Director of Public Prosecutions v Interlandi
[2021] VCC 666
•21 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-02622
CR 20-01212
CR 20-01363
CR 20-01565
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRONSON INTERLANDI MATAR DVIR-OVADIA ANTHONY BELFIORE |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 August 2020, 15, 16 February, 2021 |
DATE OF SENTENCE: | 21 May 2021 |
CASE MAY BE CITED AS: | DPP v INTERLANDI |
MEDIUM NEUTRAL CITATION: | [2021] VCC 666 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Interlandi pleaded guilty to 3 indictments: Obtain financial advantage by deception x 2; use false document to prejudice others; traffick drug of dependence; possess drug of dependence; knowingly deal with proceeds of crime; 3 summary offences. trafficking over 7 month period - 34 year old – business failed - declared bankrupt – Adjustment Disorder with Mixed Anxiety and depressed mood - no prior convictions - good prospects for rehabilitation – global total effective sentence 6 years imprisonment with non parole period of 3 years.
Belfiore pleaded guilty to 1 charge traffick drug of dependence; 1 charge knowingly deal with proceeds of crime; one charge possess drug of dependence. 35 year old - trafficking over 7 month period - IQ 71 - failed business - assessed as vulnerable in prison to problematic interactions and problematic interactions - good prospects for rehabilitation -
2 years imprisonment with one year non parole period
Dvir-Ovadia pleaded guilty to one charge traffick drug of dependence.
Trafficking cocaine over 3 month period; 24 year old -young offender - no prior convictions – stable background – good prospects for rehabilitation –
CCO 4 years with 300 hours of unpaid work.
Cases sited: Gregory v R (2017) 268 A Crm R 1; [2017] VSCA 151
Lytras v R [2020] VSCA 150; Roxburgh v R [2020] VSCA 228; Huynh v R [2017] VSCA 216 at [21]; DPP v Apostolopoulos [2016] VSCA 201
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Barry (plea) Ms L. Spence (sentence) | OPP |
For Accused Interlandi | Mr J Kelly SC (plea) Mr J. Slucki (sentence) | Kaczmarek Grigor Lawyers |
For Accused Dvir-Ovadia | Mr P. Bloemen (plea) Mr J. Slucki (sentence) | Kaczmarek Grigor Lawyers |
For Accused Belfiore | Mr P. Dunn QC with Ms N.Kaye | Doogue O’Brien George |
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HER HONOUR:
Introduction
1Today I shall be sentencing the three accused men in relation to charges arising out of an operation of trafficking the drug cocaine. Mr Interlandi will also be sentenced in relation to two related summary charges, as well as two other indictments.
2Dealing first with the drug trafficking matters, I will set out the details of the offending, which were summarised in the amended prosecution opening dated 12 February 2021, as they relate to all three offenders. I will then deal with the pleas made on behalf of Mr Belfiore and Mr Dvir-Ovadia and I will pronounce sentence. Then I will turn to the prosecution summaries in relation to Mr Interlandi's other offending, before dealing with the matters arising from the plea made on his behalf and I will pronounce sentence on him.
Amended Summary of Prosecution Opening – overview of the Drug trafficking operation
3On Indictment no.L1139462.1, CR-20-01212, which I will call the drug trafficking indictment, Mr Interlandi has pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possession of a drug of dependence and one charge of knowingly dealing with the proceeds of crime. The charge of trafficking simpliciter relates to trafficking cocaine in the period from 19 November 2019, to 10 June 2020. The other two charges occurred on 10 June 2020. The drug in his possession was Xanax and the proceeds of crime was the sum of $12,850. In relation to the drug trafficking charges, Mr Interlandi also pleaded guilty to two summary charges: committing an indictable offence while on bail and contravening a conduct condition of bail, namely, failing to reside at the specified address.
4On Indictment no. L11394329, CR-20-01076, Mr Belfiore has pleaded guilty to one charge of trafficking in a drug of dependence, one charge of knowingly dealing with the proceeds of crime and one charge of possession of a drug of dependence. These charges relate to the period from 19 November 2019 to 10 June 2020. The charges are drawn identically to those to which Mr Interlandi has pleaded, except that the possession charge relates to anabolic and androgenic steroidal agents.
5On Indictment no. L11432796, CR-20-01363, Matar Dvir-Ovadia has pleaded guilty to one charge of trafficking in a drug of dependence, relating to the period 10 February to 23 May 2020. A police investigation revealed that Interlandi was coordinating a drug trafficking operation, whereby he would supply cocaine to Belfiore and Dvir-Ovadia for distribution. He used fictitious details for the use of two mobile phones and used six different vehicles and a bicycle. He used a storage facility operated by Kennards in Hawthorn, near his home and office space in Milton Parade, Malvern.
6A four-week roster system was used whereby Belfiore would work for a three hour shift, using the alias 'Chris', Dvir-Ovadia would work the remaining week as his shift, using the alias 'Andy.' As well as drugs of dependence, Interlandi supplied them with a customer phone, which was used solely for contact between the “runner” and the customer, to facilitate the trafficking of cocaine. At first, such contact was made by SMS messaging, or phone calls, but later, an application named Signal, an end-to-end encrypted messaging service, was being used to avoid police detection.
7Belfiore and Dvir-Ovadia used a range of vehicles, including some that were owned and controlled by Interlandi and registered under company names, as well as hire vehicles. During the investigation, the customer phone was monitored by telephone intercepts, a listening device was installed at Belfiore's home and visual surveillance was conducted. Belfiore used three mobile phones, only one of which was registered to him, and seven vehicles, one of which was registered to his father.
8Using the name and personal details of another person, without that person's knowledge, he had direct access to a Wilson storage unit in Richmond, near his home. Records show this unit being accessed regularly, only for minutes at a time. Dvir-Ovadia used two mobile phones, both registered in the same names as two of the phones used by Belfiore. He used two vehicles and between 21 and 23 May, had access to the same Kennards storage units as Interlandi.
Summaries of the offending
9The amended summary of the prosecution opening, dated 12 February 2021, sets out the overview, as I have just described, and details the trafficking committed by each offender, as revealed by surveillance. I shall deal with the offending of each offender in turn. Following the chronology used in the prosecution summary, this commences with the role of Mr Belfiore.
Offending by Belfiore
10Between 19 November 2019 and 17 January 2020, Belfiore supplied cocaine to approximately 34 customers from his car, in similar fashion, from the vehicle he was driving. On one of these occasions, 28 December 2019, Interlandi was seen to hand Belfiore a dark coloured wine bottle bag, said by the prosecution to contain cocaine. Shortly after that, Belfiore was seen to supply people with cocaine in his vehicle on three separate occasions.
11On 29 December 2019 and the 1st - 4th of January 2020, he had telephone conversations concerning the supply of cocaine to customers and the quality of the drug. At around this date, a listening device was activated in Belfiore's home and the summary sets out selections from the conversations recorded. Belfiore was heard to discuss on the phone a range of topics connected with trafficking. This included the amount of cocaine supplied to people and discussions about instructions from Interlandi concerning the use of hire vehicles and that it was time to move his address and change his routines to minimise suspicion.
12Belfiore was recorded telling someone in person at his home how much he helped Interlandi in the operation, saying that it was: 'easy money'. On 25 and 26 January, he was recorded arranging drug purchases with customers. Similar instances of trafficking were observed and conversations concerning arrangements were recorded in February, with Belfiore and Interlandi commenting on business ‘being good’ and Interlandi warning Belfiore of the risks of being caught and what to say to the police if he were. Belfiore told a visitor to his house that he has made so much money he is out of debt and that by March 2020, he had saved $100,000.
13During March, as the COVID-19 crisis began, Belfiore told a visitor that he was anxious about putting himself at risk, dealing with money. He suggested to Interlandi that they limit their customers to their ‘good mates’, with which Interlandi agreed. He told a visitor that Interlandi had thanked him for this idea and stated that he and Interlandi needed each other and that he had told Interlandi that when they were able to reopen, they would ‘boom again’.
14In April, Belfiore continued trafficking and at Interlandi's request, he registered a vehicle in a company name, to be used for selling cocaine and in May, repeated the exercise for another vehicle. Belfiore's home was searched on 10 June in his presence. Items found included five quantities of cash, three separate quantities of steroids, a mobile phone and various documents relating to the use of false identities.
15Belfiore was arrested while seated in a vehicle, for which he had arranged the registration transfer in May. In a covert storage compartment in the vehicle, police found multiple small bags of cocaine, weighing in total 87 grams and $2,120 in cash. He was interviewed and made admissions but said he did not like to call what he had been doing ‘drug trafficking’. He called it, 'servicing the community.' Belfiore was remanded in custody and was granted bail after 56 days on 5 August 2020.
Offending by Interlandi
16I now turn to the summary of Mr Interlandi's involvement. On 21 December 2019, Interlandi was seen with Belfiore at a café in Hawthorn. About three hours later, Belfiore entered Wilson Storage in Richmond, carrying two black storage tubs. After leaving there, he drove to various locations and sold cocaine to people in his vehicle. On 28 December, Interlandi went to Belfiore's home, carrying the dark coloured wine bottle bag already mentioned, which he handed to Belfiore and left. A few minutes later, Belfiore drove away from his address with an associate seated in the front passenger seat and still in possession of the wine bottle bag. About two hours later, he stopped in Fitzroy and a woman got into the rear of the car for about two minutes. Two hours after that, he stopped at two locations in Richmond and sold cocaine to persons who entered the car. These are the transactions I have already referred to in relation to Belfiore's offending.
17The prosecution submission is that I should draw the inference that the bottle bag contained cocaine, which is not admitted by Interlandi. The defence submission in this regard is that it would be speculation to draw that inference. Given the circumstances of the transfer of the bottle bag by Interlandi to Belfiore and the proximity and time to the trafficking Belfiore then committed, I consider this is a safe inference to draw.
18On 22 January, Interlandi commenced the rental of storage units at Kennards Storage in Hawthorn, providing false details and also the number for a phone used by Dvir-Ovadia. Interlandi paid the rent there in person on two occasions. Belfiore did so on one occasion. On 28 January, Interlandi was recorded speaking with Belfiore in Belfiore's home, discussing how they managed customer demand.
19On 31 January 2020, Interlandi went to an office suite in Milton Parade, Malvern, where later, as a result of a search warrant being executed, a large quantity of cocaine was found. He left the address that day, carrying paperwork.
20During February, March and April, Interlandi and Belfiore were recorded discussing the continuing success of the operation, including the preferred use of rental cars and the payment of $13,000 in cash, using a false driver's licence for a vehicle to use in the operation. This vehicle had tinted windows and an elaborate mechanical hidden compartment, in which to hide drugs and avoid police detection.
21On three occasions between 21 and 26 May, a recently installed optical and listening device at Kennards storage unit captured Interlandi and Dvir-Ovadia attending there. Dvir-Ovadia was seen removing drugs from a container and placing cash into it. Later, Interlandi was seen removing cash from the container. Since mid-2018, Interlandi had been renting office space in Milton Parade, Malvern, to store and prepare cocaine for sale. During May and June 2020, he was observed via CCTV going to Milton Parade for very short periods of time. He would obtain cocaine there and deliver it a short time later to Belfiore. Cocaine obtained from there was later located within the hidden compartment of the Captiva vehicle, registered 1EK 8SV, the vehicle purchased by him for $13,000 in April.
22On 10 June, the police executed search warrants at Interlandi's home, and he was arrested there. Police found drugs, cash, mobile phones, keys to the Milton Parade address and other items. The keys were used by the police to gain access to the Milton Parade office, where cocaine and related items were found. A total of $11,330 was found at Kennards Storage in Hawthorn.
23Interlandi was remanded in custody and has remained there. Drug analysis revealed that a total of 376.6 grams of mixed cocaine was located at Milton Parade and Interlandi's home. The weight of pure cocaine in this quantity was between 248.7 and 322.6 grams. Of that amount, a total of 87 grams of mixed cocaine was located in the vehicle in which Belfiore was arrested. This was the subject of discussion during the plea hearing and it is clear that the 87 grams was included in the total of 376.6 grams.
24In December 2018, Interlandi had been bailed from Melbourne Magistrates' Court on unrelated theft and deception charges. One of the conditions was that he reside at his address in Hawthorn. During the investigation, it was established that he had been living with his wife and child at a different address. He had continued to commit offences whilst he was on bail and throughout the period of the investigation. Accordingly, he was charged with the summary offences that I've already mentioned, which were committing an indictable offence on bail and contravening a condition of bail.
25To summarise Mr Interlandi's role in the drug offending, he organised and controlled the sophisticated operation. It was run as a business, set up for profit making, motivated by financial reward. He made the decisions and supplied the equipment and drugs to the others.
Offending by Dvir-Ovadia
26Turning now to the offending by Mr Dvir-Ovadia. He worked for a one-week shift, after Belfiore's three week shift, as I said earlier. He used a customer phone, as did Belfiore, supplied by Interlandi for use in the operation. Using the alias “Andy”, he used two mobile phones, both registered in the names of others. He used two vehicles, the Holden Captiva referred to earlier and for a short period, a hire car. For two days, he had access to the Kennards storage unit in Hawthorn.
27On 10 February 2020, he hired a vehicle for use in the operation and on 13, 14 and 15 February, while in possession of the customer phone, he met with people to sell drugs. While Interlandi organised storage with Kennards at Hawthorn, he listed the mobile phone used by Dvir-Ovadia on the storage agreement. On 2 March 2020, Dvir-Ovadia attended Kennards and paid the rental charges for the storage unit.
28On 10 March, Dvir-Ovadia met the other accused at Belfiore's home. He was in possession of the customer phone from then until 15 March and during that time, he met up with people to sell drugs. On 15 May, the Captiva vehicle 1EK 8SV, which Interlandi had bought for $13,000, mentioned earlier, was observed parked outside the home of Dvir-Ovadia. On 21 and 23 May,
Dvir-Ovadia went to Kennards Storage in Hawthorn and his activities were recorded on the recently installed camera. I have already described them in relation to Interlandi's actions on those dates. In summary, Dvir-Ovadia left the premises with drugs and cash he obtained there. He was arrested on 15 June 2020 and interviewed and made no comment. He was released on bail.Gravity of the offending
29I turn now to the gravity of the offending generally, in relation to the drug trafficking charges against all three offenders. The offence of trafficking in a drug of dependence is punishable by a maximum penalty of 15 years' imprisonment. Possession of such a drug is punishable by imprisonment of one year, if the possession was not for trafficking purposes, or five years otherwise. For knowingly dealing with proceeds of crime, the maximum penalty is 15 years' imprisonment and for each of the summary offences, three months or a fine.
30The quantity of cocaine located was very close to that which qualifies as a commercial quantity[1]. The drug selling was prolific, with the operation taking place over a significant period of time, November 2019 to June 2020. It was well planned and organised by Interlandi, from the rostering of ‘runners’ and the use of professional storage to the provision of dedicated mobile phones and vehicles especially purchased, or hired, with false names and identities used for these transactions. It is clear that each offender was keen and enthusiastic, and each was motivated and involved for financial reward.
[1] For a commercial quantity – 500 grams mixed, or 250 grams pure. The mixed quantity in this case was 376.6 grams. The weight of the pure quantity was between 248.7 and 322.6 grams.
31Such serious offending warrants the significant importance of general deterrence and denunciation and aspects of specific deterrence also call for careful attention. The specific role of each offender needs to be determined and I will set that out as I deal with each offender in turn.
32I shall now deal with the plea made on behalf of each offender, addressing each offender in turn.
The plea on behalf of Belfiore
33Mr Belfiore, Mr Dunn, on your behalf, submitted that your role in the drug trafficking operation was simple and uncomplicated and that your limited capability generally means that the need for both general and specific deterrence is reduced. By contrast, the prosecution painted you as having an important role, in being entrusted to negotiate with customers, dealing with and reporting directly to Interlandi and providing him with advice. On occasions, you were personally involved in the renting of storage facilities and the collection and use of vehicles. You sometimes organised others to assist with the delivery of drugs to customers, as is apparent, for example, from a recorded telephone conversation on 28 January 2020[2].
[2] Carmen Gomex and Allen Nash
34Mr Dunn responded that such organisational assistance as you gave was only on occasions and it was not complicated, but merely illustrated your enthusiasm for the task. My conclusion is that you were more than just a runner, you were part of a trusted group, but despite that and notwithstanding the giving of advice to Mr Interlandi, which he acknowledged, you were an operative at a fairly low level. You were involved for about seven months, commencing at a time when your business had failed, you were abusing illicit drugs and you were estranged from your family.
35Your background explains why this had occurred. You are the youngest of three children of your parents, from a law abiding, hardworking and financially successful family. Your parents divorced when you were 11 and you then lived with your mother and two older sisters. You struggled at school and left in Year 9 to work in a pizza shop.
36Whilst growing up, you were never assessed formally as to your difficulties with comprehension and it was not until you were seen by the clinical psychologist Mr Michael Bilyk, last November, that your intellectual capacity was found to be in the ‘lower extreme to below average’ range, with an IQ of 71. Mr Bilyk explained that your verbal and problem-solving abilities are equivalent, approximately, to primary school levels, leading to communication problems and a limited ability to draw inferences and understand implications. I take all these matters into account in sentencing you.
37After leaving school, you worked in many jobs over the years and became competent at pizza making, eventually leading to the purchase of a pizza shop business with the financial backing of your family. For four years, it involved working long hours, but you were unable to cope with the administrative side of the business and incurred tax and other debts and became very stressed. You began using alcohol and drugs, particularly cocaine, on which you became severely dependent and you lost contact with your family.
38The business was sold, and your family lost their money. Interlandi had assisted you by introducing a buyer for the business and you felt obligated to him. Thus, began your involvement in trafficking. Mr Bilyk was of the opinion that this might have been a maladaptive way of coping with emotional distress.
39Upon your arrest you spent 56 days in custody, and you were released on bail to undergo rehabilitation and to reside with your mother. You have remained drug free and have continued to attend psychological counselling with Mr Bilyk and drug counselling. Mr Bilyk considered that the removal of the stressors that accompanied your drug taking, together with lifestyle changes and engaging in counselling, reduce the risk of your reoffending to a low level. He considered that risk could be higher if imprisonment were to increase your stress and destabilise your good progress.
40Mr Bilyk thought you might be vulnerable in prison, and without further attention being given to your learning difficulties, you may continue to be vulnerable to problematic interactions and potential suggestibility. To this end, your family are very supportive of you.
41During the COVID restrictions last year, you volunteered with an organisation called Alex Makes Meals, assisting with the preparation and delivery of meals to frontline workers, such as those in hospitals.
42In recent times you have been employed and as a 35-year-old man with no prior convictions, you have not offended in any way since you were bailed. You pleaded guilty early at a time when the justice system was and still is facing delay associated with the COVID-19 crisis, and for that you are entitled to a discount on your sentence, for its utilitarian benefit, as well as being an indication of remorse. Otherwise, the only evidence of remorse is the great regret you have expressed to your family and friends.
43While there was nothing overtly to suggest that you do understand the terrible effects of illicit drug use in the community and that you are indeed remorseful about your involvement, I can draw the inference that your ongoing commitment to drug counselling will remedy that deficit. Mr Dunn submitted that a Community Correction Order, was appropriate, either with or without a further term of imprisonment. Mr Barry for the prosecution opposed this.
44My conclusion is that an appropriate sentence must be based on your relatively low-level role, well below that of offenders in cases such as Gregory[3], Lytras [4]and Roxburgh[5], all of which I was referred to.
[3] Gregory v R (2017) 268 A Crm R 1; [2017] VSCA 51
[4]Lytras v R [2020] VSCA 150
[5] Roxburgh v R [2020] VSCA 228
45In Roxburgh, the Court of Appeal granted leave to appeal against the sentence of four years and nine months, for trafficking in a commercial quantity, as well as trafficking simpliciter. Weinberg JA commented that this sentence was outside the range for an offender who had the prospect of residential drug treatment and had the support of his parents, even though he had prior convictions and had been in prison before. Your circumstances are, to some extent, not dissimilar.
46Because of your good prospects, and the progress you have made towards your rehabilitation already, there is less need for specific deterrence in sentencing you, than for general deterrence. Drug trafficking is a serious crime and as the learned prosecutor rightly submitted, this is a serious example of it and the sentence must reflect that.
47I have taken into account the burden imposed by any COVID-19 restrictions operating now, or in the future, in the prison system, including the possible need for quarantine and the possibility that visits and courses may remain restricted, although I understand that restrictions on visits were lifted last week.
48Mr Belfiore, will you stand now. I sentence you as follows:
Belfiore sentence
For Charge 1, 18 months' imprisonment.
For Charge 2, 12 months and for Charge 3, nine months.
The sentence for Charge 1 is the base sentence for the purpose of cumulation. I order that five months of the sentence for Charge 2 and one month of the sentence for Charge 3 be served in cumulation upon the base sentence. That results in a total effective sentence of two years.
I order that you serve a minimum period of one year, before being eligible for parole.
You were in custody for 56 days, before being released on bail and I direct that those days be reckoned as already served and I shall note that on the court record.
Pursuant to s.6AAA, if you had pleaded not guilty, I would have sentenced you to three years' imprisonment, with a non-parole period of two years.
There is an application by the prosecution for a disposal order. Is there consent to that, Mr Dunn?
49MR DUNN: No problem with that, Your Honour.
50HER HONOUR: All right, thank you, unopposed. I make that order.
I have extracted from the sentence a copy of the sentence itself for the assistance of counsel. I will just give you a moment to have a look at that.
51MR DUNN: Thank you, Your Honour.
Plea on behalf of Dvir-Ovadia
52Mr Dvir-Ovadia, you are a 23-year-old single man with no previous convictions and no issues with the abuse of drugs or alcohol. You were one of the ‘runners’ used to sell drugs at various places, using a phone and one or more vehicles supplied to you by Interlandi between 10 February and 23 May 2020.
53I have already set out in my remarks earlier the details of your involvement. It was submitted by Mr Bloeman on your behalf that you should be sentenced as an offender at the lowest end of the scale in this case, as a street level trafficker, with limited possession of the customer phone and selling drugs for a week at a time during three periods of time in February, March and May.
54The prosecution submission was that you played an important role in this serious offending, comparable to that of Belfiore, in that you were trusted to negotiate with and sell drugs to customers. You dealt directly with Interlandi and advised him and you were personally involved in attending storage facilities and in the collection and use of vehicles.
55On careful consideration of the prosecution summary as to your involvement, I have concluded that while you were indeed a trusted operative, your role was lower than that of Belfiore. You were engaged as a ‘runner’ on relatively few occasions and it is accurate to describe you, in Mr Bloeman's words, as a foot soldier. Mr Barry for the prosecution submitted that, for the same reason as those in Belfiore's case, a Community Correction Order is not appropriate.
56At 23, now 24, you are the youngest by far in this group of offenders. You were completing the fourth year of a plumbing apprenticeship at the time and you had met Interlandi when working as a butcher after school and both days of the weekend. You later attended the same gym as he did.
57Your parents immigrated from Israel and both have professional backgrounds. You were born soon after their arrival in Australia and you have an older and a younger brother. None of the family have ever been in trouble with the law. You completed secondary school and you were an accomplished musician and hockey player. You studied performing arts at Monash University on a music scholarship for a year, abandoning that to take up an apprenticeship, having become familiar with working as a plumber during vacations. You saw that as a career with a future and you are now a fully qualified plumber, training apprentices.
58You live with your partner, whom you have known for some years, now in an established relationship. It appears that after such a promising start, you have now been a great disappointment to your family and for that you are indeed very sorry. It is also apparent that this offending is out of character, confirmed by those who have written letters to the court on your behalf. Those writers also refer to your remorse and to some extent, your insight into the effects on the community of such offending. Your mother has written that she is at a loss to understand why you offended and indeed, there is nothing in your background, character, or experience that explains it, other than falling in with the wrong people.
59You are a young man and it is acknowledged that immaturity can be allowed for, in the sense that your criminality is lessened and your rehabilitation is an important focus of sentencing. That aspect was dealt with in the case of Hunyh, a decision of the Court of Appeal in 2017, where it was recognised the potential for rehabilitation in a young person may be impeded by imprisonment[6]. The issue has also been discussed more recently in scholarly papers, referring to young adult offenders as a distinct group requiring a distinct approach, because of their incomplete neurological development[7].
[6] Hunyh v R [2017] VSCA 216 at [21]
[7] The sentencing of young adults: a distinct group requiring a distinct approach, Emmanual,
Mawer &Janes Crim LR 2021 203; Rethinking sentencing for young adult offenders, Sentencing Advisory Council 2019
60Your early plea of guilty can also be taken into account in this way, as well as being recognised for its utilitarian value in expediting the case, avoiding a trial and sparing witnesses from having to give evidence. That means, you are entitled to a discount on your sentence.
61Your stable background and very likely a stable future is an indication that your prospects for rehabilitation are very good. Whilst on bail, you have applied yourself to your work and according to your employer, you are now the head plumber in the business and a dedicated and determined tradesman.
62I was referred by Mr Bloeman to the decision in Apostolopoulos[8], a case with some similarities to your case, where the offender, aged 33, was placed on a Community Correction Order. The Court of Appeal held that this was lenient, but a CCO was warranted. The prosecution position was that because this was prolific high-end trafficking, at the upper end of trafficking simpliciter, only a prison term is appropriate to reflect its gravity.
[8] DPP v Apostolopoulos [2016] VSCA 201
63As I have said, you were much younger than the other offenders and much less involved, a runner with street level involvement. Your sentence must reflect that difference, as well as the positive and protective factors in your favour. Even though general deterrence is clearly important, criminality which is lessened by youth and immaturity warrants a reduced sentence.
64Taking all matters into account it is appropriate that I do impose a Community CorrectionOorder. It covers all charges and convictions will be recorded.
Sentence Dvir-Ovadia
65I will ask you to stand now, Mr Dvir-Ovadia and I will just explain this to you. It will begin today, and it will last for four years.
66You have been assessed as suitable, as you know, with the only appropriate condition, in addition to the core conditions, being an order for community work and I order that you perform 300 hours of unpaid community work.
Mr Dvir-Ovadia, do you agree to be bound by the conditions of the order?67OFFENDER DVIR-OVADIA: Yes, Your Honour.
68HER HONOUR: You must understand that if you breach the order, you will be charged with that offence and brought back to the court for resentencing.
69There is an application by the prosecution for a forfeiture order. Is there consent to that?
70MR SLUCKI: Yes.
71HER HONOUR: Thank you. I make that order. I will get Mr Dvir-Ovadia to sign that now. Would you like to go with my associate to the dock, Mr Slucki?
Plea on behalf of Interlandi
72Mr Interlandi, I now turn to your matters, commencing with reference to the two other indictments. On Indictment No.J10558426.1, CR-18-02622, you have pleaded guilty to one charge of obtaining a financial advantage by deception. For purposes of clarity, I shall call it the first indictment, or the charges relating to the vending machines.
73You entered that plea at a hearing which commenced on 17 August 2020. It was adjourned by means of a deferral, because further matters were pending. You were in custody at the time and had made an unsuccessful bail application. On Indictment no.L12387376, CR-20-01565, the second indictment, you pleaded guilty on 18 November 2020 to one charge of obtaining a financial advantage by deception and one charge of knowingly using a false document. You also pleaded guilty to the related summary charge of committing an indictable offence whilst on bail.
74For completeness here, I also mention the third Indictment No.L11394624.1. CR-20-01212, you pleaded guilty on 16 February 2021 for the drug charges, as already set out at the commencement of these sentencing remarks. I have already summarised your role as described in the prosecution opening and I shall return to that later.
75I shall now refer to the prosecution summary pertinent to the deception charge that relates to The Lean Machine Pty Ltd matter. I note here that the maximum penalty is 10 years' imprisonment. By way of introduction, your background is that you are a 34-year-old married man, born to a well-regarded farming family, who completed secondary school and a plumbing apprenticeship.
76You worked full time as a plumber in the Leongatha area near your family's farm and later moved to Melbourne and then London, where you continued to work as a plumber and later back in Melbourne as a project manager. You then started your own business in 2013. You and a friend, Jess Attenborough, incorporated a company called The Lean Aussie Machine Pty Ltd. This was a business supplying healthy food options in vending machines. Two months later, another friend, Christopher Wright, joined the business and became a director with you and Attenborough.
77Each director contributed financially to the business and were shareholders, with you being the majority shareholder. The Lean Aussie Machine used mortgage brokers to obtain leasing finance from various finance companies, enabling it to obtain the vending machines from a company called Vendzone. The finance companies would pay Vendzone the cost of the machine and Lean Machine would pay monthly instalments to the finance companies, which remained the owners of the machines.
78In mid-2014, you left your other job and began working full time for Lean Machine, as did Wright in early 2015. From about this time, the relationship between you and the other two directors began to deteriorate. By then the business had leased 36 vending machines, which were located in various locations. The business began to struggle and at the end of 2015, Attenborough left it, as did Wright in early 2016. When the business was failing, you asked your family for financial assistance, which they provided, hoping you could trade out of it. You were working 60 to 70 hours a week, travelling around the state, manually filling the vending machines yourself.
79In early 2016, you approached the Melbourne Vending Company, wanting to sell two vending machines to them. That company purchased two machines for $11,000 and you began negotiating for the sale of the remaining machines. You stated that your business owned the machines outright. You did not tell the Melbourne Vending Company that the machines were leased, and they bought a further three machines for $16,500, followed by a further 24 machines for $174,000. There was an additional amount to be paid for stock and the float, being the amount of the coins inside the machines. The agreement drawn up for this latter sale provided that all machines were free of any encumbrances.
80During July, a total of $201,500 was paid by instalments into either your personal bank account, or that of the business. The amounts paid into the business account were transferred by you into your personal account. Neither you, nor the business, were the owners of the machines and did not have permission to sell them. You made no attempts to pay the outstanding amounts owed to the finance companies[9]. You admitted this to your former business partner Attenborough and stated that you owed people money that you needed to pay back.
[9] These included BetterRent, Metro Finance, BOQ Equipment Finance, Service Finance, GoGette Better Equipment and Macquarie Leasing.
81While your deception resulted in you receiving $201,500, Melbourne Vending Company suffered only minor loss, because it retained possession of the 29 machines for which it had paid. The exception was a settlement with the finance company Betterrent, in the amount of $3,300. The actual loss incurred by the finance companies was $99,056, being the balance of the amounts owed to them by Lean Machine.
82You were declared bankrupt in 2017, causing you great anxiety, low
self-esteem, and low self-confidence. You worked intermittently as a plumber. The offending in relation to the vending machines was deliberate and resulted in a very significant loss to the finance companies of around $99,000. As I have said, Mr Kelly submitted that, in effect, the deception should be viewed through the prism of a first-time business venture which failed and that the offence occurred through your efforts to recoup the loss. You had become anxious, exhausted and desperate, suffering from insomnia. Eventually you were pursued by debt collectors, resulting in your bankruptcy.83You were charged with this offence on 19 February 2018. In June 2020, you were arrested and charged with the drug trafficking matter and remanded in custody. At the time of the plea date in August 2020, your counsel indicated that a submission would be made that a CCO was an appropriate sentence for the deception charge[10].
[10] I note that I have not heard or received submissions from the prosecution as to sentence in relation to this deception matter,
84The second indictment, L12387376, CR-20-01565 contains two charges. That relates to your use of a false document, to obtain by deception the sum of $7,095.90. The maximum penalty for each of those two charges is 10 years' imprisonment. Your accountant was James Mavrokokki, who operated an accounting firm called Accountancy Matters. You became friendly with him and you entered into an agreement with him to falsely represent that you were employed by him as a business development manager and paid an income. This was done to enable the accounting firm to save tax.
85Between 30 March and 1 June 2020, Mavrokokki would pay you $790.59 per week before tax and you would pay him the same amount in cash each month. Mavrokokki would then lodge with the Australian Tax Office, with your knowledge, false payslips, claiming you were employed by Accountancy Matters, with the intention of inducing the ATO to accept them as genuine, thereby prejudicing the ATO. You committed these offences while on bail, hence the summary charge. You were arrested for these matters on 10 June 2020 on summons and pleaded guilty at the committal mention on 18 November 2020.
86The financial loss for the ATO from this offending was relatively modest and the offending was over a short period. The idea was that of your accountant. He generated the false document and he was the principal beneficiary. It is offending at the lower end of the range of seriousness for this matter.
The plea in mitigation
87Turning now to the plea in mitigation, on 17 August 2020, I heard initial submissions from Mr Kelly on your behalf, referring to your early background and your first foray into business, the Lean Machine vending business. Although the business grew, neither you, nor the other directors ever made a decent living from it, and your parents had invested heavily. You felt betrayed by your partners when they left the business.
88You met your wife Alice in 2014 and you were married in 2019. Your son was born in February 2020. Your wife was able initially to live with your parents at Leongatha, the home to which you will be able to return when you are released. You have had no physical contact with your family, in particular, of course, with your infant son, since your arrest, because of the COVId-19 restrictions on prisoners and you have only been able to see them on the screen.
89Your experience of prison for the first time has been difficult, having to contend with the 14-day quarantine and having limited contact with your wife. She was struggling, looking after her new baby and you felt the anguish of being unable to help her.
90In 2016, at the time of the collapse of Lean Machine, when you were pursued by debt collectors and threats were made to you and your family, you saw a psychologist, Mr Dean Grimshaw, who diagnosed post-traumatic stress disorder. You attended 17 sessions with Mr Grimshaw and responded exceptionally well to treatment. However, following your bankruptcy, your condition worsened, and you were diagnosed with adjustment disorder, with mixed anxiety and depressed mood. Once again, by about mid-2017, you did then respond well with treatment.
91However, at this time, your despondency had led you to drug use and then to selling drugs to finance your use and to try to reclaim your lost investment funds. You were assessed by Ms Carla Ferrari in July 2020, in anticipation of a bail application at that time in the Magistrates' Court. Ms Ferrari diagnosed major depression, with suicidal ideation, with symptoms having worsened in custody. At the same time, you realised that you could function without cocaine and you were able to complete a drug program and undergo drug screens, all of which were negative.
92The testing administered by Ms Ferrari indicated extremely severe symptomatology, which she considered required immediate treatment to prevent further decompensation. She noted that you displayed above average intelligence and had good insight and judgment in understanding the deterioration in your mental health and the decline into substance abuse to manage this.
93Your time in custody has coincided with the long period of restrictions all prisoners have had to contend with, including very limited access to programs and isolation from others. Being unable to have physical contact with your infant son, as I have mentioned earlier, is impeding your bonding with him, normally this could have been ameliorated by prison visits, unavailable in recent times. All these are mitigating factors to be taken into account. You told Ms Ferrari that you have plans for the future, hoping to return to your trade of plumbing initially, to pursue treatment as before and re-establish your family life.
94You have no prior convictions and despite the accumulated offending over a relatively short period, according to Ms Ferrari, you do not have an entrenched criminal attitude. Your early pleas of guilty in relation to each indictment have utilitarian value in having avoided a lengthy trial, or series of trials, and such pleas have particular value at this time, when COVID restrictions have been in place. It follows that a discount on your sentence is warranted. I also accept your plea of guilty as indications of remorse, which you have made explicit in the letter you wrote to the court and to which your wife refers in her written reference.
95Your prospects for rehabilitation appear to be good. Whilst in prison, despite restrictions, you have achieved several certificates and completed a number of TAFE certificate courses in business. Your teacher writes that you have completed this work to a very high standard and you have plans to undertake university studies when sentenced, or when your sentence is completed. I understand that that may be possible whilst in prison.
96References written by members of your family describe a family-minded person with no indications of antisocial attitudes, or criminogenic tendencies, leaving an impression of an offender with some insight and motivation to improve, who is unlikely to offend again. In sentencing you, I shall order some modest cumulation of sentences, to reflect the different occasions and different types of offending, whilst having due regard to the principles of totality and parsimony.
Sentence Interlandi
97I sentence you to the following terms of imprisonment.
On Indictment J10558426.1, CR-18-02622:
For Charge 1, obtaining a financial advantage by deception in 2016, the Lean Machine prosecution, two years.
On Indictment L11394624.1, CR-20-01212:
for Charge 1, the charge of trafficking in a drug of dependence, five years.
For Charge 2, the charge of possessing a drug of dependence, six months. For Charge 3, the charge of dealing in the proceeds of crime, 12 months.
For summary Charge 4, of committing an indictable offence while on bail, one month.
For summary Charge 5, contravening a bail condition, 14 days.
On Indictment L12387376 CR-20-01565:
for Charge 1, the charge of obtaining a financial advantage by deception relating to the Australian Tax Office, 12 months.
For Charge 2, the charge of using a false document, 12 months.
For summary Charge 3, the offence of committing an indictable offence while on bail, one month.
The five year sentence for the charge of drug trafficking (L11394624.1 CR-20-01212) is the base sentence for the purposes of cumulation.
I make the following orders for cumulation:
Three months of the sentence for dealing in the proceeds of crime on the same indictment is to be served in cumulation upon the base sentence.
Six months of the sentence of obtaining a financial advantage by deception on the Lean Machine indictment I (J10558426.1 CR-18-02622) is to be served in cumulation upon the base sentence.
Three months of the other deception charge in relation to the Australian Tax Office (L12387376 CR-20-01565) is also to be served in cumulation on the base sentence.
In case there is a need for clarification, all other sentences are to be served concurrently on each other and concurrently with the five year base sentence. The cumulation results in a total effective sentence of six years.
I order that you serve three years before being eligible for parole.
Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to seven years and six months, with a non-parole period of four years and six months.
Presentence detention to be declared, 345 days.
There are applications by the prosecution for disposal and forfeiture orders. Is there consent?
98MR SLUCKI: Yes, Your Honour.
99HER HONOUR: Yes, thank you. I make those orders.
100Ms Spence, is there anything to be raised?
101MS SPENCE: Your Honour, just the one matter. In relation to Mr Dvir-Ovadia, as he's been sentenced to a CCO in excess of two years, a 6AAA declaration is required to be made.
102HER HONOUR: Thank you.
103The 6AAA declaration, in the case of Mr Dvir-Ovadia, it would have been a five year CCO, but for the plea of guilty.
104Now Mr Dunn, anything arising?
105MR DUNN: No thank you, Your Honour.
106HER HONOUR: Mr Slucki, anything further?
107MR SLUCKI: No, Your Honour.
108HER HONOUR: Thank you. Now, I'll leave the Bench now. To the officers in the dock, I'm prepared for the prisoner Mr Belfiore just to say goodbye to his family very briefly. Would you rather I wait on the Bench while that's done?
109PRISON OFFICER: Yes.
110MR DUNN: Thank you very much, Your Honour.
111HER HONOUR: Mr Dunn, do you want to go to the dock as well?
Adjourn the court. Thank you.]
112MR DUNN: Thank you, Your Honour.
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