Director of Public Prosecutions v Tupou

[2018] VCC 603

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00494

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALOISIO TUPOU
DESPINA FIGLIOLA

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2018
CASE MAY BE CITED AS:	DPP v TUPOU
MEDIUM NEUTRAL CITATION:	[2018] VCC 603

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata
For Accused TUPOU	Mr R. Nathwani
For Accused DESPINA	Mr R. Gibson

HER HONOUR:

1Aloisio Tupou, you have pleaded on indictment to extortion with a threat to kill occurring on 19 December 2015, and a charge of theft which occurred between 29 December 2015 and now, 20 January 2016.  The extortion charge carries a maximum of 15 years imprisonment and the charge of theft a maximum of 10 years imprisonment. 

2Despina Figliola, you have pleaded guilty to a single charge of theft which occurred between 29 December 2015 and 20 January 2016.  As previously announced, the charge of theft carries a maximum of 10 years imprisonment.  These penalties reflect the seriousness with which Parliament regards these offences. 

3The circumstances of your offending is set out in a document entitled "Summary of Prosecution Opening" dated 12 September 2017, and subsequently amended in relation to paragraph 7 and 15.  It is marked as Exhibit P1.  I understand that apart from a few minor matters disputed by you, Figliola, that the summary of prosecution opening is otherwise an agreed document.

4In short compass, each of you were in a relationship with each other at the relevant time.  The complainant, Frederico de Mauro was known to you, Figliola, as you socialised together regularly.  The complainant was a builder and in early 2014, decided to build a day spa as an investment project, planning to start with one spa and then expand into a franchise.  You, Figliola, expressed an interest in the business and agreed to provide $25,000 as a loan for an initial investment.  On or about 28 March 2014, you, Figliola, met with the complainant and signed a contract for the provision of $25,000 as a loan.  The terms included the repayment of $40,000 in total, within a period of some six to eighteen months.  The spa business was built, established and began operating. 

5After some three to four months, you, Figliola, contacted the complainant wanting your investment monies returned.  It was not known to you at this time that the complainant had already on-sold the business.  This request by you was obviously ahead of the contracted timeframe for the return of the monies.  You told the complainant that in those circumstances, you were content just to be repaid your initial $25,000 investment.  The complainant explained to you that he did not have ready access to such a sum and that he would need time to sell the business, pay outstanding builders and contractors so that you could be repaid.  As I have already referred, the complainant had in fact already on-sold the spa business.

6Sometime later in August of 2015, you, Figliola, again telephoned the complainant. 

7On 11 November 2015, you, Mr Tupou, visited the complainant's home.  He was not at home.  The complainant's father was able to advise you of this fact and close the front door. 

8Some five minutes later, you, Figliola knocked on the complainant’s front door when it was again answered by the complainant's father.  You requested to speak to the complainant and were unable to do so.  After learning of your visit, the complainant tried to contact you that same afternoon.  He texted you, Figliola, with a message that was concerned about your visit to his parents' house and indicating that he would transfer the money to you the following day.  He then sent to your email a “Private General Release and Settlement Agreement”, designed to avoid any further action once the amount of $25,000 was repaid. 

9On 17 November 2015, you, Figliola, sent the complainant a message trying to arrange a time to meet to resolve the situation.  An arrangement was made to meet at the Pancake Parlour in Doncaster at 9.45 pm on 19 November 2015.  Given the public setting and content of the communications in the lead up to this meeting, I find nothing sinister in the timing of it.  The arranged meeting took place.  When the complainant arrived at the carpark, he noticed a man sitting alone in an old model blue Toyota Camry in the same carpark.  At the main door to the restaurant he met with you, Figliola, who greeted him with the words "I'm pissed off".  You, Figliola, spoke to Mr de Mauro about the need for you to be repaid.  The complainant told you that he would pay you the money without interest.

10After approximately five minutes you, Tupou, approached Figliola and de Mauro at the booth and sat next to the complainant.  I am told that you sat very close indeed.  You immediately asked "Where's her fucken money?  You dog low life scum".  You repeatedly displayed the original contract and the Private General Release and Settlement Agreement, which the complainant had emailed to Figliola.  You, Tupou, put the documents in the complainant's face and said "This shit doesn't mean nothing".  You also asked the complainant about what he owned, to which he replied that there are a few cars and a little money.  You, Tupou, then announced that you were all going to the complainant's house immediately.  There was a conversation about what could be used as security for the debt owed to Figliola.  The complainant's Ford ute and watches were raised in this regard.

11On leaving the Pancake Parlour, you, Tupou, demanded the complainant's keys, phone and wallet in an aggressive manner, stating that there will be a big problem if there was no compliance.  You handed the complainant his keys back, announcing that you will travel with him in his car and directed Figliola to follow you to the complainant's premises.  On the way to the complainant's premises, you, Tupou, reiterated to the complainant that he could pay the first $10,000 owed to Figliola the following week, with the balance to follow within three to four weeks.  You told the complainant that if he did not return the money, he would be going for a trip in a car boot and he will be six foot under.  It is this threat on 19 November 2015, that encompasses Charge 1 against you, extortion with threat to kill.

12You then arrived at the complainant's premises at approximately 11.30 pm.  Figliola arrived shortly thereafter.  There was an unknown man present who asked you Tupou "How did it go?" before turning to the complainant and asking "Where's the money?".  The unknown man went with the complainant into his premises where various conversations are referred to in the Crown opening.  These conversations and exchanges are not relevant to any of the charges against either of you and neither of you is said to be present for those conversations.  During these conversations, however, there were further discussions between the unknown man and the complainant as to the monies owed to Figliola.  Each of you remained outside the premises whilst these discussions took place.

13Once the conversations between the complainant and the unknown man had been completed, the complainant left his premises and handed you, Tupou, the keys to his 2008 FG Ford XR6 Utility.  You, Tupou, told the complainant to reverse the ute from the nature strip and remove anything that he needed from the car.  At this time, you, Figliola, were in your own car out the front of the premises.  The complainant asked you, Tupou, not to sell his things.  You and the unknown man told him that if he paid the money to Figliola, he would get his things back and would not be going for a trip in the car boot. 

14On 23 November 2015, the complainant transferred $10,000 into Figliola's bank account.  On 16 December of 2015, the complainant reported the matter to police.  On 26 December 2015, the complainant transferred a further $13,000 into Figliola's account, with the remaining $2,000 being deposited into the same account on 29 December 2015.  The police executed a search warrant at your address Tupou on 20 January 2016, in which time they located the complainant's Ford Utility taken on 19 November 2015.  They also located a watch, which belonged to the complainant which had also been taken on
19 November 2015.  As such, the theft charge that you face particularises both the complainant's Ford Utility and his silver Haemmer watch. 

15A victim impact statement signed by the complainant was tendered and is exhibited at P2.  I have recourse to the contents of this document.  He has been effected psychologically which he primarily associated with the circumstances around the extortion charge.  I accept the comments of Mr de Mauro in his victim impact statement that:

"It is a shame that people cannot discuss things as normal, instead of resourcing to violence".

16I note that the prosecution also properly raised that in relation to the theft of
Mr de Mauro's vehicle, that he was without access to that car between
19 November 2015 until its return on or about 20 January 2016. I have no information as to how this impacted on his day to day wellbeing. The theft charge to which each of you have pleaded guilty is based on s.73(4) of the Crimes Act 1958 in that each of you appropriated the property of the complainant by your assumption of the rights of an owner, in that you kept it and dealt with it as owners, once the debt owed by the complainant had been repaid to Figliola in total by 29 December 2015. The between dates charge will affect the period from this point in time, until the property was located by police.

Aloisio Tupou

17You, Tupou, were arrested and interviewed by police on 20 January 2016.  As is your right, you gave a no comment record of interview. 

18I am told, and accept, that your decision to be involved in this offending was largely due to your relationship with your co-accused, Figliola.  At the time of your offending, you were only 26 years of age and were in a relationship with Ms Figliola who is some twenty-three years your senior.

19Your decision to become involved was largely as a result of what was described as “misplaced loyalty” to her and a belief that you are acting in her interests.  This of course sets a context to your offending, but does not excuse it.  The extortion charge is based on representations made on the single day to which I have referred.  It did not involve the use of weapons or actual violence or threats to other family members.  The theft charge is put on the basis to which I have already referred. 

20I accept that your offending could be accurately described as relatively unsophisticated and towards the lower end of the scale for its type.  It is an aggravating feature of your offending that occurred in breach of a community corrections order imposed on you by the Broadmeadows Magistrates' Court on 24 June 2015, in relation to largely dishonesty offending.  I have taken into account matters personal to you raised by your counsel in detailed written and oral submissions.  These include, you are now 28 years of age and are no longer in a relationship with your co-accused.  You have been in a stable relationship with Maria Magsombol for a period of some eleven to twelve months.  You are in fulltime employment and have been so since bailed in relation to these matters on 10 October 2016. 

21In 2010, you had the misfortune to be the victim of a serious assault, which damaged nerves on the right hand side of your face.  This impacted on your mental health and led to some resort to drug use.  The drug use provides some context for the offending that was dealt with at Broadmeadows Magistrates' Court in June of 2015.  I am told that you have been drug free since November of 2016.  A medical report dated 20 April 2018 and authored by Dr Wally Hosn, was tendered and confirms that as a direct result of the assault upon you, you had physical injuries as well as depression, anxiety, adjustment disorder and social phobia.

22I accept that you have pleaded guilty at a relatively early opportunity.  Your matters had been listed for trial in November of 2017, but were not reached at that time.  This allowed the opportunity for further discussions between your legal representatives and those for the Crown and led to the formulation of the plea indictment, to which you have now pleaded guilty.  I accept that your plea of guilty is one which has utilitarian value and has saved court time and expense.

23On the materials before me, I also accept that your plea of guilty is one of remorse.  I have had recourse to references tendered on your behalf from your partner and from a close family friend Dale Aitken, which supports the submission that you are remorseful for your offending and have very much moved on with your life in a positive way since these events.  I note that these events occurred late 2015, early into 2016 and it is over two years since you have been involved in any criminal activity.

24As a direct result of your offending, you were remanded in custody for a period between 20 January 2016, until bailed on 10 October 2016.  I accept that his period of time in custody has acted, in your case, as both a sanction and a deterrent.  Indeed, since your release from custody, I am told you have abstained from drug use, obtained fulltime employment, continued in a stable relationship with stable family supports, have sought effective assistance for mental health difficulties arising from the assault upon you in 2010 and have successfully completed what was a two year community corrections order, imposed on you by Broadmeadows Magistrates' Court in June of 2015.

Despine Figliola

25Tendered on your behalf was an order completion report dated 18 April 2018, which confirms that you were discharged from the community corrections order as it had been satisfactorily completed.  I accept the submission that as you appear before this court, you present as a more mature and stable person than the person who committed the offences to which you have pleaded guilty.

26You, Figliola, were arrested and interviewed by police on 4 February 2016 and largely made a no comment record of interview. 

27I am told that your resort to offending largely came about at your continued frustration at not being paid the monies owed to you by the complainant.  This does set the context for your offending, but likewise, does not excuse it.  It is clear you had other options, legal options, other than the ones you chose to undertake.  This comment is made in the full appreciation that you have pleaded guilty to a between dates charge of theft of the complainant's ute only, in circumstances where you retained that vehicle past the point in time at which the monies owed to you had been repaid.

28I am told that the vehicle was returned to its rightful owner and in an undamaged state.  Your offending was also relatively unsophisticated and notably relatively short lived. 

29I have taken into account matters personal to you and raised on your behalf through detailed written and oral submissions.  In brief compass, these include you are now 52 years of age, you grew up in Melbourne and completed a Year 12 education in Kew High School.  You were married, but divorced in 2011.  There were three children from that marriage who upon your separation from their father, resided with you.  You received little monies from any property settlement post-divorce.  You receive no child support from the father of your children and this has left you in very uncomfortable financial circumstances.

30Your children are now aged 21 (James), 19 (Matthew) and 17 years (Jennifer).  I am told also that you have a regular and constant work history and are currently employed by Beacon Lighting where you have worked for some three to four years.  You have no prior matters, nor anything which has arisen since the offending before this court.  I accept in all the circumstances that you have also pleaded guilty at a reasonable opportunity.  I accept that your plea of guilty is one which has utilitarian value and has saved court time and expense.  It does bear representation of remorse.

31I have also had recourse to character references tendered on your behalf, written by your current employer Chris Stavridis and by Carl Bacash.  These documents are exhibited at F2.  The authors of each of these references describe you as being ashamed and regretful for your offending behaviour.  Those references in combination with your lack of prior history and no further matters having arisen since, would indicate that the offending behaviour before this court, was particular to its circumstances and could be accurately described as out of character.

32It was argued on your behalf that you would be a suitable candidate for an adjourned undertaking.  It was further suggested that any such undertaking could be imposed without conviction being recorded.  I am not satisfied that an adjourned undertaking would properly reflect the seriousness of this matter.  The retention of the ute was effectively a security for debt owed to you, but held beyond the time from which this debt had been redressed.  I view your offending as equally serious as that of Mr Tupou, where there is that commonality in the offending. 

Sentence

33I do make the ancillary orders as sought. 

34The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing each of you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

35I am also required to balance the interest of the community in denouncing criminal conduct, with the interest of the community, in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.  In relation to each of you, I am satisfied that there is a limited need in all the circumstances to protect the community from you.  I also accept that there is limited need for specific deterrence, given Ms Figliola's lack of history and the efforts that Mr Tupou has made to rehabilitate.

36There does remain a need for some weight to be given to general deterrence, denunciation and punishment.  I am satisfied that each of you present with good, if not excellent, prospects for rehabilitation.  I have had each of you assessed as to your suitability for a community corrections order and each of you has been assessed as suitable.  It does not appear to me that either of you require supervision or rehabilitative components in such an order.

37In relation to you Mr Tupou, if you could please stand.

38For Charge 1, you are convicted and sentenced to eight months imprisonment.  I reckon 265 days as time already served, pursuant to this sentence.  In relation to Charge 2, that of theft, you are convicted and sentenced to a community corrections order for a period of fifteen months.  I am satisfied that you do not require a treatment component as I have already outlined, therefore during that fifteen month period, you are to complete 150 hours of community work.  I can only place you on that order if you are prepared to sign a document to that effect.  Are you prepared to do so?

39OFFENDER TUPOU:  Yes, Your Honour.

40HER HONOUR: That has standard conditions which will be referred to in that document and I am confident your counsel can take you through it. Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of twelve months, with a community corrections order of some eighteen months duration.  You can be seated sir.

41In relation to Ms Figliola, an argument was raised on your behalf that I should consider placing you an adjourned undertaking.  As already outlined, I see no real basis to distinguish your offending as it relates to the charge of theft, from that of Mr Tupou.  Indeed, it is probably you, if not definitely you, that orchestrated his involvement in that theft charge and it was the debt that was owed to you that led to that offending.

42What should be properly reflected is the fact that you do have no priors and nothing since.  In addition Mr Tupou was charged with the additional theft of the watch and his offending was in breach of a community corrections order.  As such, I place you on a community corrections order for a period of thirteen months and during that period, you are to complete 130 hours of community work.  I can only do that if you are prepared to sign an order to that effect.  Are you prepared to do so?

43OFFENDER FIGLIOLA:  Yes, Your Honour.

44HER HONOUR: Very well. You can be seated. Argument was made before me as to whether or not a conviction should be recorded for your offending. I have had regard to the provisions of s.8 of the Sentencing Act 1991, which requires me to consider all the circumstances of the case, including the nature of the offence, your character and past history, and the impact of recording a conviction on your economic or social wellbeing or your employment prospects.

45I also bear in mind that the recording of a criminal conviction is a significant act of legal censure. The requirements to consider the provisions of s.8 are what amounts to a balancing exercise. I accept that the nature of the offence whilst one of dishonestly, was effectively a first offence and of a relatively low level nature. I accept that there were contributing circumstances and it could accurately describe as a “one-off”, as I have so described. I also accept that for you, there has been some sanction in being involved in the legal process and that you are unlikely to return before the courts.

46Your character and past history are also to your credit.  Whilst I have no clear evidence before me as to the effects of recording a conviction on your economic and social wellbeing, I note that you have been with the same employer for some three to four years.  I do accept that the recording of a conviction for dishonesty is undesirable for somebody who works in the retail trade and intend to remain part of the retail trade.

47As part of your plea, I was advised that you have recently sought a position with a different company in retail and today was tendered a number of ads in the retail industry, which confirmed that should you be shortlisted, a police check would be undertaken.  I accept in general terms that the recording of a conviction would be limiting to you, in that context.  So on balance, the community corrections order that I have imposed will be without conviction.

48MR GIBSON:  As Your Honour pleases.

49MR NATHWANI:  As Your Honour pleases.

50HER HONOUR:  Thank you.  The documents need to be completed by my associate which she will undertake now.  In her many skills of multitasking, I have a judicial monitoring now that I am just going to deal with very quickly.  Each of you are able to remain whilst that takes place.

51MR HARDJADIBRATA: There's the s.6AAA discount in respect to Ms Figliola.

52HER HONOUR:  Not required where there is not a term of imprisonment or a community corrections order of in excess of two years.  You can double check that. 

53MR HARDJADIBRATA:  Yes.

54HER HONOUR:  You will have the opportunity to do so.

55MR HARDJADIBRATA:  Yes, thank you. 

‑ ‑ ‑