCC 2393

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-00310

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON CILIA

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	03 October 2022
CASE MAY BE CITED AS:	DPP v Cilia
MEDIUM NEUTRAL CITATION:	[2022] VCC 2393

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW             

Catchwords:  Drug and Alcohol Treatment Order; Therapeutic Justice; Obtaining property by deception; making a false document; commit an indictable offence on bail; impersonating a police officer; plea of guilty

Legislation Cited:  
Cases Cited:

Sentence:Total Effective Sentence 126 days imprisonment and a Drug and Alcohol Treatment Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Johnson
For the Accused	Ms A. Valos

HIS HONOUR:

1Jason Cilia, you have pleaded guilty to 30 charges of obtaining property by deception (Charges 1-22, 24, 25, 26, and 28-32) and two charges making a false document (Charges 23 and 27). The maximum penalty in relation to each charge is a term of imprisonment of 10 years.

2You also pleaded guilty to 27 related summary charges of committing an indictable offence whilst on bail (Summary Charges 4, 38, 40, 42, 48, 54, 66, 78, 82, 84, 86, 90, 96, 102, 110, 124, 130, 132, 138, 140, 142, 150, 154, 160, 162, 166 and 176), for which the maximum penalty is a term of imprisonment of three months. And one related summary charge which is rolled up of impersonating a police officer (Summary Charge 201), for which the maximum penalty is a term of imprisonment of one year.

3Tendered on the Determination Hearing as Exhibit 1 was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows.

Circumstances of Offending

4Between 25 January 2021 and 26 May 2021, you advertised apartments for rent in the CBD across various websites, including "Facebook Marketplace", "flatmates.com.au" and "flatmatefinders.com.au" at a rent lower than market value. The properties so advertised were:

(i)301/65 Elizabeth Street, which was the vacant apartment of a female acquaintance of yours whom you told you would arrange to sublet;

(ii)907/7 Katharine Place, your own place of residence during the majority of your offending; and

(iii)806/300 Swanston Street.

5From the outset you had no intention of renting these apartments but used them as a vehicle for deception and self-enrichment. 

6Interested persons would contact you via your online advertisements. You would then meet your potential victims to show them the apartment, arranging for them to make a deposit or a rental payment (by cash of bank transfer) to secure the lease. Following this, you had them sign a form titled
Residential Tenancy Agreement. You sourced this form from a website called ‘LawDepot.com’, from which you can download customised legal documents. In order to secure the deposit, you would show potential victims your own photo identification, including a Proof of Age card and an Australian Passport.

7After receiving the initial payment, you would request further payment from your victims stating that there were issues with the payment transfer, or with lodging the bond with the Residential Tenancy Bond Authority (RTBA). You would promise a refund of the first payment to allay any suspicions and, to persuade the doubtful, you would send SMS messages purporting to be from
Credit Union Australia (CUA), showing the relevant transfers. 

8Some of your victims later enquired with the CUA about the status of these refunds and why they hadn't yet reached their account. They were informed by CUA that CUA could not send SMS notifications to a person who was not their customer. You would repeatedly send your victims text messages demanding money and request that they send you proof of the transfer and continued to do so for as long as your victims believed the RTBA were securing an apartment to rent. You also used these supposed transfer issues to delay the move-in date.

9Your victims all eventually refused or were unable to make further payments and when they sought to clarify the move-in date with you, you employed obfuscations, impersonations, or threats of personal harm to deter them from pressing the matter or reporting you to police. The tactics that you employed included sending your victims photos of yourself purportedly showing you in hospital for various medical conditions, purporting to be your sister and informing your victims via text message that you had either passed away or were in a coma currently in hospital or, concernedly threatening your victims that you were part of either the police, an Outlawed Motorcycle Gang, or the "Columbian Cartel".

10Your threats included "…if you go to the police you will not get a cent, I guarantee you. Except you will be dealing with the bikies so think of your family" and "…don’t ever [threaten] me with police because I will threaten you with things you don’t know exist in this country".  At other times, you would simply stop responding to your victims’ requests to move in.

11Your offending affected a total of 30 victims, all of whom were looking for rental accommodation during the onset of the COVID-19 pandemic for reasons including moving to Melbourne from a foreign country, moving out of their family home, moving interstate, or escaping from family violence. The total value that you obtained fraudulently from your offending was $102,780, ranging from $150.00 from victim Fang Yi Lo (Charge 20), up to $23,560 that you managed to extract from your victim Onyoo Hwang (Charge 1).

12You were on bail for other matters at the time of this offending and attended at Melbourne Magistrates’ Court several times during this offending period. On
24 May 2021 you were sentenced to a 15-month Community Corrections Order for the matters for which you were on bail. On 31 May 2021 you were arrested and remanded in relation to these matters. You have been remanded in custody since your arrest on the 31 May 2021 and Exhibit 19JC is a ‘custody chronology’ which sets out the periods of lockdown and quarantine to which you have been subject whilst on remand. The matter was committed on the 3 March 2022 on the 1 April 2022 was referred into the Drug and Alcohol Treatment Court for a determination hearing which concluded on 26^th September 2022.

13Exhibit 17 on the determination hearing was a clinical advisor report of
Harry Howe dated 27 May 2022. Exhibit 18, a case management assessment report from Megan Kew dated 1 July 2022. Also received was a report from Gina Cidoni psychologist dated 15 November 2021 (Exhibit 22JC) and your criminal record. Together these reports and records set out your personal narrative, your substance abuse, forensic history and your mental health. They identified your challenges and relevantly set out treatment pathways and recommendations.

Substance Use

14As to your substance use, you began drinking alcohol at 16, being a social drinker until the age of 21. However, at the age of 21 you were the victim of a serious assault whilst at university, making your way home from part time employment. That assault, which was serious in nature involving you being stabbed by a gang of up to five men, prompted your subsequent depression, post traumatic stress disorder, and relevantly, addictive behaviour including gambling and using various drugs of dependence. It is clear to me that that assault has been a primary triggering event in your life. You have always considered gambling to be your primary dependency and indeed have been the subject of exclusion orders from Crown Casino, on more than one occasion.

Criminal history

15Your criminal history likewise is consistent with your personal narrative and in particular, with your growing self-medication with drugs and gambling as a means of addressing the impact of the attack upon you. You first appeared in front of a court in 2005 and were dealt with at Sunshine Magistrates' Court with a community-based order for a period of 12 months for offending including unlawful assault, robbery and theft of a motor vehicle.

16You appeared in court subsequently for driving matters and then, in 2014, for your first obtaining property by deception offence for which you were sentenced to a term of imprisonment of three months which was wholly suspended.  Thereafter, apart from a driving offence, your primary modus of offending was obtaining property by deception for which you have received community corrections orders which have been breached and cancelled, and terms of imprisonment of ever-greater length.

17On 19 August 2019 you were arrested and remanded for multiple charges of obtaining property by deception, the facts of which bear remarkable resemblance to these charges for which you fall to be sentenced today. On 22 April 2020 you were granted bail with a residence condition at your parents’ address.

18By November 2020 you had moved out of your parents’ address and lived at various rentals in the CBD (in breach of your bail condition) where your drug use and gambling both escalated. Having no money, you resorted to what you knew best – practising criminal deception – to fund your lifestyle and your various addictions. This was the context for the index offending although,
Mr Cilia, it provides no mitigation for it. On 25 January 2021 this index offending commenced. On 24 May 2021 you were sentenced on those August 19 charges to 241 days imprisonment which was effectively time served, and a 12-month community corrections order.

19On 25 May 2021, that is the very next day, you committed the last offending on this indictment (charge 32). Thus, you were on bail throughout all this offending whilst the earlier matters of a similar nature were making their journey through the criminal courts. 

Reports

20At the time of your arrest on these matters you reported using up to five grams of cocaine per day; one bottle of spirits and weekly usage of ketamine, MDMA and GHB in varying but concerning amounts.   Mr Howe was of the opinion that you would have satisfied the diagnostic criteria for diagnoses of alcohol use disorder and stimulant use disorder at the time of the alleged offending which was severe in nature and currently in sustained remission in a controlled environment.

21Further, Mr Howe was of the opinion that the treatment and supervision component of a drug and alcohol treatment order (a DATO) would be an appropriate intervention to address your substance use disorder there being no significant concerns regarding your capacity to participate in such an order.

22Ms Kew however was of the view that, notwithstanding your insight and your apparent motivation, and wanting to be a good son to your elderly parents, who are not in the best of health, you were not a suitable candidate for a drug and alcohol treatment order.

23She referred to the multiple deception charges that were in front of the court, and the fact that those charges included making fraudulent documents.   Ms Kew was of the opinion that the offending demonstrated a concerning level of planning, cognition and forethought.  It appeared to her to be financially motivated and, although it occurred against the background of ongoing drug use, you had told
Ms Kew that you were not substance affected during the offending itself. Quite how that sits with the usage of up to five grams of cocaine and a bottle of spirits is beyond me.

24The particular purposes of a DATO are[1]:

(i)to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically-oriented and integrated drug and alcohol treatment and supervision regime;

(ii)to take account of the offender participant’s drug or alcohol dependency;

(iii)to reduce the level of criminal activity associated with drug or alcohol dependency;

(iv)to reduce the participant’s health risks associated with drug or alcohol dependency.

[1] S18X(1) Sentencing Act 1991

25There would be no doubt using five grams of cocaine a day and a bottle of spirits is not a good pathway to a healthy and active old age.  That is perhaps stating the obvious.

Submissions of Counsel

26Mr McGrath, your legal representative, submitted that notwithstanding your evident challenges, such a disposition was appropriate in your circumstances and the circumstances of your offending. He urged that your offending be seen in the context of your mental health, that is your longstanding depression, post traumatic stress disorder and your longstanding dependence.

27Mr Harrison on behalf of the Director, accepted your dependence in addition to your gambling dependence, as a contribution to your offending, but echoed the reservations of Ms Kew that having regard in particular to the nature of the offending, your lack of supports and your manifest capacity for dishonesty and your apparent admission that you were not substance affected during the offending, you were not a suitable candidate therefore for placement on a DATO.

Objective gravity

28Mr Cilia, over a period of four months you advertised properties as being for rent when they were not yours to deal with. Hard earned money was paid to you for bonds and rent in respect of the properties that you offered to your victims.  Once in your hands it was applied to your "lifestyle choices", including to fuel your gambling and substance dependencies, the gambling not being merely online but also trading in shares.

29All of your victims needed, for varying reasons, to find somewhere to live. Your deception deliberately preyed on their situational vulnerability. Your online adverts cast a net: you would sit and wait to see who was caught in it and, once caught, you would then extract as much money as possible out of each victim using, variously inducements, flattery, deceptions, impersonation, pressure, intimidation or implied or indeed overt threats of injury or death (including threats of members of an Outlaw Motor Gang coming to the home of a particularly vulnerable female victim).  

30In each case the deception only ended when the particular victim had run out of money or had realised your fraud upon them and refused to pay more. You used the same apartments multiple times. On occasions multiple victims were being deceived by you at the same time. The apartments were used as income generators for you and the unsuspecting and hopeful tenants were mere cash cows. Your deception flourished because many of your victims were both ignorant of the renting process in Victoria and also desperate to obtain accommodation.

31You gave no thought to the needs of your victims and the impact of your offending upon them. The many victim impact statements which were tendered and indeed many read out on the plea, tell clearly what that impact of your offending has been for your victims. I accept on reflecting that your offending was perhaps not sophisticated, but it was both a methodical and practised deception.  It was premeditated, it was planned to a certain extent and it was totally callous. It was thoroughly dishonest and it was further aggravated both by the threats and impersonations used when challenged and by the fact that all of the offending, (save for Charge 32) was committed whilst you were on bail for similar offending.   Charge 32 of course being committed on the first day of you being on a community corrections order. You knew that what you were doing was wrong but you continued.

General principles

32Mr. Cilia, sentencing is not about revenge or retribution.  It certainly cannot give back to your victims that which they feel that they have lost.  Rather, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is, to deter others from behaving as you did, and to specific deterrence, that is, to deter you from ever repeating such offending. I must consider the need to protect the community and express the community’s denunciation of your conduct.  I must take into account the effect of your crimes upon your victims and I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must also ensure as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending as I find them to be and must also pass no greater sentence than is necessary in all the circumstances of the case.  

33These sentencing purposes are all enlivened in your case. Specific deterrence and the need to protect the community from your continued offending loom very large indeed and your prospects of rehabilitation are in my view poor if you do not remain free from the dependencies that have dominated your recent life. However, if the court is considering making a drug and alcohol treatment order then your rehabilitation and the protection of the community (achieved though your rehabilitation) have greater importance than those other sentencing purposes.[2]

[2] S 18X(2) Sentencing Act

Findings

34On all the material in front of me I am satisfied on the balance of probabilities that:

(i)you have a polysubstance dependency (cocaine being your primary drug of concern)

(ii)that your dependency contributed to the commission of the offending in front of me.  And pausing there, it only needs to have contributed.  It does not have to be the primary factor

(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years and

(iv)that you are not charged with offending, nor are you subject to any order that would make you ineligible for a drug and alcohol treatment order. 

Reasons

35Briefly my reasons are that your guilty plea brings with it the utilitarian benefit, of saving the community the time and expense of a trial,

36It brings particular benefit in the time of COVID pandemic which benefit must be recognised.

37You have spent some 455 days in pre-sentence detention and your time upon remand has been onerous (as is clear from Exhibit 19JC which I have already introduced as the custody chronology.  You have been subject to countless lockdowns and other restrictions and uncertainties, all of which were attendant upon the custodial response, to the ongoing pandemic.

38You have displayed complete disregard for earlier court orders. You have been in and out of prison recently for dishonesty offences and it seems to me that the need to protect the community from you is high indeed. 

39However, I do accept that the assault upon you in 2005 has left a lasting impact upon your mental health in terms of your subsequent chronic depression, your PTSD and your personal development. I do not agree that you were not substance affected during the commission of this offending.

40Terms of imprisonment it is clear are not deterring you, nor are they providing you with the assistance or treatment that you require in the community.  
Mr Howe noted you had never been engaged in sustained AOD counselling at any time.  So you have not been given the opportunity for consistent and focused AOD counselling.  You have not been provided an opportunity for the kind of intensive supervision which is available on a DATO.

41Whilst your offending demonstrates an entrenched dishonesty, it is not, of itself and without more, an insuperable obstacle to your compliance on an order, though it might set alarm bells ringing at some point. I am prepared to give you the opportunity for a circuit breaker and to place you on an order.

Sentence

42On each of the related summary charges (4, 38,40, 42,48, 54,66, 78,82,84,86,90, 96, 102, 110,124, 130, 132, 138, 140, 142, 150, 154, 160, 162, 166, 176, 201), you are convicted and sentenced to 45 day/s imprisonment on each charge

43I direct that 3 day/s of the sentence imposed on summary charge(/s) 38, 40, 42, 48, 54, 66, 78, 82, 84, 86, 90, 96, 102, 110, 124, 130, 132, 138, 140, 142, 150, 154, 160, 162, 166, 176 and 201be served cumulatively upon each other and upon the sentence imposed upon charge(/s) 4

44This makes a Total Effective Sentence of 126 day/s imprisonment.

45I declare that the period in custody in respect of these offences, namely 126 days be reckoned as a period of imprisonment already served.

46On Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).

47A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

48The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

49The core conditions will operate for 28 months, or until further order.

50The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must reside at 5 Botany Street, Albanvale, for the duration of the Order or until further Order; 

(f)    you are subject to a curfew that you must remain at 5 Botany Street, Albanvale between the hours of 9:00 pm and 6:00 am, which is required until further order;

(g)   you are not to use a drug of dependence without lawful authorisation;

(h)   you are to abstain from alcohol; 

(i)    must not attend Gaming Venues, including but not limited to Crown, TAB venues, RSLs or any other venue with slot machines;

(j)    must not gamble online or via any Smart Device;

(k)   must not access any online platform that enables or promotes investment or trading in futures, crypto currency, shares IPOs or the like;

(l)    must not access any online gaming platforms of discussion boards;

(m)     limit access to one Smart Device and allow Drug and Alcohol Treatment Court officers upon request to view your search history; and

(n)   you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(i)your drug and alcohol dependency; and

(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour. 

51These program conditions will operate for two years, or until further order. 

52The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 28 months. That is made up as follows:

53Charges 1 to 32: Aggregate sentence of 2 years and 4 months (28 months).

54Mr Cilia, do you agree to being placed upon a drug and alcohol treatment order?

55OFFENDER: Yes, I do.

56I Have a compensation order, a s86 order.  I was told by
Mr McGrath it is not opposed, and I propose to make the order.

57MS VALOS:  Yes, Your Honour.

58I am signing an application pursuant to a compensation order under s6 of the Sentencing Act and it is a total amount of $102,780.

59I make the declaration that you have served 329 days pre-sentence detention.  I make no declaration at this time.  

60Pursuant to s6AAA, had you not pleaded guilty you would have been sentenced to a total effective sentence of three years and six months with a non-parole period of two years and six months.

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