Director of Public Prosecutions v Bailey

[2024] VCC 2142

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00166

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BAILEY

---

JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May, 12 August & 12 November 2024
DATE OF SENTENCE:	4 December 2024
CASE MAY BE CITED AS:	DPP v Bailey
MEDIUM NEUTRAL CITATION:	[2024] VCC 2142

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW - Sentence

Catchwords:              Negligently dealing with proceeds of crime – failing to provide information or assistance for data under a warrant – early plea of guilty – mental health – substance use – residential rehabilitation – deferral of sentence

Legislation Cited:      Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102; Akoka v The Queen [2017] VSCA 217; DPP v Newton [2021] VCC 603; DPP vMiller [2018] VCC 473; DPP v Chen [2022] VCC 2341; DPP (Cth) v Tan [2020] VCC 1346; DPP v Isagbah [2020] VCC 435; The Queen v. Tiburcy & Ors. [2006] VSCA 244; Boulton v The Queen [2014] VSCA 342

Sentence:                  Community Corrections Order for a period of 2 years and 3 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr David Cordy	Office of Public Prosecutions
For the Accused	Mr James McQuillan (plea) Jack Dalziel (sentence)	Ellinghaus & Lindner

HER HONOUR:

1Daniel Bailey, on 31 January 2024, you pleaded guilty on Indictment N10578271 to one charge of negligently dealing with proceeds of crime and one charge of failing to provide information or assistance for data under a warrant.

2You also consented to a summary charge of committing an indictable offence whilst on bail being heard by this Court and you pleaded guilty to that charge. You admitted your prior criminal history, which was 'red pen amended' to remove the word 'armed' from the 'armed robbery' entry dated 26 March 2013, that was dealt with at the Melbourne County Court.

3

Your arraignment and plea of guilty occurred before His Honour Judge Tiwana. His Honour adjourned your matter to allow you to continue with Harmony House residential treatment program. You commenced this 90-day program on

12 January 2024 and your plea was ultimately heard before me on 13 May 2024 at Bendigo.

Circumstances of offending

4The facts upon which you are to be sentenced are contained in the prosecution opening for plea dated 24 October 2023. This document was read and tendered to the court. What now follows is a summary of your offending.

5

On 13 May 2021 police commenced an investigation into the trafficking of large commercial quantities of cocaine and methylamphetamine. You were not the primary target of this investigation. In November 2021 police commenced an investigation into you and your association with the trafficking enterprise. In

mid-February 2022, you relocated to Mackay in Queensland and the investigation stalled.

6On 21 March 2022 police received information that your co-accused, Geoffrey Bryon had flown to Mackay, Queensland with the intent of driving back to Victoria with you. The co-accused was using a mobile phone which was on the Optus network. Police established a Location Based Search (LBS) on the phone. At about 3:20 pm, the LBS showed that the co-accused's phone was southbound on the Bruce Highway, Serina, Queensland. This corroborated the information that had been provided to police. The location of the co-accused's phone was monitored until it settled in Gin Gin, Queensland.

7At approximately 8:00 am the following morning, 22 March 2022, a member of the Queensland police went to the Country Comfort Inn, Mulgrave Street, Gin Gin and spoke to the owner of the motel. The owner told police that a male fitting your description checked into the motel using the name 'Daniel Bailey'. You provided documents in the form of vehicle transfer papers for a black 2001 Holden Statesman. You stated that you had recently purchased the vehicle in Rockhampton. Copies of the documentation provided by you to the motel owner were photocopied and later provided to police.

8At about 4:00 pm that afternoon, you and your co-accused were intercepted by Queensland Police north of Goondiwindi after the co-accused was detected speeding. Police activated their Body Worn Camera during the intercept. You again claimed ownership of the black Holden Statesman and produced the transfer paperwork. The co-accused was issued a penalty notice for speeding before the two of you continued south on the Bruce Highway, spending the night in Coonabarabran.

9The next day, 23 March 2022, you and the co-accused continued south. At about 5:30 pm, the two of you approached the Victorian and New South Wales border where a checkpoint had been established to intercept you and the co-accused. Initially, the co-accused drove through the checkpoint and did not stop. Police then placed a car in front and behind him to make sure that it was clear that he was to stop his vehicle. The co-accused applied the brakes heavily, causing the police vehicle behind him to collide with the rear of your car, which in turn collided with the police vehicle in front. No persons were injured.

10The black Holden Statesman was subject to two search warrants. A significant amount of Australian currency was located secreted throughout, including a very large amount hidden under the rear passenger seat.

11Cash was located in the following locations: In a suitcase on the rear seat - $4,135, a map pocket of the rear of the driver's seat - $3,080, under the rear seat - $201,165, in a bag in the boot - $15,763.40, in the centre console and glovebox - $40, on your person - $1,685.10. The total amount located was $253,303.50 (Charge 1 – Negligently dealing with proceeds of crime).

12At the completion of the search, police made a demand that you provide your PIN code to any of electronic devices in the vehicle, pursuant to an order made under s465AA of the Crimes Act. Despite being informed that it was an indictable offence punishable by imprisonment to fail to comply with such an order, you failed to provide the information. You stated you did not have a phone (Charge 2 – Failing to comply with an order to provide information or assistance). A mobile phone was subsequently located on the passenger seat of the vehicle. The same demand was placed on the co-accused, who complied.

13The black Holden Statesman was towed to the Echuca police station under police escort, and you and your co-accused were arrested and taken to the police station for interview. At the time of arrest, you were on bail to appear at Bendigo Magistrates Court on 7 April 2022 for Dangerous Driving Whilst being Pursued by Police (Related summary offence 2 – committing an indictable offence whilst on bail).  I note that matter was subsequently dealt with and you received a $3,000 fine, as I understand it.

14The co-accused was charged and bailed to a filing hearing at the Bendigo Magistrates’ Court on 28 March 2022. In September 2024, your co-accused received a fine for a charge dealt with in the Magistrates’ Court.

15You remained mute during your record of interview and refused to comment on any allegations put to you or provide any explanations to the origins of the money located in the vehicle.

16The co-accused gave an account of his recent movements and dealings with you, including: that you paid for him to fly to Mackay and then to drive you back to Victoria, and that he would be paid to do this; once he got to Mackay, he called you, and you told him to make his way to Airlie Beach; he got a taxi to Airlie Beach where he spent the night before beginning the drive to Victoria on 21 March in the black Holden Commodore; he had no knowledge of the cash in the vehicle and would not have agreed to drive the vehicle if he had known it was in the car; he could not explain how the money came to be in the car; and he declined the opportunity to make a formal statement in relation to the matter.

17Following your arrest and subsequent release on bail, lawfully installed police listening devices captured numerous conversations involving yourself and the primary targets of the trafficking investigation. Some of the conversations captured relevantly include; talk of you driving to Victoria with $200,000 and getting 'pinched' with all the money and how this is a problem; discussion about the car and how 'they' found 'it', where you explained that no one in the world knew you were coming; and discussion about the risk you took and how your conduct makes 'us' or 'our people' look weak.

18These other people were subsequently charged with trafficking large commercial quantities of drugs and dealing with proceeds of crime and those matters, as I understand it, are currently before the court.

19The prosecution case is that the money seized from your vehicle and in your possession are proceeds derived from drug trafficking activities.

20You were arrested on 23 March 2023 as I have said, you were charged and remanded in custody for a filing hearing on 24 March 2022. You were granted bail on 28 March 2022 and have accrued six days of pre-sentence detention.

Nature and gravity of the offending

21In assessing the nature and gravity of your offending, the applicable maximum penalties are an important yardstick as to the seriousness with which the offending should be viewed. The charge of negligently deal with proceeds of crime and the charge of failing to provide information or assistance for data under a warrant are both punishable by a maximum term of five years' imprisonment. The charge of committing an indictable offence whilst on bail is punishable by 30 penalty units and/or a maximum of three months' imprisonment, I note this offence has now been repealed.

22Further, it is important to outline the statutory scheme that applies to section 194 of the Crimes Act,[1] being the charge of negligently dealing with proceeds of crime. This section creates three offences of descending seriousness. Firstly, the offence of knowingly deal with proceeds of crime, which carries a maximum penalty of 15 years' imprisonment. Secondly, recklessly dealing with proceeds of crime, which carries a maximum penalty of 10 years' imprisonment. Lastly, the charge you face, which is negligently dealing with proceeds of crime, which carries a maximum penalty of five years' imprisonment.

[1] Crimes Act 1958 (Vic) s194.

23The Explanatory Memorandum for the Crimes (Money Laundering) Bill stated

New s.194(4) provides that a person must not deal with proceeds of crime being negligent as to whether or not it is proceeds of crime. Criminal negligence is not the same as civil negligence. The lack of care which may constitute civil liability will not be enough to make a person criminally responsible under the principles of criminal negligence developed by the courts at common law. To establish criminal negligence the prosecution must prove that the accused person consciously and voluntarily dealt with the property, although he or she failed to realise it was proceeds of crime, and this occurred in circumstances which involves such a great falling short of the standard of care which a reasonable person would have exercised, and such a high risk that the property was proceeds of crime, had the accused person's conduct that it merits criminal punishment.[2]

[2] Explanatory Memorandum, Crimes (Money Laundering) Bill (Vic), 3.

24This provision makes clear that the proceeds of crime charge you face does not involve any subjective mental state such as your knowledge or awareness of any risk that the property was in fact proceeds of crime. The charge to which you have pleaded guilty deals with the circumstances where the offender failed to realise that what was dealt with was proceeds of crime, or failed to recognise a substantial risk of that.

25In your case there is clear evidence that the origin of the money is associated with serious drug trafficking activity. The amount involved is not insignificant, being a total of $253,303.50. You are to be sentenced on the basis that you failed to realise the money in your car was in fact proceeds of crime, and, further, that you had no awareness of there being a substantial risk the money was the proceeds of crime. You are not to be sentenced as the participant in any of the drug trafficking behaviour that involved other offenders.

26To be clear, I must sentence you on the basis of the offence to which you have pleaded guilty, that is you dealt with the money in your car in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that the property was proceeds of crime, that your conduct merits criminal punishment. 

Personal circumstances

27You are currently 37 years of age. You were born and raised in the Bendigo area with your parents and two younger siblings. Your father was a career policeman, and your mother worked in the postal service.

28You had a very troubled childhood, with your father being an overly violent person who would direct serious violence to both you and your mother. Your father's behaviour was often unpredictable and would involve manipulation.

29Your mother has chronic alcohol issues. When you were growing up she would often be incoherent by evening. This meant you and your siblings would need to look after yourselves. Your mother also had a significant gambling problem, often using the family's food money, this would lead to your mother being further severely and violently abused by your father. It was within this environment that you spent the first 16 years of your life, that is until your parents separated.

30Not only did you experience and witness severe family violence but you were also subjected to other abuse.

31At school, you struggled with literacy, you were disruptive and often subject to targeted violence from other students. You started work at age 12, working in a local butcher shop to help support your family. At times you would steal food in the hope that your mother would avoid being assaulted by your father. You left school in Year 9 and proceeded to TAFE training as a bricklayer. From age 15 you worked as a bricklayer until you were remanded at age 23. At other times in your life you have returned to work as a butcher and have owned and managed a successful trucking business.

32Currently, you have returned to bricklaying and operate your own successful bricklaying business. In this role you employ three sub-contractors and have the potential to employ more. Tendered on your behalf were two letters from Damien Bell, the managing director of Holtondo Homes, one dated 29 January, 2024 and the other 8 November 2024. The latter confirms that during the course of this year your business has bricked up five homes and there are another two booked for completion by the end of the year. Mr Bell describes that you conduct your business with professionalism and your work is timely and of a high standard.

33In terms of drug use, you first experimented with cannabis around age 15, which involved binge use from that time. When you were 20, you began to use cocaine and ice. Your use of these drugs would take the form of one-to-two-day binges and was moderated by the occasional use of Valium. Your drug use has persisted for much of your adult life punctuated by periods of abstinence. One of these was enforced abstinence by virtue of a term of imprisonment. Upon your return to the community, you were able to maintain sobriety for a significant period of time and also maintain compliance with conditions of parole.

34Over time you relapsed into the use of cocaine and at times ice, that typically saw you engage in weekly binges. I understand that at the time of your arrest for drug and firearm offences in 2019 you were abusing ice on a daily basis. You were again remanded in custody and ultimately sentenced to a combination penalty involving your release on a community correction order that you successfully completed. In late 2023 early 2024 your substance abuse problems reflected heavy binge use of alcohol.

35In addition to drug and alcohol use, you have also struggled with problem gambling from around the age of 18. This gambling has been enabled by legitimate and illegitimate means and again has spanned your adult life. You have had periods of control, in terms of both drug use and gambling, but you have not been able to maintain abstinence and sustained control in the long term. It is not clear to me the extent of your use in the lead up to this offending however I accept that your addiction to drugs and gambling has plagued you for many years and invariably has led you to offend.

36

During your life you have had several intimate relationships, the most significant of which produced your son Charlie, who is now four to five years old. Although you have separated from Charlie's mother you enjoy a positive working relationship and you share custody of Charlie on a 50/50 basis with your

ex-partner. At this point in time, the agreement is week on week off. Your son is a powerful motivation for your rehabilitation.

37Your counsel tendered two psychological reports and one psychiatric report, on your plea. The reports from Dr Aaron Cunningham and Dr Lester Walton were historical in nature. The most current report was from Mr Luke Armstrong, consultant psychologist. Mr Armstrong's biography indicates that he has a significant background in addiction treatment, having worked with both Odyssey House and Windana society for many years. This report was dated 24 January 2024 and was based on five hours of face-to-face contact with you.

38

Mr Armstrong provided a detailed account of your background circumstances. Further, he undertook psychological testing and assessment. It was

Mr Armstrong's opinion that you are a dual diagnosis client. He considered your drug use and cavernous gambling addiction would have aggravated your offending in early and later adulthood. Further, he considered your personality disorder would have its foundations in your childhood experience and that these mental health conditions have prevented you from engaging and maintaining healthy relationships. In summary, it was Mr Armstrong's view that you present with Personality Disorder (Mixed Features), features of Post Traumatic Stress Disorder, Stimulant Use Disorder (and as at January 2024 he described this to be in tenuous remission), and Alcoholic and Gambling Use Disorder.

39He considered that you used addiction as a form of self-mediation and that although your addiction may not have been stereotypical, it has nonetheless been cyclical and recurring like your mood disturbances. Mr Armstrong assessed you as motivated to engage in treatment with insight that you cannot move forward without intensive treatment engagement. It was his recommendation that you engage in an inpatient rehabilitation program such as Harmony House, that you attend NA or AA meetings at least twice weekly, that you undertake psychological treatment, that you have an AOD support worker and that you continue outpatient treatment for at least a further 12 months.

40Mr Armstrong also advanced the opinion that:

In anticipation of a custodial sentence, and in the execution of this sentence I have no doubt Mr Bailey's trauma symptoms will be reactivated causing a significant deterioration in his mental health. This would make a sentence of imprisonment far more arduous for your client than it would for an individual who does not have his complex mental health profile.

I accept each of the opinions of Mr Armstrong. Further, I accept the submission of your counsel that Verdins principles 5 and 6 are enlivened in your case.[3]

[3] R v Verdins [2007] VSCA 102.

Rehabilitation

41When you first came before me, you had completed the 90-day residential program at Harmony House and had successfully met all the requirements of that program. Mr Carlo La Marchesina, the clinical director and manager of Harmony House, gave evidence at your plea. It was his evidence that you were a committed and exemplary participant whilst in the residential rehabilitation. Further, he observed that you had committed to Harmony House as an outpatient and that you had been involved in ongoing compliance with the program whilst in the community.

42As part of your treatment at Harmony House you engaged in weekly counselling sessions with Heath Richardson, drug and alcohol counsellor. Mr Richardson provided a letter to the court that indicated you had attended a combination of group process therapy, one hour psychoeducation groups four days per week. In addition, you attended 12 individual sessions of counselling. Mr Richardson was impressed at your willingness and engagement in treatment and detailed that you had engaged with therapy on a range of different topics and issues.

43In response to your efforts, whilst being mindful of your criminal history and periods of abstinence, I deferred your matter, to see if you could maintain your positive progress. The deferral period has now lasted approximately seven months and it is clear that you have made significant, and I hope, lasting change. I reviewed your deferral on 12 August and 12 November of this year. I received updates from Harmony House, both written letters and evidence from Mr La Marchesina, which make clear your continued progress whilst supported by that program. At the most recent review of deferral in November, Mr La Marchesina advised the court that you have become an unofficial representative of Harmony House and have been providing support and guidance to other participants and those in the community.

44

In addition to the six days you spent in custody, Mr McQullian your counsel, relied on the fact that you had also spent the 90 days in inpatient treatment. Necessarily, this time had restrictive and punitive aspects in addition to its rehabilitative focus. It was submitted that I should take this into account pursuant to the principles in the case of Akoka v The Queen.[4] Although this time does not represent or equate with

pre-sentence detention, I agree it is time that should be taken into account as part of the instinctive synthesis of sentencing and also as a means to encourage others in your position to participate in such programs.

[4]Akoka v The Queen [2017] VSCA 217.

45I have also taken into account your progress on the deferral of sentence. You have not re-offended and have demonstrated a very positive commitment to rehabilitation that in my view should be embraced and encouraged.

Plea of guilty

46Your counsel also relied upon your early plea of guilty noting that your matter resolved in the Magistrates Court after several committal mentions. In this sense your plea has facilitated the course of justice and has spared the Court the time and cost of a trial. These factors permit me to allow a discount for your plea of guilty.

47Further, given the timing of your plea and the fact that your case resolved at a time albeit toward the tail end of the court backlogs caused by the COVID-19 pandemic I will allow some further amelioration of your sentence.

Sentencing principles

48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  Each of these factors is applicable in your case.

49Given the seriousness of your offending, general deterrence is a prominent sentencing factor. Mr Cordy for the prosecution, submitted this should be the primary sentencing consideration in your case. He submitted the only appropriate sentence given the seriousness or your offending and in view of your prior history was one of a head sentence and a non-parole period.

50Your counsel referred to the cases of Newton and Miller,[5] both decisions from this court. He submitted that your offending involved the lowest mens rea of the four proceeds of crime offences and that in all the circumstances of your case a community correction order would be the appropriate penalty. This he submitted was so when consideration was given to the six days of pre-sentence detention, the Akoka time referable to your stay in Harmony House and the evidence of your performance on deferral and significant reformation.

[5] DPP v Newton [2021] VCC 603; DPP vMiller [2018] VCC 473.

51I have reviewed the cases of Newton and Miller.[6] I have also had regard to the cases of Chen, Tan and Isagbah all decisions from this court.[7] These cases have been useful in distilling the sentencing tariff and the principles that apply in cases such as this, however each case must be dealt with according to the particular circumstances it presents. Further, I have had regard to the sentencing statistics for the crime of negligently deal with proceeds of crime. I recognise the limitations with statistics, however again I have been guided by the sentencing landscape they expose.

[6] Ibid.

[7] DPP v Chen [2022] VCC 2341; DPP (Cth) v Tan [2020] VCC 1346; DPP v Isagbah [2020] VCC 435.

52I am mindful that crimes such as yours facilitate serious criminal offending, albeit that you were very much on the periphery. I take into account the observations made as to the lack of mens rea required for this charge, I also take into account that this matter has been hanging over your head for over two and half years and you have not re-offended in this time. You have used this time to demonstrate your rehabilitation. As Maxwell P of the Court of Appeal as he then was said in the case of R v Tiburcy, 'I consider this court should support sentencing judges who recognise and reward efforts at rehabilitation. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders.'[8]

[8] The Queen v. Tiburcy & Ors. [2006] VSCA 244 [16].

53In my view the sentencing factors of general deterrence, just punishment, specific deterrence and denunciation, can be addressed by the imposition of a community correction order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[9]

[9] Boulton v The Queen [2014] VSCA 342.

54Although protection of the community from your offending remains a relevant consideration, in my view this is best achieved by your continued rehabilitation. Not only have you reformed yourself, but you have had a positive influence on others who have succumbed to the scourge of addiction. In this way, you are giving back to the community in a very valuable way.

55I take into account the sentencing guidelines referred to in section 5 of the Sentencing Act,[10] where relevant to your case.  Ultimately, the sentencing exercise requires I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[10] Sentencing Act 1991 (Vic).

56The principles of totality, proportionality and parsimony are also very important considerations. They require me to make sure that I impose an appropriate sentence in line with the total criminality and gravity of your offending and that I do no more than is necessary to punish you. I have taken these principles into account in fixing the length and structure of the community corrections order I will now impose.

57On 12 November 2024, I ordered a pre-sentence report to assess your suitability for a community correction order. You have been assessed by Corrections and they have determined you are a suitable candidate for such an order.

58In the circumstances I intend to impose such an order.

59Mr Bailey you are convicted of each of the three offences before the court. I order that you perform a community correction order for a period of two years and three months. The conditions of the community correction order are that you must:

a)Attend for supervision;

b)Perform 200 hours of unpaid community work;

c)Submit for assessment and treatment for alcohol and drug abuse;

d)Submit for assessment and treatment for mental health; 

e)I am also going to order a condition for judicial monitoring.

60Now Corrections did not actually recommend judicial monitoring in their assessment report, but I feel it is the duty of the court to monitor your progress, so I will see you back here in six months' time.

61I have done that because I am interested to see how you are going and I do want to encourage you to maintain the rehabilitation that you have commenced.  I am fairly confident that you will and I am confident that you will complete the correction order that I have imposed, given your past record in that regard.

62The judicial monitoring can be done via Webex if necessary, or you can appear  here in court.  Sometimes people appear at the Community Corrections Office with their corrections officer.  The date that I propose for the first judicial monitoring is 4 June 2025 at 10 am and that date will appear on the community correction order document that you get..

63In relation to the 200 hours of unpaid community work I will offset 100 hours of this condition with hours accrued during rehabilitative programs. That means if you do 100 hours of rehabilitation that will come off the 200 hours, so that will leave you with 100 hours of unpaid community work.

64In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next two years and three months. So that means that this offence in total will have been hanging over your head for almost five years.  So whilst suspended sentences have been done away with, and this is not a suspended sentence, it is a sentence that hangs over your head.    You will be under the supervision of Corrections and you will be under the supervision of this court effectively.   If you breach the order, so if you commit another offence, if you do not comply with the conditions, all the standard conditions, and special conditions, you will be brought back before me, and it is likely that I will have to re-sentence you and that could involve sending you to gaol. 

65You are required to advise your supervising Corrections office of any change of address where you are living or working within two clear working days, and it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of Community Corrections and you cannot leave the State of Victoria without prior permission.

66You need to report within two working days to your nearest Corrections Office and that will be Bendigo Community Corrections Services, and you must report there by 4 pm on Friday 6 December 2024. 

67So I can only place you on a community correction order if you agree. So, firstly, do you understand what is involved in such an order?

68OFFENDER:   Yes.

69HER HONOUR:  And do you agree to doing such an order?

70OFFENDER:  Yes.

71HER HONOUR:  All right. 

72Pursuant to section 6AAA of the Sentencing Act,[11] if you had pleaded not guilty and been found guilty, the sentence I would have imposed is a term of 18 months' imprisonment with a nine month non-parole period.

[11] Ibid s 6AAA.

73I also intend to make the forfeiture order sought by the prosecution.   

74HER HONOUR:  Thanks very much everyone and good luck with the order, Mr Bailey, and I'll see you in June of next year.

75OFFENDER:  Thank you.

- - -