CDirector of Public Prosecutions v Vo
[2023] VCC 336
•6 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01385
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET HOANG VO |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 February 2023 |
DATE OF SENTENCE: | 6 March 2023 |
CASE MAY BE CITED AS: | CDPP v Vo |
MEDIUM NEUTRAL CITATION: | [2023] VCC 336 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Deal with money, being $100,000 or more, reasonably suspected of being proceeds of crime
Legislation Cited:
Cases Cited:
Sentence:9 months' imprisonment, released after 3 months on 12-month recognisance with $2,000 security
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth DPP | Mr P. Russell | Commonwealth Office of Public Prosecutions |
| For the Commonwealth DPP | Mr P. Darby | |
For the Accused | Mr A. Halphen | Galbally & O’Bryan Lawyers |
HIS HONOUR:
1Viet Hoang Vo, you pleaded guilty to an offence of dealing with money, being $100,000 or more, reasonably suspected of being the proceeds of crime, for which the maximum penalty is imprisonment for three years or a fine of 180 penalty units or both.
2You have also admitted a criminal history which shows one prior conviction on 12 September 2014 for cultivating a narcotic plant, namely cannabis, for which you received a community correction order for 18 months requiring you to perform 150 hours of unpaid community work.
3The prosecution tendered and read to the court a summary of prosecution opening for plea dated 27 January 2023 which sets out quite succinctly the facts of the offending conduct.
4The offence occurred on 23 October 2018 and resulted from a police investigation into a major drug trafficking and money laundering syndicate, or syndicates. One of the people who attracted the attention of the police investigation was a person who was then living at your home address, a Van Viet Nguyen, who I understand has since left Australia and has not been prosecuted for any part that he played in the offending conduct.
5As a result of the police attention to Mr Nguyen, static surveillance was taking place on 23 October 2018 outside your home in Noble Park. You were seen to leave that address in a motor vehicle with your wife and children.
6You were seen to leave home at 8.32 pm and about 2 minutes later the police intercepted your vehicle and approached you. You were asked some questions, which led to the police seeking to examine some boxes in the rear of your vehicle. You showed signs of discomfort at the rear of the vehicle whilst police were conducting the inspection, and police continued with a more detailed examination of the vehicle. They found a bag concealed inside the spare tyre boot well which was found to contain a total of $524,920 in cash along with numerous handwritten notes of names and bank accounts.
7You were cautioned and told that you did not have to answer any questions. You were asked about the money and you made 'no comment' initially, but then told the police, 'No, I'll take claim to it'. You were arrested, taken back to the police station and further questioned. You made no admissions to police during the further questioning.
8Your counsel provided me with a written plea submission dated 20 February 2023 in which he described your background, your family and your work history. He noted that you were 32 years of age at the time of the offending and are now 36 years of age. You were born in Vietnam and were brought to Australia in 1991 as an infant. You left that country with your mother and were accommodated in a refugee camp, initially in Indonesia. You were fortunate enough to be sponsored for migration to Australia by a couple from Western Australia. Your father was still in Vietnam when you arrived in Australia in 1993 or 1994 and he did not come to Australia until you were in your teens. Your mother and father are still together and you have a younger sister, who was born in 2003.
9You have remained in touch and close with your parents. You were of considerable assistance to your mother when she was diagnosed with breast cancer a few years ago. Fortunately, that is now in remission.
10You completed Year 12 and commenced a tertiary course in marketing, but prior to completing that course you joined the workforce and have been in paid employment since. Recently you have held a position as a warehouseman and forklift driver for a period of six years. You left that employment deliberately in order to avoid embarrassment to your employer arising from your having to deal with this charge.
11You met your wife in 2012 and married in 2014. She is a small business owner and you have two daughters aged nine and eight. The older daughter has difficulty with verbal comprehension and has experienced attention and concentration difficulties. You are the only fluent English speaker in the family, so you have devoted considerable time and effort in assisting your daughter with her learning difficulties.
12I was provided with a psychological report, Exhibit 3, and a speech pathology assessment report, Exhibit 4, both of which deal with the learning difficulties from which your elder daughter suffers. I was also provided with a letter from Tam Dinh, psychologist, dated 18 February 2023, who speaks of some treatment that you had in the latter part of last year and the early part of this year for depression, stress and mild anxiety that you have been suffering from, it seems, largely as a result of having to face this charge. However, I note that as a result of the treatment that you received there has been considerable improvement in those conditions.
13I was also supplied with a letter from your wife, a letter from your previous employer dated 6 December 2022, a letter from a work colleague, Albert Schenn, dated 30 January 2023, and a letter from Phong Hoai Vo dated
7 December 2022 speaking of many good qualities, including qualities of your work, as a colleague and a father, and as a son and husband.14Your counsel stressed that you only have one previous criminal offence on your record, and that is some time ago now, and since then you have become a father. He dealt with the nature of the offending conduct, pointing out that this was a single, isolated incident, that you had a limited role to play, that your involvement was neither sophisticated nor sustained, that you used your own vehicle and that you were acting as an individual and not as a member of a larger syndicate or operation. There is no evidence of your knowledge of the source of the funds, no evidence of planning, no evidence of any benefit that you may have expected and the offending was not interwoven with any other offending. He pointed out that this being a Commonwealth offence, I am bound to give proper weight to s16A(1) of the Crimes Act (Cth) and to the matters that apply in your particular case arising under s16A(2). I have endeavoured to do that in arriving at the sentence that I intend to impose.
15Your counsel stressed the fact that you had pleaded guilty to the offence and that needs to be given proper weight, given that it was tendered during the period of the COVID pandemic. There is a very significant utilitarian benefit to the community as a result of your plea of guilty and I also accept that your plea of guilty is an indication of remorse for your offending conduct. You are entitled to a significant reduction of sentence as a result of your plea of guilty in this COVID climate.
16Your counsel stressed that the delay, which is now something in the order of four and a half years between the offending and you appearing here today, is substantial, and that you have had the matter hanging over your head for that period of time. It has given you the opportunity of indicating that you are quite capable of staying out of trouble and demonstrating that you are a good candidate for rehabilitation. Your counsel also stressed, and rightly, the effect of incarceration, or the likely effect on your family - in particular, your children, and most particularly, your older daughter. I do take those matters into account in your favour in determining the appropriate sentence.
17The plea was offered at the earliest available opportunity. You have endured a considerable period of time for the charge to be laid, and then come before the court. That is a very significant factor in determining the appropriate sentence. Your counsel submitted that your work history, your support and ongoing responsibility for your children, the references to which I have referred and the absence of any drug or alcohol problems, or any other social issue which might otherwise suggest that you may re-offend, are absent in your case. It seems that the period of the delay has also had a deleterious effect upon your mental health, resulting in your consultation with Tam Dinh, the psychologist to whom I referred.
18As I noted earlier, your counsel stressed the effect that a term of imprisonment would have upon your family, and particularly your older daughter. He urged me to impose a sentence which does not require your immediate incarceration. On the other hand, the prosecution have submitted, in an outline of submissions, that a term of imprisonment requiring immediate imprisonment is the only appropriate sentence; having regard, in particular, to the need for a sentence which pays proper regard to general deterrence in the sentencing process.
19One of the significant aspects of the offending involves the sum of money, being $524,920, which is more than five times the threshold for the offence to which you have pleaded guilty. I accept, of course, that your state of mind as to the origin of the funds and the nature of the offending conduct which gave rise to the offence committed by others is irrelevant to the sentencing discretion and that what you did was short duration, although acting effectively as a courier albeit on that one occasion, is something that requires the court to consider imposing a sentence which deters others from becoming involved in offending of a similar nature.
20I was assisted by reference to a number of decisions of appellate courts and provided, by the prosecution, with a comparative sentencing schedule. Both counsel spoke to that schedule during the course of the submissions. I note, of course, that the sentences passed in other cases only provide a guidepost, and that the facts relating to those other matters are clearly not identical with the facts relating to this particular case. However it does seem to me that in cases of this nature - particularly where the sums of money are reasonably high - the sentencing of the courts in cases where the facts are broadly similar involves a period of actual incarceration.
21I accept that your prospects of rehabilitation are good. You did not learn your lesson, it seems, from your previous appearance before this court - albeit that that was some time ago.
22I now proceed to pass sentence upon you.
23Viet Hoang Vo, for the offence of dealing with money, being $100,000 or more reasonably suspected of being the proceeds of crime, I convict you and sentence you to a term of imprisonment for a period of nine months.
24I order that you be released after serving three months, provided you are willing to enter into a recognisance to be of good behaviour for a period of 12 months and on you giving security in the sum of $2,000.
25I need to explain to you what that means. It means that you will have to be of good behaviour in the sense of not committing another offence punishable by imprisonment during the period of 12 months that the order is in force. If you do commit such an offence during that period, firstly, you could lose the $2,000 security. Secondly, you could be punished for breaching the recognisance, and thirdly, you could be brought back before a judge of this court - probably me - and the sentence that I am passing today could be reviewed and you may be sentenced to a more severe sentence of imprisonment. If, however, you complete the 12-month period of the recognisance after having served your term of three months, without committing any further offence punishable by imprisonment, then that is the end of the matter.
26So the sentence effectively acts in part as a suspended sentence hanging over your head, with the possibility that you could be sentenced to a more severe sentence if you commit a further offence punishable by imprisonment. Do you understand that?
27OFFENDER: Yes.
28HIS HONOUR: Are you willing to enter into that recognisance?
29OFFENDER: Yeah.
30HIS HONOUR: The order will be drawn up and I'll ask Mr Halphen to check it and the prosecution to check it. I think they've probably already done it, have they?
31MR DARBY: I've drafted one.
32HIS HONOUR: Yes.
33MR DARBY: So I'll hand that to Mr Halphen.
34HIS HONOUR: Yes, if you wouldn't mind.
35MR HALPHEN: May I approach the dock, Your Honour?
36HIS HONOUR: Yes, indeed you can. Yes, has your client signed it?
37MR HALPHEN: Yes.
38HIS HONOUR: He has? Thank you.
39MR HALPHEN: It just needs to be dated, that's all.
40HIS HONOUR: I'll sign it.
41MR DARBY: Your Honour has to sign the front page and then Your Honour's associate has to sign the second page.
42HIS HONOUR: Yes, thank you. That order of course starts today. But for your plea of guilty I would have sentenced you to imprisonment for a period of 16 months with an order that you be released on recognisance after having served nine months.
43MR HALPHEN: As Your Honour pleases.
44HIS HONOUR: Are there any other matters?
45MR DARBY: No, Your Honour.
46HIS HONOUR: Thank you both.
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