Director of Public Prosecutions v La Rosa

[2018] VCC 1593

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01749
CR-17-1750

DIRECTOR OF PUBLIC PROSECUTIONS

v

SKYE LA ROSA
AHMAN LODIN

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	5-14 September 2018
DATE OF SENTENCE:	27 September 2018
CASE MAY BE CITED AS:	DPP v La Rosa
MEDIUM NEUTRAL CITATION:	[2018] VCC 1593

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward (Plea) Ms J. Cavka (Sentence)	Office of Public Prosecutions
For Accused La Rosa	Mr J. Desmond (Plea) Mr K. McLaughlin (Sentence)	Paul Vale Criminal Law
For Accused Lodin	Mr C. Thomson (Plea) In person (Sentence)	James Dowsley & Associates

HIS HONOUR: 

1Skye Cameron La Rosa, you pleaded guilty on Indictment G12075709 to five charges of obtaining financial advantage by deception; five charges of attempting to obtain financial advantage by deception; one charge of possession of identification information; one charge of obtaining property by deception; and one charge of possession of a drug of dependence.

2You were convicted by a jury of one charge of extortion with threat to injure; one charge of aggravated burglary; and one charge of theft.  Subsequent to those verdicts, you pleaded guilty to three summary offences, driving whilst disqualified; and two charges of dealing with proceeds of crime. 

3Ahmed Farhad Lodin, you were convicted by a jury of one charge of extortion with a threat to injure; one charge of cause injury intentionally; one charge of aggravated burglary; and one charge of theft. 

4Subsequent to those verdicts, you pleaded guilty to one charge of obtaining a financial advantage by deception; and one summary charge of driving whilst disqualified. 

5Turning to the facts of your offending.  The facts of offending in relation to Indictment G12075709, so far as you, La Rosa, are concerned, are set out in Exhibit A, the prosecution opening for that case.  I incorporate that document into these reasons for sentence and sentence you on the basis of the facts set out therein. 

6In very brief compass, in early-2016, you obtained possession of a driver's licence and Medicare card for one, Krystyna Kobylinski.  In April, you used those documents to hold yourself out to be Kobylinski and obtain two Optus mobile phones and services.  In June of 2106, you falsely purported to be one, Sarah Lucas, and obtained another mobile phone and service.  These three obtainings constitute Charge 1.

7Between 14 April and 1 July 2016, you attempted to obtain three further phones as Kobylinski and two further phones as Lucas.  Those applications were declined.  The five attempts constitutes Charge 2.

8Simultaneously, you made two rejected attempts to obtain American Express cards as Kobylinski and that is the basis of Charge 3.

9In May of 2016, you successfully obtained a credit card from Amex, purporting to be Lucas and this is Charge 4. 

10You made two attempts in May and July of 2016 to obtain Citicorp credit cards.  Once you purported to be Lucas and once you purported to be Christopher Beggs, your victim at your trial.  These attempts are the basis of Charge 5.

11Charge 6 relates to an attempt by you to lease a computer from Harvey Norman, purporting to be Kobylinski.  On 24 June of 2016, you leased a Holden Caprice from Budget Rent a Car, purporting to be Lucas.  You failed to return the vehicle as required and used it in the offending for which you were convicted by the jury on 19 July of 2016.  That obtaining by deception is the basis of Charge 7. 

12On 29 June, you and Lodin obtained a lease of property at Wetherill Road, Cheltenham by you, La Rosa, falsely purporting to be Kobylinski.  This is the basis of Charge against you, La Rosa, and the single charge of obtain financial advantage against you, Lodin.  Your plea, Lodin, is based on your assisting
La Rosa to obtain that lease.  The prosecution opening in relation to you is Exhibit B on your plea.  

13Charge 9 against you, La Rosa, relates to your attempting to obtain a credit card from the National Australia Bank on 13 July 2016, by falsely purporting to be a Tyson Cummings and providing false details in that application. 

14On 26 July 2016, police located 30 identification documents, listed in
Schedule E to the Indictment G12075709, at your leased premises in Cheltenham. Those documents are the basis of Charge 10, possessing identification information, contrary to s.192(c)(1) of the Crimes Act.

15On the same day, police located a small quantity of 1,4-Butanediol, GHB at those premises.  That is Charge 11.

16The police interviewed you that day and you told a series of lies about your conduct.  The Caprice, the subject of Charge 7, was of course confiscated.  Subsequently, you falsely purported to be Kobylinski again to obtain two motor vehicles by deception. 

17Charges 12 and 13 relate to you obtaining those two vehicles on 31 August 2016 and 10 September 2016. 

18Police arrested you again on 13 September and you made a series of false statements about your offending when further interviewed.  You did, however, admit making the false rental application for the Wetherill Road property. 

19Turning to the evidence relating to your jury convictions, your victim, Christopher Beggs, had been in a relationship with you, La Rosa, up until about the end of 2014.  You maintained some contact with Beggs subsequently.  In July of 2016, Beggs was living and working as a builder at a property on the Esplanade in Mornington.  On 8 July of 2016, you, La Rosa, agreed to meet Beggs at the Esplanade address.  You were then in a relationship with Lodin and you both went to that address.

20You, Lodin, told Beggs that he owed La Rosa $10,000, but you would accept $4,000 in settlement of that debt, if it was paid the next day.  One or other of you mentioned that Lodin was "affiliated", which was taken to mean associated with bikie gangs and you, La Rosa, warned Beggs not to call the police.  Beggs said that he was intimidated and agreed to pay, as demanded. 

21This was the start of an 11 day period of intimidation and extortion of Beggs. 

22The next day you, Lodin, called Beggs and told him to meet you and hand over the money.  You, La Rosa, were aware of that proposed meeting and what occurred at it.  Beggs met you, Lodin, in Stumpy Gully Road in Moorooduc.  Beggs handed over about $800.  You, Lodin, were aggrieved that that was not 4,000 and tried to urge your dog to attack him.  You then punched him to the nose, breaking his glasses and causing a cut to his nose and his nose to bleed.  A doctor who subsequently examined Beggs suspected that his nose was broken.  This conduct is the basis of the intentionally causing injury charge against you, Lodin. 

23Beggs left the scene and was subsequently seen by a witness, Jessica Baileys, to be frightened and bloodied.  You, La Rosa, texted Beggs at 3.43 pm that day, telling him to pay the rest of the invoice and apologising for what occurred that day.

24The following day, you, La Rosa, sent a series of text messages to Beggs.  He told you that he had another $400 he could give you.  You both attended at the Esplanade, Mornington address and collected that money. 

25Over the next few days, further text messages were sent from your phone,
La Rosa, to Beggs chasing money.  Beggs blocked your phone, because he was being bombarded with calls. 

26On 19 July 2016, he was at the Esplanade premises.  He had created barricades, attempting to keep both of you out of the premises.  In the afternoon, you both arrived at the premises in the previously mentioned illegally obtained Caprice.  You, Lodin, demanded Beggs open the gate, but he went back inside the premises and hid himself in a lift shaft in the house.  He rang 000 from inside the premises and went up into a roof cavity.  You both came into the house and rifled through drawers and attempted to open the lift doors, searching for Beggs.

27You then stole a phone wallet containing Beggs' driver's licence and other cards and you took a number of Beggs' power tools, put them in a cardboard box and left the premises.  You drove away in the Caprice.  As previously stated, you, La Rosa, used Beggs' details that night in an attempt to obtain credit facilities from Citicorp Proprietary Limited.  The power tools stolen from Beggs were subsequently recovered, as was Beggs' phone wallet, at your premises,
La Rosa, in Cheltenham. 

28Both of you were interviewed about these matters by police on 26 July.  You both lied to the police about your conduct.  The jury verdicts indicate that the jury rejected your versions of events beyond reasonable doubt.  The jury acquitted both of you of charges of aggravated burglary, armed robbery and intentionally causing injury, alleged to have occurred in the early hours of 9 July 2016.  I have ignored any evidence given relevant to those alleged offences in sentencing you for the matters for which you have either pleaded guilty or been found guilty.

29You both pleaded guilty to related summary offences.  Both of you drove the Caprice on 19 July 2016 and you were both disqualified from driving at the time.  On 26 July and 13 September 2016, police searched your Wetherill Road, Cheltenham address, La Rosa, and on both occasions, significant quantities of property suspected to be proceeds of crime were located, including a motorbike, iPads, computers, tools, clothing, a watch, identity documents, keys and PlayStation equipment. 

30Mr Beggs completed a victim impact statement, Exhibit C on your pleas.  He feels isolated as a result of your conduct.  He was fearful and unable to work in the Mornington area.  He has lost trust in people and has difficulty sleeping.  His self-confidence and self-worth have been damaged.  He suffers depression and lack of motivation.  I take the relevant portions of the victim impact statement into account in sentencing both of you. 

31You both admitted a prior criminal history.  Dealing with you first, La Rosa, your offending commenced in 2015 when you were aged about 34 years.  On
3 August of 2015 at Frankston Magistrates' Court, you were released on a
12 month community corrections order for offences of possessing GHB, possessing methylamphetamine, using GHB, driving exceeding the prescribed concentration of drugs, refusing a breath test, driving whilst suspended twice, theft twice, and theft of a motorbike.  You were also convicted of committing an offence on bail. 

32On 27 April 2016, you were again before the Frankston Magistrates' Court on charges of obtaining property by deception, drive whilst disqualified, failing to answer bail, possessing methylamphetamine and possessing cocaine.  You were again released on a community corrections order for 12 months. 

33The offending for which I am to sentence you occurred shortly after the imposition of that sentence.  I was informed by your counsel that you have been dealt with for breach of that community corrections order by the further offending. 

34Turning to your history, Lodin, you have a lengthy and significant criminal history.  You have numerous prior convictions for driving whilst suspended or disqualified.  I counted 25.  In 2005, you were first convicted of theft.  You have a poor driving record and have prior offences, including reckless conduct endangering serious injury and dangerous driving. 

35In December 2005, you were fined $2,500 for unlawful assault, behaving in an offensive manner and indecent language. 

36In 2006, you received a community corrections order for offences of making a threat to kill, intentionally threatening serious injury.  You subsequently breached that community corrections order and were imprisoned for six months. 

37In 2008, you were sentenced to 12 months' imprisonment for armed robbery, affray and common assault. 

38In 2010, you were sentenced to a suspended term of imprisonment for offences of trafficking in cannabis, possession of cannabis.  You breached that suspended sentence by further offending in 2011. 

39In October 2012, you received another suspended sentence for criminal damage, attempted theft and going equipped to steal. 

40In 2014, you were again imprisoned and fined for numerous traffic and driving offences, possession of a controlled weapon and failing to answer bail. 

41You breached suspended sentences and in 2016, that is, on 16 June 2016, sentenced to a drug treatment order.  On the same day, you were sentenced to a two year term of imprisonment, to be served by way of a drug treatment order, for offences of theft of motorcar, prohibited person possessing a firearm, possessing an imitation firearm, possessing a prohibited weapon, possess methylamphetamine, trafficking a drug of dependence, trafficking methylamphetamine, two charges of deal with proceeds of crime, burglary and theft. 

42About a month later, you committed the offences for which I am to sentence you. 

43Turning to the personal circumstances of each of you and starting with you first, La Rosa. 

44You are now 38 years of age, being born in Melbourne on 20 February 1980.  Your parents separated when you were an infant.  You lived with your mother until Year 7 level at school.  At that time, you moved to Brisbane to live with your father.  You were educated to Year 12 level and you then returned to Melbourne.  You were employed in a pharmacy for ten years and undertook beautician courses at TAFE.  At the time of your offending, you had been working in a pet shop for nearly 12 months.  Since your arrest, you had worked as a customer service operator in a mailing company on a part-time basis until you were taken into custody. 

45You have three children, two now 11 and nine, the product of a nine year relationship that ended apparently amicably.  You subsequently started using ice and amphetamines.  When your relationship with Mr Beggs terminated, your habits increased.  Your short relationship with your co-accused, Lodin, saw you give birth to your third child, now 14 months old. 

46Your counsel told me that that relationship terminated with intervention orders and bitterness.  Your elder children reside with their father and your youngest with your mother, here in court today.  You enjoy the strong support of your mother, who as I say, is here today and attended during the course of your trial. 

47You have apparently resolved to rid your life of illicit drug use.  Exhibit LR1 is a bundle of clean drug screens taken this year.  Apparently you relapsed in June this year when you returned a dirty sample positive for methamphetamine.  You were remanded three days later. 

48The DHS report in Exhibit LR2, they report that you are highly motivated to achieve meaningful change in your life.  You are committed to your infant child and engage with a psychologist.  That psychologist, Jane Fisicaro, reports in Exhibit LR3 that you are keen to remain drug-free and to care for your child. 

49You have engaged in counselling, focussing on recognising and maintaining triggers and cravings and addressing relapse prevention.  You are said to be committed to maintaining change to your lifestyle.  Since being in custody, have used your time well, completing a number of courses, certificates tendered as Exhibit LR4.  They include Coping With Change program, Managing Emotions program and a six-hour ice effects program. 

50References tendered as Exhibit LR5 and 6, attest to your commitment to change and the support you enjoy from family and friends.  Your step-father outlines how your life changed a few years ago and the damage ice caused you.  You became a criminal.  Your subsequently rehabilitation saw you give up drugs, start a business, find a stable supportive relationship and you are said to have turned your life around.  I accept that your prospects for future rehabilitation are good, so long as you remain drug-free. 

51You prior criminal history is consistent with someone going off the rails because of drugs and I take your future prospects into account in sentencing you.

52I also take into account your pleas of guilty to the fraud offences and to the three summary offences.  Those pleas have significantly utilitarian value and have saved the community the cost of what would have been a complicated trial.  You are entitled to and shall receive a reduction to the sentence you would otherwise receive to reflect those pleas of guilty and I will return to the effect of that reduction subsequently. 

53Your fraud offending was significant, protracted and serious.  You have relevant prior convictions and were on a community corrections order for fraud at the time you offended.  The maximum penalties for each of your offences demonstrate the seriousness of your conduct.  The matters for which you were convicted by the jury are also significant criminal offences.  Your aggravated burglary offending falls at the lower end of offences of that kind, however your extortion offence was protracted and serious.  I regard it as a mid to upper-mid level example of the offence of extortion. 

54Turning to you, Lodin. 

55You are now 32 years of age, being born on 1 October 1985.  Your parents fled Afghanistan in the early-1980s.  You were born in Pakistan and came to Australia at the age of two.  You were the eldest of four children, educated to HSC level at Sandringham Secondary School, then you worked as a salesman at Energy Australia. 

56In your teens you started getting into trouble.  You abused cannabis and alcohol, you trafficked drugs and developed an ice habit.  You amassed significant prior convictions.  Since 2016, you have improved your life.  I was told that the drug treatment order imposed in June 2016 has had some success.  Exhibit LR2, the Drugs Court graduation report, states:

"Mr Lodin has demonstrated control over his substance use throughout the term of the order, evidenced by his persistent clean testing outcomes.  
Mr Lodin has shown willingness and motivation to address his drug issues.  Mr Lodin has worked willingly with his drug and alcohol counsellor to develop insight into influences for substance dependency and has been able to maintain strategies he has employed for control over his dependency.  Mr Lodin has frequently reported his efforts to distance himself from negative pro-criminal peers."

57The report is positive as to your prospects for rehabilitation and significantly, save for a minor cannabis charge, you have had no offending for two years.  You will need to maintain that attitude whilst you are in custody. 

58You were residing with your parents in Narre Warren prior to your remand and have established a mechanic shop with financial assistance from your father.  You have started a new relationship with a young woman of apparently good character.  She is pregnant with your child. 

59I am told that have shown care and responsibility for your daughter with
La Rosa, having completed an eight-week behaviour change program to enhance your role as a partner and a father. 

60I accept that you have reasonable prospects for the future, despite your extensive history.  It is unfortunate that much of your recent good work will be imperilled by your return to custody.  I have given significant weight to your rehabilitative efforts. 

61I was informed that you both offered to plead guilty to, effectively, the charges upon which you were convicted by the jury prior to the commencement of the trial.  I take that fact into account, even though you  clearly are not entitled to the discount in sentencing that attaches to a plea of guilty.

62I do take into account that you, Lodin, pleaded guilty to the one charge of obtaining a financial advantage by deception and the summary charge of driving whilst disqualified.  You, like La Rosa, are entitled to and shall receive a reduction in sentence to reflect those pleas of guilty.

63Your driving without disqualified offence is serious, given that you have over 20 prior instances for that offence.  Your offending is serious.  Clearly nothing other than terms of imprisonment are appropriate.  Principles of general deterrence and denunciation are clearly the predominant sentencing considerations in relation to both of you. 

64As I indicate, your aggravated burglary offence is, in my view, a lower level example of that offence, but your extortion offence is serious.  Your infliction of injury, Lodin, onto Beggs, represents a serious example of that offence.  You gratuitously punched him in the face as part of your ongoing extortion offence.  I have been careful to avoid double punishment, as there is a clear connection between your extortion offence and your infliction of injury upon Beggs. 

65In relation to each of you, the maximum penalty set down by Parliament for your offending demonstrate the seriousness for which your conduct is to be viewed.  The High Court has recently explained the importance of sentencing judges paying due regard to maximum penalties.  Clearly issues of totality of sentence are significant for both of you. 

66So far as you, La Rosa's offending is concerned, on Indictment G12075709,
I propose to impose an aggregate sentence on all matters, except the charge of possession of GHB.  Your offending was a course of conduct over five months involving fraudulent conduct of a similar type.  You employed false identities to benefit yourself and attempted to do so with mobile phones and credit cards. 

67On that indictment, would you stand up please. 

68On Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13, you are sentenced to an aggregate term of imprisonment of two years. 

69If I were to impose individual sentences, which I am not, it is an aggregate sentence, I would sentence you to a term of imprisonment in respect of Charge 1, 2, 3, of six months on each; Charge 4, nine months would be the base sentence; six months on the remainder of the charges, 5, 6, 7, 8, 9, 10, 12 and 13; and I would cumulate one month on the base charge, arriving at the same sentence I have imposed as an aggregate sentence.  I make that indication, not necessarily for your benefit, but for clarity of others.

70On Charge 11, the charge of possessing a drug of dependence, you are fined $200. 

71On Indictment C1611014A, the Charge 1, extortion, you are sentenced to be imprisoned for two years. 

72On Charge 6, aggravated burglary, you are sentenced to be imprisoned for two years.

73On Charge 7, theft, you are sentenced to be imprisoned for 12 months. 

74On the summary offence of Charge 5 of driving whilst disqualified, you are sentenced to be imprisoned for one month. 

75On the Summary Offences 4 and 11, the two charges of dealing with proceeds of crime, you are sentenced to an aggregate term of imprisonment of six months. 

76Having regard to principles of totality, I order that on Indictment C1611014A,
12 months of the sentence imposed on Charge 6 and six months of the sentence imposed on Charge 7, be served cumulatively upon the sentence imposed on Charge 1, the base sentence. 

77That is an effective term of imprisonment of three years and six months on that indictment. 

78I order that 12 months of the sentence imposed on Indictment C16110144 and three months of the Summary Offences 4 and 11, be served cumulatively on the sentence imposed in Indictment C16110144. 

79That is an effective term of imprisonment of four years and nine months and
I order that you serve three years of that sentence before being eligible for parole. 

80What is the PSD?  Eighty days or something, is it?

81MS CAVKA:  Yes, Your Honour. 

82HIS HONOUR:  I declare that 80 days, not including today, of that sentence as already been served by way of pre-sentence detention.

83You can have a seat.

84Turning to you, Lodin.  On Indictment G12075786, the one charge of obtaining a financial advantage by deception, you are sentenced to be imprisoned for six months.

85On Indictment C1611014A, on Charge 1, extortion, you are sentenced to be imprisoned for two years.

86On Charge 5, intentionally cause injury, you are sentenced to be imprisoned for 12 months.

87On Charge 6, aggravated burglary, you are sentenced to be imprisoned for two years.

88On Charge 7, theft, you are sentenced to be imprisoned for 12 months.

89On the summary charge of drive whilst disqualified, you are sentenced to be imprisoned for 12 months. 

90In respect of Indictment C1611014A, I order that 12 months of the sentence imposed on Charge 6; six months of the sentence on each of the Charges 5 and 7, be served cumulatively upon the base sentence imposed on Charge 1. 

91That is an effective sentence of four years in respect of that indictment. 

92I order that three months of the sentence imposed on Indictment G12075786, the fraud indictment; and three months of the sentence imposed on the summary offence of drive whilst disqualified, be served cumulatively upon the sentence imposed in Indictment C161104A. 

93That is a total effective sentence of four years and six months.

94I order that you serve three years of that sentence before being eligible for parole.

95What have I got for PSD for him?  

96MS CAVKA:  Fourteen days.

97HIS HONOUR:  Fourteen.  I declare 14 days of the sentence I have just imposed, not including today, as already been served by way of pre-sentence detention. 

98I make the disposal orders and identity - you can have a seat too - identity crime certificates sought by the prosecution.

99Pursuant to s.6AAA of the Crimes Act, I declare that in respect of you, La Rosa, but for your pleas of guilty, I would have imposed a term of imprisonment of three years in respect of Indictment G12075709 and a term of imprisonment of 12 months in respect of the summary offences. 

100In respect of you, Lodin, but for your plea of guilty to Indictment G.12075786,
I would have imposed a term of imprisonment of nine months and in respect of the summary offence of drive whilst disqualified, a term of imprisonment of
16 months. 

101Are there any other orders required?

102MS CAVKA:  No, Your Honour. 

103HIS HONOUR:  Would you remove the prisoners please. 

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