R v Lasalo

[2021] NSWDC 109

District Court

New South Wales

Medium Neutral Citation:

R v Lasalo [2021] NSWDC 109

Hearing dates:

4 February 2021

Date of orders:

4 February 2021

Decision date:

04 February 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed one of 18 months imprisonment to be served by way of Intensive Corrections Order.

Catchwords:

CRIME — Complicity — Conspiracy

CRIME — Violent offences — Aggravated robbery — In company

Legislation Cited:

Crimes (Sentencing Procedure) Act, ss 3A, 10, 73A(2)

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Puluno Lasalo (Offender)

Representation:

Counsel:
Mr J Chin (Crown)
Mr B Longville (Offender)

Solicitors:

File Number(s):

2019/00384079

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to an offence that between 4 December 2019 and 6 December 2019 at Sydney he conspired to rob Newman Li of certain property, being Australian currency and prohibited drugs, whilst in company with a Brendon Edralin, a Karim Sultan and a Christopher Touma. The penalty for a common law conspiracy charge is at large. The maximum penalty for a robbery in company offence is 20 years’ imprisonment and the general principle is that the maximum penalty for the substantive offence when sentencing for conspiracy is to be used as a yardstick or guidepost.

The Facts

2. The facts are agreed and the following is taken from the agreed facts. The co‑offenders are a Brendon Edralin, who has already been sentenced, and I will refer to that a little later; a Karim Sultan, who I understand is to be sentenced later in the year; a Christopher Touma; a Dora Zabu and a Desiree Enriquez. Zabu is Karim Sultan’s girlfriend and Enriquez is Edralin’s girlfriend.

3. As a result of an unrelated investigation, police were lawfully intercepting the co‑offender Sultan’s mobile phone and as I understand it, that is how the police became aware of the subject offence. Newman Li is a gentleman who lives in an apartment or lived in an apartment above family‑owned shops in Regent Street in Redfern. At about 10.15pm on 4 December 2019, he was at home with two girls and another male.

4. The co‑offenders Sultan and Touma were in Redfern in the vicinity of his address. The police were intercepting phone calls and text messages made to and from the co‑offender Sultan’s phone in which Li was discussed; locating his address and who he was with and what he was doing. The co‑offenders, Sultan and Touma, were unable to find Li and it was decided the robbery would not go ahead on 4 December 2019.

5. A new plan was suggested by Edralin and Enriquez to rob Li when Enriquez was at Li’s home the next day. That plan, as I would understand it, came into existence on 4 December 2019. During the afternoon of 5 December 2019, the police intercepted phone calls made to and from Sultan’s phone in which the plan to rob Li that night was discussed. Sultan arranged for this offender, Mr Lasalo, Touma and Edralin to come to his unit in Campsie where they would drive in two cars to Redfern.

6. In was arranged that Enriquez would open the door for the offenders when they arrived. There is set out in the agreed statement of facts certain intercepted telephone conversations. I am not going to read them all onto the record because they are not all involving this offender. One of some significance is one at 3.17pm between the co‑offenders, Sultan and Enriquez, in which Sultan says, “We’re going to go in two cars, yeah? I’m going to have the thing on me so I don’t want to - want you up there when I have it.” Enriquez says, “Yeah, yeah,” and Sultan is recorded as saying, “We’re going to split it all the way, you know.”

7. Then of central significance in relation to this offender’s involvement is a conversation at 3.53pm between Sultan and this offender. As the call is set out in the agreed facts, it reads that it appears that Sultan has rung this offender, who responds, “Yo, yo” and Sultan says, “Yo, yo, on 7 o’clock, me, Chris, you, everyone,” this offender responds, “7 o’clock.” Sultan says, “7 o’clock, we’ve got a person that’s going to be inside.” This offender, “What is it?” Sultan, “We’ve got a person that’s going to be inside opening the door for us” and this offender is recorded as saying, “All right, done.” Sultan, “All right. We’ll go in two cars.” This offender, “Sweet.” Sultan, “Yeah.” This offender, “Yeah, done. Done. Done.” Sultan, “All right, all right. If I - the only reason we have to do it today before he fucking realised tomorrow.” This offender, “What is it?” Sultan, “Do it today before he realised. Tomorrow he spends his money because, ah, his best mate says that he’s got the money. He’s going to buy tomorrow pounds and ockers”, which I understand may be slang for “ounces”, “so I’ve got to go tonight.” This offender, “Done.” Sultan, “And I’m with Chris now so we’re all in for tonight.” This offender, “Sweet.” Sultan, “All right, 7 o’clock, be at mine.” This offender, “See you then.” Sultan, “Yo, yo.” This offender, “Yo, yo.”

8. On the evening of 5 December 2019, Li was at home with his girlfriend, Enriquez. Whilst Enriquez was there she was in contact with her boyfriend, Edralin, as arranged. She relayed information to Edralin who in turn relayed information to Sultan. Between 6.40pm and 7.19pm, police were monitoring Sultan’s phone and intercepted calls to and from him. He spoke with Zabu, it says in the facts, and Edralin. Zabu is Sultan’s girlfriend as I mentioned earlier.

9. At 6.40pm, there was a conversation recorded between Sultan and this offender in which this offender tells Sultan, “Just letting you know I’m on the way” and Sultan responds, “We’re all waiting up here already.” At 6.59 there is a communication between the two of them in which Sultan says, “Call me. Call me when you’re out the front. He’s, he’s at home by himself but.” This offender tells him, “I’m just going past Burwood.” And Sultan says, “All right. He's home by himself. We’re all ready, um, all right, sweet, sweet, call us when you’re out the front anyway or come in the basement” and this offender says, “All right.”

10. Then at 7.05pm this offender and Sultan are in communication and this offender tells him, “I’m here.” Sultan says, “All right. Drive in the basement and go, we’ll jump in with ya, all right.” There are then further conversations between Sultan and others who were involved in this criminal enterprise, which I do not see the need to read out. It is clear that they were then on their way to where it was anticipated there would be the robbery.

11. Police were conducting surveillance having been monitoring the phones. They observed the vehicle driven by, as I understand, this offender, which was occupied by Sultan and Touma and another vehicle with Edralin and Zabu, driving in convey from the Fifth Avenue, Campsie and it stopped in Cope Street, Redfern. This offender, the co‑offenders, Touma and Sultan, got out of the vehicle, they walked down the laneway towards Regent Street. Police stopped them, searched them and placed them under arrest. They were taken to Mascot Police Station. They all declined, including this offender, to participate in a record of interview with the police.

Objective seriousness

12. Turning then to my assessment of the objective seriousness of the offence. The essence of the crime of conspiracy is an agreement to commit a crime. In the context of this case, the agreement was to commit a robbery in company. When sentencing for conspiracy, it is important to consider the role an offender has played in the conspiracy the subject of the charge. It is also important to assess when it was that a particular offender became a party to the agreement central to the conspiracy.

13. The agreement to rob the person Li, according to the agreed facts, came into existence on 4 December 2019 and it appears to have been hatched between the co‑offenders, Karim Sultan and Christopher Touma. The initial plan as to how the agreement was to be implemented was subsequently changed later that day after a suggestion by two other co‑offenders, Brendon Edralin and Desiree Enriquez.

14. The first reference to this offender in the agreed facts is in the telephone conversation between himself and the co‑offender Sultan at 3.53pm on 5 December 2019. It is an overwhelming inference from the initial part of that conversation which was recorded that the offender had some knowledge of the intention and agreement to carry out a robbery in company prior to that telephone conversation.

15. I cannot find beyond a reasonable doubt, however, how long before that telephone conversation the offender had joined the conspiracy, but I am satisfied that he had joined it prior to that conversation occurring. Part of this offender’s role involved collecting and driving other members of the conspiracy to the vicinity of where the robbery was intended to be committed. It is apparent from the content of the agreed facts and from statements the offender subsequently made to a psychologist, that the offender’s involvement in the conspiracy was for an expected financial gain.

16. I am not able to determine the extent of the financial gain. I do note that in a conversation between the co‑offender Sultan and Enriquez, which I referred to earlier, there is a discussion which suggests that whatever was obtained was going to be split equally among the participants. It is a strong inference that what was occurring here was an agreement to rob a person whom the participants considered was involved in the drug trade.

17. The amount of money and perhaps drugs that was hoped to be obtained through the robbery is unclear. A conversation between the co‑offender Sultan and this offender suggests that the value of money that was expected to be obtained was likely to be of some significance, noting the number of people whom it appears would share in the spoils of the proposed robbery. The agreed facts suggest that this offender is not someone who instigated the conspiracy or was involved in its planning.

18. In addition to providing some transportation for some of the other participants in the conspiracy, material in the subjective case for the offender, in particular material concerning his size and physical bearing and statements he made to a psychologist suggests that he was engaged in the conspiracy to provide an intimidatory physical presence when the robbery occurred.

19. I assess the objective seriousness of this offence as being well below any notional midrange offence, however, I do not consider the offence and this offender’s role in it to be at the very bottom of the range.

The offender’s subjective case

20. Turning then to the subjective case. The offender’s date of birth is 2 May 1987, so he is currently 33 years of age and was 32 as at the time of the offence. He is still a relatively young man but is not what is sometimes termed a young adult offender. This offender has effectively no criminal history, having received a dismissal of a charge of drive whilst licence suspended under s 10 of the Crimes (Sentencing Procedure) Act in 2019. His lack of a criminal record entitles him to leniency in this sentence.

Sentence Assessment Report and psych reports –

21. In terms of documentary material, there is before me the following: a Sentencing Assessment Report dated 29 January 2021; a psychological report dated 27 January 2021 by Alison McCallum, a forensic psychologist; testimonials from the offender’s wife, the wife of a cousin, friends and his father‑in‑law. The offender’s wife gave evidence on sentence and was an acceptable witness and confirmed the content of much of the documentary material that is before me. The offender himself did not give evidence and I have had some regard to that in my assessment of the material that is before me.

Family background

22. In terms of his family background, the Sentencing Assessment Report records that the offender resides with his wife and three children in a granny flat at his mother’s property. He is said to have multiple sources of support from his wife and immediate family members. The testimonials before me show the support that the offender has from friends and family.

23. The offender told the author of the Sentencing Assessment Report that he had previously worked with one of the co‑offenders who then introduced him to the others. The offender’s family background is more fully outlined in the psychological report. He and his family migrated from Tonga to Australia when the offender was two years of age. His father died when he was seven. The offender told the psychologist that his mother re‑partnered when he was 11 and that the offender did not have a good relationship with his then stepfather.

24. The evidence before me indicates that he and his wife met when they were teenagers. They became de facto partners when 18 and married when 21. They have three children between the ages of six and 14 years, two sons and one daughter. The youngest child has developed epilepsy. It appears that for most of the offender’s marriage it has been a stable one, however, during the period September 2017 and April 2018, the offender left the matrimonial home and commenced an affair which resulted in the birth of a daughter.

25. The evidence before me suggests that in the lead up to that occurring, the offender was abusing alcohol and prohibited drugs. The mother of the daughter who was born as a consequence of the affair has refused to allow the offender to have any contact with the child over the last 12 months, which has distressed the offender and he intends to pursue access orders in the Family Court.

26. The testimonials and evidence from the offender’s wife essentially confirms the content of the professional reports as to his family background and the difficulties that have been experienced in the marriage. The testimonials also indicate that when the offender is not involved in illicit drug‑taking, he is a good father to his children and a hard‑working member of the community.

Education and employment history

27. In terms of his education and employment history, the psychologist’s report details that the offender completed his higher school certificate, although he had some discipline issues while attending school. He denied that he had suffered learning difficulties. He played rugby league for some time and after leaving school completed a panel beating apprenticeship. After completing the apprenticeship, he worked in the security industry as it paid better and allowed him to attend to some of the children’s needs.

28. The offender told the psychologist that he and a business partner started a subcontracting and security business in 2017. He operated the business until mid‑2019. After a period of unemployment, he obtained work with AFT Safety Handrail. He reported to the psychologist that his employer remains supportive of him despite his offending. The Sentencing Assessment Report records that he is currently employed on a full‑time basis in the labouring industry, which I assume is the employment he has with AFT Safety Handrail.

Substance use

29. In terms of his alcohol and drug use, the offender reported to the psychologist that he commenced drinking at the age of 21 when he had disengaged from playing rugby league. The offender told the psychologist that he had not engaged in any illicit drug use until he commenced working in the security industry. Working around nightclubs exposed him to illicit drug use and that he developed a $1,000 a week drug habit which involved the use of MDMA and cocaine.

30. The offender told the psychologist that he ceased drug use for nine months after he had reconciled with his wife in April 2018. Prior to reconciling with his wife, he told the psychologist that he also had a problem with gambling. According to what he told the psychologist, he attributed his relapse in 2019 to having become acquainted with his co‑accused, Karim, which coincided with his period of unemployment and that he had been given free cocaine by that co‑offender.

31. According to what he told the psychologist, after his arrest in December 2019 he ceased all illicit drug use. He admitted that since that time on occasions he craves cocaine but has not been tempted to engage in the use of it as he thinks of the pain he has caused people as a consequence of his past illicit drug use. The psychologist considered that as at the time of the commission of the offence, he would have been suffering from a stimulant use disorder which the psychologist considered was now in sustained remission. The fact the offence was committed as a consequence of his drug addiction is, of course, not a mitigating factor on sentence.

Psychological/psychiatric history

32. According to the psychologist’s report, he first consulted a psychologist in late 2018 but only attended two sessions. He denied having had a prior diagnosis for a mental health condition. His general practitioner confirmed that in November 2018, he had presented for counselling for anxiety and depression.

33. After psychometric testing, the psychologist considered the offender had mild symptoms of depression and stress and moderate symptoms of anxiety. Those symptoms are to be expected where a person is awaiting sentence for a serious criminal offence. The other results of psychometric testing set out in the psychologist report suggest that the offender is generally well socialised but when problems arise, he lacks the insight to deal with them appropriately.

Response to supervision if relevant

34. While the offender has never been supervised by Community Corrections, the Sentencing Assessment Report states he showed a poor attitude towards supervision as he was recorded as being poor in attending appointments with Community Corrections in the preparation of the report. His wife’s evidence put that in some context saying that the appointments often had to be rescheduled due to his work commitments.

Attitude to the offence

35. In terms of his attitude to the offence, somewhat troubling given his plea of guilty is the fact that he denied responsibility for his offending behaviour to the author of the Sentencing Assessment Report. He is recorded in that report as agreeing with the agreed facts but attributed blame to his co‑offenders, “claiming that he was not aware he was participating in a planned robbery.” The offender maintained his plea of guilty during the proceedings and his wife gave evidence that he had, in fact, admitted to the author of that report his involvement in the offence, although had stressed his limited involvement.

36. The author of the Sentencing Assessment Report considered that the offender lacked insight into his offending behaviour and failed to acknowledge the potential impact on the targeted victim. The offender told the author of that report that the co‑offenders had paid him to accompany them to the victim’s property and collect money from the victim. He also told the author of that report that at the relevant time, he was employed and financially stable but sought to improve his financial situation referring to the offence as “another pay cheque”.

37. Not having heard from the author of the Sentencing Assessment Report or from the offender, I am unable to resolve whether or not in light of the offender’s wife’s evidence the content of the Sentencing Assessment Report on his attitude to the offence is correct. The account the offender gave to the psychologist is to some degree at odds with the account he gave to the author of the Sentencing Assessment Report. He told the psychologist that shortly before the offence, his co‑offender Karim had proposed that they rob another drug dealer. He said he felt indebted to Karim.

38. On the day of the offence, he told the psychologist that Karim had phoned him about the conspiracy to rob Mr Li. He told the psychologist that he was unaware of the specific plan but understood his role was to present as the “muscle man”. The psychological report records the offender expressing remorse for his offending, but generally by way of expressing concern as to the consequences of his offending upon his family.

Future and risk of re-offending

39. His wife gave evidence that the offender had expressed remorse, which encompassed what might have happened to the victim if the robbery had not been prevented by the police action. The sentencing assessment report records the offender as having a low to medium risk of re‑offending.

Imposition of sentence

40. The offender entered a plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian bearing of his plea.

41. I think there is some evidence of remorse, although I consider it is primarily directed towards the impact his arrest and the proceedings have had upon his family members. To some degree, this is understandable as the facts suggest the victim was not aware of the conspiracy. He has good prospects for rehabilitation. He has no prior record. There is strong family support and he is in full‑time employment.

Parity issue

42. There is a parity issue in this sentence. The co‑offender Edralin has been sentenced by Judge O’Brien of this Court. I do not, unfortunately, have his Honour’s remarks as at the time of this sentence. It is clear from the agreed facts in this sentence and at Edralin’s sentence that he was involved in the conspiracy from 4 December. It is also clear that he had a more significant role than this offender, suggesting that on 4 December a new plan as to how the robbery was to be carried out should be implemented.

43. Edralin on 5 December 2019 appears to have simply been one of the drivers to the scene and would not have been involved in confronting the victim. In terms of Edralin’s subjective case, he was a very young adult offender, only 19 at the time of the offence, so that the principles associated with sentencing a young adult offender would have applied to him. Those principles do not apply to the sentencing of this offender. Edralin had a limited criminal history but it was a little worse than this offender’s. Edralin had spent 82 days in custody before being released to bail and was on bail when sentenced by his Honour. He too had pleaded guilty at an early point in time and I understand his Honour imposed an intensive correction order for a period of 18 months.

44. Given the differences in role and in the subjective cases I consider on balance that a similar term of sentence to that imposed on Edralin should be imposed on this offender.

45. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Robbery in company is a very prevalent offence, so it follows that conspiracy to commit a robbery in company must also be prevalent in our community. People are entitled to go about their daily lives without the risk and fear of being subjected to a robbery by a group of men. General deterrence, that is, the need to send the message that such conduct will not be tolerated by the Courts, must inform any sentence imposed for such an offence.

46. Personal deterrence is always a relevant factor when imposing a sentence for such an offence. It was not suggested, correctly, that a sentence other than imprisonment was the only appropriate sentence to impose. I consider that an appropriate term of imprisonment is one of 18 months. As the sentence is less than two years, I have considered whether I should extend to the offender the leniency of allowing him to serve the sentence in the community by way of an intensive correction order.

47. In considering whether to impose the sentence by way of an intensive correction order, I am to consider as the paramount consideration community safety. I am to assess whether the making of such an order or serving the sentence by way of full‑time detention is more likely to address the offender’s risk of reoffending. I consider in the circumstances here community safety will not be compromised if I allow the offender to serve the sentence in the community. I consider that an intensive correction order is more likely to address the offender’s risk of reoffending.

48. Just stand up, Mr Lasalo, please. You are convicted of the conspiracy offence to which you pleaded guilty. You are sentenced to a term of imprisonment of 18 months. It commences today and expires on 3 August 2022. It is to be served by way of an Intensive Correction Order. The standard conditions attach to that order: you must not commit any offence; you must submit to supervision by a Community Corrections officer.

49. I am required to impose at least one additional condition contained within s 73A(2) of the Crimes (Sentencing Procedure) Act. Those conditions are as follows: you are to abstain from taking prohibited drugs during the term of the order; you are to perform 250 hours of community service.

50. You should understand that you have received a sentence of imprisonment today. I am allowing you to serve it in the community. You must ensure that you comply with all the conditions of the order. If you do not, you do not come back to court, it gets referred to the State Parole Authority and there would be a very good chance that they would revoke the order and send you into full‑time custody.

51. You must ensure that you fully comply with the terms of the order. There is quite a lot of community service. There is supervision by Community Corrections and you need to make sure you fully comply with all of their requirements, otherwise you really run the risk of having to go into full‑time custody. You will be required to go to the registry after the Court today to pick up a copy of the order. There will be a little bit of a delay while my associate prepares the file and you are required to contact the Parramatta Community Corrections office within seven days of today. Just have a seat.

52. Orders

1. Sentence imposed one of 18 months imprisonment, to be served by way of Intensive Corrections Order. The sentence commences 4 February 2021 and expires on 3 August 2022.

2. The following standard conditions are attached to the Intensive Corrections Order:

1. The offender must not commit any offence;

2. The offender must submit to supervision by a Community Corrections officer

3. The following additional conditions are imposed:

1. The offender is to abstain from taking prohibited drugs during the term of the order

2. The offender is to perform 250 hours of community service

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Decision last updated: 07 April 2021