Director of Public Prosecutions v Burnley (a pseudonym)

[2024] VCC 1214

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

DRUG AND ALCOHOL TREATMENT COURT

Revised

Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRED BURNLEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2024
DATE OF SENTENCE:	12 August 2024
CASE MAY BE CITED AS:	DPP v Burnley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1214

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW

Catchwords:            Negligently deal with proceeds of crime

Legislation Cited:   Sentencing Act 1991

Cases Cited:

Sentence:5 months’ imprisonment – sentence subsumed within custodial part of Drug and Alcohol Treatment Order per s 18ZO(2) Sentencing Act1991; Fine of $500

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Kambouropoulos	Office of Public Prosecutions
For the Accused	Ms C. Burgi	Victorian Legal Aid

HIS HONOUR: 

1I am not going to ask you what level of involvement you had in all of this, although I will say for the benefit of the lawyers, it is most unsatisfactory.  I am very much in the dark as to what has happened, but the summary which has been accepted by you as being an accurate summary tells me that an old woman was swindled out of a lot of money, and that money ended up mysteriously in your account and you moved that money somewhere else. 

2If you were not in the final stages of a Drug and Alcohol Treatment Order and doing well on that order, you would be going to jail today.  That is how serious I view this conduct.  Your conduct, even though it is not said by the prosecution that you made the phone call, is completely unacceptable and it is a very prominent type of offence in the community at the moment. 

3Courts need to really speak as one in saying just how deplorable this type of conduct is.  So, you have sat there, you have been listening, you have been watching me, I have seen you watching me, so, I know you have got the message: this is not good and I have hesitated over what to do.  I have decided to not interfere with your progress but by the smallest of margins.  I am not happy at all.

4So, for the reasons that have been ably articulated by your lawyer today, I am not going to do anything that is going to unduly threaten your prospects of graduation today, but this is going to go on your criminal record, which is now 37 pages long.

5If you come back before me or anyone like me, be well assured this will not go well for you. This type of behaviour is deplorable and whatever level of involvement you had in it does not do you any credit whatsoever.  That you would be involved in this type of offending whilst you are regularly appearing before a County Court judge on a Drug Court Order is just breathtaking to me, I must say. 

6But I accept that it is quite some time ago.  I accept that since then you have been doing very well on the order.  I do remember presiding over a number of review hearings with you.  I know something of your background, and I know that you have been doing well.  So, again, with a considerable degree of hesitation, I am going to allow His Honour Judge Higham to make his own decision as to what happens, but what I do today will not stand in His Honour’s way.

Sentence to be imposed

7So, on the charge of negligently dealing with proceeds of crime, you are convicted and sentenced to five months' imprisonment, and I order that pursuant to s18ZO(2) of the Sentencing Act1991 that this sentence is subsumed within the custodial part of the Drug and Alcohol Treatment Order imposed on 23 August 2022.

8I also impose pursuant to s 49 of the Sentencing Act 1991 a fine of $500 with regard to the offending.

9Take a seat.  I am not intending to make any orders with regards to breach, again, a decision I have made not unduly interfere with the discretion of His Honour with regards to the decision that will need to be made within the next 10 days.  I am not making any decisions in that regard.

10Are there any other orders that I need to make, Ms Kambouropoulos?

11MS KAMBOUROPOULOS:  No, Your Honour.

12HIS HONOUR:  Ms Burgi?

13MS BURGI:  No, Your Honour. 

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