Director of Public Prosecutions v Larosa

[2017] VCC 195

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00055

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL JOHN LAROSA

---

JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2017
CASE MAY BE CITED AS:	DPP v Larosa
MEDIUM NEUTRAL CITATION:	[2017] VCC 195

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Skoblar	Office of Public Prosecutions
For the Accused	Mr D. Care

HIS HONOUR:

1Daniel John Larosa, you have pleaded guilty to one charge of dishonesty obtaining a financial advantage by deception from a commonwealth entity and one charge of attempting to dishonesty obtain a financial advantage by deception from a commonwealth entity.

2The facts of the matters are set out in the prosecution opening, Exhibit 1.  They are not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its full factual context.  The facts are briefly set out in paragraph 2 of the opening and that reads:

"The counts on that indictment relate to Daniel John Larosa falsely amending importation documents in the course of his position as a nominee Customs broker in order to create funds to which he was not entitled from the Australian Customs and Border Protection Service". 

3Count 1, which has the operating dates of 25/03/08 to 08/10/14 relates to the accused making 318 applications for refunds of duty and being paid $728,188.93 in duty to which he was not entitled.  You did this by making amendments to full import declarations by applying tariff concession orders or amending other data on FIDs to obtain the funds.

4Count 2, which has a date of 13/08/14 relates to you submitting one amended FID containing false information which application for duty funds was rejected and in respect of which you would have been paid $23,021.85 had it been accepted.

5You have no other criminal history.  There is no victim impact statement. 
This was persistent and sustained offending.  It was an abuse of position and breach of trust.  It involved the use of innocent agents.  It involved planning and organisation.  It only ceased on detection.  Your motivation was financial. 
You had overreached yourself financially and to maintain a certain lifestyle for yourself and your family you committed these offences.  Once you began you could not stop. 

6The money involved is a significant amount of money.  After hearing submissions from both the prosecution and your counsel I take into account:

7(1) Your early plea of guilty.  It has the effect that there is no trial which saves the community the cost of a trial and witnesses appearing at court.  It is also a demonstration of an acceptance of responsibility by you for your offending and goes to the issue of remorse. 

8(2) Your age. 

9(3) The mental health issues which according to the tendered report will likely make your time in custody more onerous. 

10(4) Whilst in custody you will be concerned about your family.  Your wife has health issues.  Your eldest daughter is studying law and your son as had some difficulties himself.  It is more than likely that the family home will be lost. 

11(5) Your otherwise good character although such good character is often used in these type of cases so as to enable the offending to be committed. 

12(6) In my view you are unlikely to re-offended. 

13(7) The delay in the matter, although not really out of the order, has meant that it has been hanging over your head.  Fortunately you have used this time to establish a new business which, hopefully, will be available to you upon your release.  I have a reference from your business partner. 

14(8) You have lost your Custom broker's license. 

15(9) You have shown remorse by way of complete admissions to the authorities.  You cooperated with them.  You sent an apology to the company concerned and gave evidence to the relevant licensing committee.  

16(10) Your personal health issue. I refer to the report of Patrick Newton dated
24 November 2016 that sets out your personal background.  There is an issue of sexual abuse upon you whilst you were a ten year old.  Otherwise your family was normal. 

17You went to Parade College.  You finished your Year 12, you got a good result and thereafter commenced working.  You have been in a relationship with your wife since 1984 and there are two children of the marriage.  Understandably the offending here has caused your wife some difficulties about the relationship but I am told that it will continue.  She was unaware of your offending and she was shocked and disappointed when you disclosed it to her.

18The report sets out some emotional disturbances for you when various relatives died and health issues in the family.  You told the psychologist about your motivation for the offending and that it was an attempt to manage severe financial stresses and also you had a family to support.

19He concludes you are a socially withdrawn man and who suffered long term depression symptoms.  Your experience of depressive mood disturbances,
Mr Newton says, pre-dates your illegal involvement by many years and you have been prone to depressive mood disturbance since the abuse you suffered as a youth.  He said that your symptoms are sufficiently severe to meet a diagnosis of persistent depressive disorder.  He said this a condition of relatively mild clinical condition. 

20He said you have normal intellectual functioning.  You do not suffer from any personality disorder.  You do not have an anti-social of psychopathic personality.  He says that your depressive symptoms are more likely to render your time in custody more onerous than that of a person not afflicted with such a pre-existing condition.  I accept that but place upon it the limitations that
I made to counsel during the outline of the plea.  Hence it has a limited role in my sentencing decision.

21(11) In my view, you have good prospects of rehabilitation. 

22(12) Your motivation for offending. Apart from it explaining your thinking and why you became involved, in my view there is little mitigation in your explanation of why you offended.  You had other alternatives available to you.  Many people cope with sick family members and financial problems, personal problems without resorting to crime.

23(13) You have agreed to the reparation order and have paid $1000 towards it. 
To this point, an insignificant sum but it's an indication of a desire to repay.

24Both counsel referred me to tables of comparative cases and some reports and I have considered that material.  I have considered all the submissions made by counsel.  I have considered the principle set out in s.16 of the Crimes Act (Cth). 

25Because the two counts reflect one course of conduct, in my view the sentences should be made concurrent.

26The basic purposes for which a court may impose a sentence of punishment, general deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstance and the consequences for the victim.

27I am required to balance the interests of the community in denouncing criminal conduct in the interests of the community seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.  I have already expressed my denunciation of your behaviour.

28Taking into account all those matters and doing the best I can, the starting date of the sentences I am about to impose is today, which is 6 March 2017. 

29On Charge 1, I sentence you to a term of imprisonment of four years.

30On Charge 2, a term of imprisonment of 12 months.

31The starting date for both is today's date, which means they run concurrently.  You are to serve a period of two years before being eligible for parole.  Thus making an effective sentence of four years with a non-parole period of two years.  I declare the time of four days you have already served to be part of the term of imprisonment I have just imposed.

32Pursuant to s.6AAA of the Sentencing Act, if you had proceeded to trial and you were convicted by a jury of these charges you would have received a sentence of at least six years with a non-parole period of four years.  Are there any orders I need to make?

33MS SKOBLAR:  Your Honour, only the order for reparation.

34HIS HONOUR:  Yes.  Have I signed that or not?  No.

35MS SKOBLAR:  No it's an oral order, Your Honour.

36HIS HONOUR:  Yes.

37MS SKOBLAR:  So reparation in the sum of $727,188.93 to the ‑ ‑ ‑ 

38HIS HONOUR:  Have you got that there for me to read out or ‑ ‑ ‑ 

39MS SKOBLAR:  I'll write that down for you.

40HIS HONOUR:  No, no just give me the amount again.

41MS SKOBLAR:  It is $727,188.93.

42HIS HONOUR:  Payable to whom?

43MS SKOBLAR:  To the Commonwealth - to Australia Border Force.

44HIS HONOUR:  Do you agree with that amount?

45MR CARE:  Yes, Your Honour.

46HIS HONOUR:  Thank you.  I make an order for reparation in the amount of $727,188.93 payable to the Australian Border Force.  Any other matters?

47MS SKOBLAR:  No, Your Honour.

48MR CARE:  No, Your Honour.

49HIS HONOUR:  Yes, you can take Mr Larosa out, thank you.

50TIPSTAFF:  Yes, Your Honour.

51HIS HONOUR:  We'll adjourn the court briefly until I start the next matter, thank you.

- - -