La Rosa v The Queen [2019] VSCA 152

1 On 13 September 2018, following a trial on indictment ('the trial indictment') in the County Court, the applicant was convicted of one charge of extortion with threat to inflict injury, one charge of aggravated burglary and one charge of theft. She subsequently pleaded guilty to three summary offences, namely: one charge of driving whilst disqualified, and two charges of dealing with property suspected to be the proceeds of crime.

2 Prior to the final directions hearing in relation to the charges that went to trial, the applicant offered to plead guilty to charges on a separate indictment ('the plea indictment') and, pursuant to that offer, the applicant subsequently pleaded guilty to five charges of obtaining a financial advantage by deception, five charges of attempting to obtain a financial advantage by deception, one charge of obtaining property by deception, one charge of possession of identification information and one charge of possession of a drug of dependence.

3 On 27 September 2018, the applicant was sentenced as follows:

Indictment No: C1611014A (the trial indictment)

Dealing with property suspected of being proceeds of crime

12 months on the sentences imposed on Indictment No: C1611014A

Attempting to obtain a financial advantage by deception

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

4 The applicant now seeks leave to appeal against her sentence on the following grounds:

1. On [the trial indictment] the individual sentences, degree of cumulation and non-parole period are manifestly excessive.
2. The judge [on the trial indictment] erred in classifying the extortion as a mid to upper mid-level example for such an offence.

5 The offending the subject of the applicant's convictions on the trial indictment took place over an 11-day period in July 2016. The victim of this offending, BC, had been in a relationship with the applicant in 2014. The applicant maintained some contact with BC following the conclusion of the relationship. The offending may be briefly summarised as follows.

6 In July 2016, BC was living and working as a builder at a property in Mornington. On 8 July, the applicant arranged to meet BC at the Mornington address. At that time, the applicant was in a relationship with one Lodin.

7 The applicant and Lodin met BC at the Mornington address. Lodin told BC that he owed the applicant $10,000, but that he (Lodin) would accept $4,000 in settlement of that debt if it was paid the next day. BC was told that Lodin was 'affiliated', which was taken to mean that he was associated with bikie gangs. The applicant warned BC not to call the police. BC felt intimidated and agreed to pay the sum demanded.

8 The next day, Lodin called BC and told BC to meet him and hand over the money. The applicant was aware of that proposed meeting and what occurred at it. BC met Lodin, in Stumpy Gully Road in Moorooduc. BC handed over about $800. Lodin was aggrieved that that was not $4,000 and urged his dog to attack BC. Lodin then punched BC to the nose, breaking his glasses and causing a cut to his nose and his nose to bleed.

9 BC left the scene and was subsequently observed by a witness to be frightened and bloodied. The applicant texted BC later that day, telling him to pay the rest of the 'invoice'. The applicant also apologised for what had occurred that day.

10 The following day the applicant sent a series of text messages to BC. BC told the applicant that he had another $400 he could give her. Subsequently, the applicant and Lodin both attended at the Mornington address and collected $400.

11 Over the next few days, further text messages were sent from the applicant's phone to BC chasing money.

12 On 19 July 2016, BC was at the Mornington premises. He had created barricades, attempting to keep the applicant and Lodin out of the premises. In the afternoon, the applicant and Lodin arrived at the premises. Lodin demanded BC open the gate. BC, however, went back inside the house and hid himself in a lift shaft. BC rang 000 from inside the premises, and then went up into a roof cavity. The applicant and Lodin both came into the house and rifled through drawers and attempted to open the lift doors, searching for BC. They then stole a phone wallet containing BC' driver's licence and other cards and also a number of BC's power tools. The applicant used BC's details that night in an attempt to obtain credit facilities from Citicorp Proprietary Limited (this was the subject of charge 5 on the plea indictment).

13 The power tools stolen from BC were subsequently recovered, as was BC's phone wallet, at the applicant's premises in Cheltenham.

14 On 26 July, the applicant was interviewed by police. She lied to the police about her involvement in the offending. Subsequently, police conducted searches of the applicant's premises. Significant quantities of property suspected to be the proceeds of crime were located, including a motorbike, iPads, computers, tools, clothing, a watch, identity documents, keys and PlayStation equipment.

15 The circumstances of the offending the subject of the plea indictment were set out by the judge in some detail in his reasons for sentence.[1] As the applicant has not applied for leave to appeal with respect to the individual sentences imposed on the offences in the plea indictment, it is not necessary to set out the circumstances of that offending in great detail. For present purposes, that offending may be summarised as follows.

16 The applicant committed various acts of dishonesty between April and September 2016 which gave rise to the offences constituted by charges 1 to 9 and 12. These included:

• using another person's details to obtain mobile telephone services;
• using a different person's details to obtain an American Express credit card;
• obtaining a residential tenancy agreement by deception;
• attempting to obtain other mobile telephone services, credit facilities and a lease facility by deception;
• using BC's details in an attempt to obtain credit facilities from Citicorp; and
• after being interviewed by police, continuing to offend by using deception to hire different cars.

17 On 26 July 2016, police located 30 identification documents and a small quantity of GHB at the applicant's premises. The documents were the basis of charge 10 on the plea indictment, and the GHB was the basis of charge 11.

18 The applicant was born in 1980. She was 36 at the time of offending, and 38 at the time of sentencing. She was educated to year 12. Her work history included:

• being employed in a pharmacy for 10 years;
• undertaking beautician courses at TAFE;
• working in a pet shop for some 12 months up to the time of her offending; and
• working as a customer service operator in a mailing company on a part-time basis between the time of her arrest and the time she was taken into custody prior to trial.

19 At the time of sentencing, the applicant had three children who were under the age of 12. At the conclusion of her relationship with the father of her two eldest children, the applicant commenced using ice and amphetamines. A DHS report tendered on the plea stated that the applicant was highly motivated to rid herself of illicit drug use and to achieve meaningful change in her life. That said, a drug screen in June 2018 returned a positive sample for methamphetamine. The applicant was remanded in custody three days later.

20 The applicant had a prior criminal history which, as the judge put it, was 'consistent with someone going off the rails because of drugs'.[2] Her criminal history spanned the years 2015 to 2016 and included charges of theft, drug possession and use, obtaining property by deception, failing to answer bail and driving offences. On 27 April 2016, the applicant was convicted of obtaining property by deception, driving while disqualified and failing to answer bail. She was sentenced to a community correction order for 12 months. The offending the subject of the trial indictment, and almost all of the offending the subject of the plea indictment, was committed while the applicant was on this CCO.

21 After setting out relevant background matters, a description of the applicant's offending, and matters personal to the applicant, the judge turned to the issue of rehabilitation and said that he accepted that the applicant's prospects for future rehabilitation were good so long as she remained drug free.[3] The judge then said that he took the applicant's future prospects into account when sentencing her.[4]

22 The judge described the applicant's pleas of guilty to the offences on the plea indictment and to the three summary offences as having 'significant utilitarian value', and having saved the community the cost of what 'would have been a complicated trial'.[5] The judge then said that the applicant was entitled to, and would receive, a reduction in her sentence to reflect her pleas of guilty.[6]

23 As to the seriousness of the various offences committed by the applicant, the judge said:

Your fraud offending was significant, protracted and serious. You have relevant prior convictions and were on a community correction 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.[7]

24 Later in his reasons, the judge recorded the fact that he had been informed that the applicant had offered to plead guilty 'to effectively the charges upon which [she was] convicted by the jury prior to the commencement of the trial'.[8] The judge said that he took that fact into account, even though the applicant was 'not entitled to the discount in sentencing that attaches to a plea of guilty'.[9]

25 Finally, the judge said that the maximum penalties set down by Parliament 'demonstrated the seriousness for which the applicant's conduct was to be viewed', and that due regard had to be paid to the maximum penalties.[10] The judge went on to say, however, that 'issues of totality of sentence [were] significant'.[11]

26 The applicant submitted that on the trial indictment, the individual sentences, the orders for cumulation and the non-parole period were all manifestly excessive in light of the following matters:

(1) The offending constituting the aggravated burglary was 'a particularly low level example of the offence'. There was no intention to assault at the time of, or upon entry. It was entry with intent to steal. No damage was caused to the premises in gaining entry, or during the offence. There was no confrontation. It was over within minutes. Moreover, the applicant had a 'genuine belief she was entitled to the money owed'.

(2) The applicant pleaded guilty to the offences on the plea indictment, having offered to do so prior to the final directions hearing. Accordingly, she was entitled to 'the full sentencing discount'.

(3) The antecedents of the applicant were favourable. Specifically, the applicant had no relevant criminal offending until she was 34 years of age and developed an ice habit. Further, it was the applicant's first time in custody. Prison would also be particularly burdensome for her, being a mother of three young children.

(4) The applicant had an excellent work history.

(5) The applicant had significant family support, being in a close relationship with her mother and children.

(6) The applicant's prospects for rehabilitation were favourable, the applicant being highly motivated to achieve meaningful change in addressing her anti-social and criminal behaviour brought about by the drug habit she had developed.

(6) The principle of parsimony.

(7) The effect of family hardship on the applicant.

(8) The principal of totality, which it was submitted, required that only modest cumulation be ordered in this case. Additionally, the 'low level aggravated burglary formed part of the charge period for the extortion as did the theft'.

27 Under ground 2, the applicant submitted that the judge erred in classifying the extortion as a 'mid to upper mid-level example for such an offence'. The applicant noted, amongst other things, that:

• the offending was over a period of less than two weeks;
• the first attendance at BC's premises 'was not accompanied with any actual violence', and the applicant and Lodin were only there for 'a short period of time';
• the applicant believed that she was entitled to the money claimed - 'her claim to the debt had been in existence well prior to the charged events';
• the 'level of the threat was restricted to injury associated with the use of a fist or fists on a given day, without the use of any weapons'; and
• the threat was of the least serious kind of the threats described in s 27 of the Crimes Act 1958.

28 The respondent submitted that leave to appeal should be refused. It was not reasonably arguable that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.

29 In answer to the submissions made by the applicant on both grounds 1 and 2, the respondent contended that there were a number of objectively serious features of the applicant's offending:

The extortion was committed over eleven days. The reference to Lodin being 'affiliated' was clearly designed to put [BC] in fear. [BC] was told not to call the police. Having been assaulted by Lodin, the extortion continued. The demands continued. It culminated in an aggravated burglary which the applicant committed in company with Lodin.

30 The respondent submitted that it was well open to the judge to classify the extortion as he did, particularly in light of the objectively serious features of it. Moreover, the sentences imposed did not reveal any misapplication of principle.

31 Finally, the respondent submitted that, 'far from being manifestly excessive, [the sentences] were well within the available sentencing range'.

32 It is convenient to start with ground 2, in which the applicant makes complaint about the judge classifying the extortion charge as 'mid to upper mid-level'. There is no substance in this complaint. Two points may be made.

33 First, as has been said before,[12] generally it is not helpful to debate whether relevant offending falls within a particular category such as 'the top of the lower range' or 'the bottom of the mid-range' or any other part of the lower, middle or upper range. Such an approach carries a risk of limiting the intuitive synthesis, resulting in a corresponding risk that an offender might be sentenced without full and proper regard to all of the relevant circumstances of the offending and the offender.

34 Secondly, when one actually looks at all of the circumstances of the applicant's offending in this case (including the objectively serious features relied upon by the respondent), it is difficult to see how there could be any complaint about the judge concluding that the offending was serious and not to be regarded as being at the lower end of the spectrum. This was nasty offending that, as the judge noted, had a serious impact on the applicant's victim, BC.[13]

35 We turn now to ground 1, the applicant's complaint of manifest excess.

36 While ground 1 is expressed to be a complaint about the sentences imposed, and orders for cumulation made, on the trial indictment, there is also a complaint that the non-parole period (fixed in respect of the sentences imposed on both the trial and plea indictments) is manifestly excessive. That said, there is nothing in any of the applicant's complaints of manifest excess.

37 All of the offending in relation to the trial indictment, and almost all of the offending in relation to the plea indictment, was committed by the applicant while she was on a CCO that had only recently been imposed. That is a significant factor that tells in favour of the imposition of the sentences imposed by the judge. Moreover, the offending was protracted, and none of the offences could be described as isolated. We agree with the respondent's submission that the sentences and orders imposed by the judge, far from being manifestly excessive, were well within the available sentencing ranges.

38 From his reasons for sentence, and from the sentences and orders he pronounced, it is plain that the judge had regard to all of the matters and circumstances that the applicant was legitimately able to call in aid in mitigation. In our view, it is not reasonably arguable that any different sentence should have been passed by the judge.

39 The application for leave to appeal will be refused.

[1] DPP v La Rosa [2018] VCC 1593 ('Reasons').

[12] See, eg, DPP v Weybury [2018] VSCA 120 [33].