Director of Public Prosecutions v Cardona
[2017] VSC 321
•8 June 2017
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0068
| THE DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| SARAH CARDONA | |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2017 |
DATE OF SENTENCE: | 8 June 2017 |
CASE MAY BE CITED AS: | DPP v Cardona |
MEDIUM NEUTRAL CITATION: | [2017] VSC 321 |
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CRIMINAL LAW – Sentence – Assist offender in relation to intentionally causing serious injury – Assisted boyfriend in relation to possible flight and disposal of evidence – Breach of bail conduct conditions – Early guilty plea – No prior convictions – Youthful offender – Drug addiction – Sentenced to total effective sentence of 42 days’ imprisonment (time served) and 12 month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | Solicitor for Public Prosecutions |
| For Ms Cardona | Mr S Gardner | Stary Norton Halphen |
HER HONOUR:
Sarah Cardona, you have pleaded guilty to one charge of assisting an offender, and one charge of contravening bail conditions. That offending occurred in the following circumstances.
The offence of assisting an offender arises out of your actions between 13 and 15 March 2016. At that time, you were in a relationship with Thanh Pham, the primary offender.[1]
[1]Mr Pham has yet to face trial in relation to these events. There is a suppression order prohibiting publication of his identity, or the allegations against him, until after the charges against him have been determined.
Around 8:00pm on 13 March 2016, Tye Wallis attended at the property where you were living with Mr Pham and some members of his family. Mr Wallis believed that Mr Pham owed him money, and had destroyed or sold some of Mr Wallis’s property while Mr Wallis was in prison.
You and Mr Pham walked into the garage area, where Mr Wallis was standing. Mr Wallis was unarmed. Mr Pham was holding a handgun.
Mr Wallis grabbed Mr Pham, pushed him up against a brick wall, and disarmed him.
Mr Wallis then told Mr Pham to go inside to find some of his possessions. A few minutes later, Mr Pham returned to the garage doorway with a sawn off .22 calibre rifle. He began firing at Mr Wallis, who fell to the floor after being hit. Mr Pham continued to shoot at Mr Wallis, whilst he was on the floor.
Mr Wallis realised he had been shot. He got up and ran, down the driveway and away from the property. Mr Pham continued firing at him as he fled.
You witnessed the shooting, and were aware that Mr Wallis had been hit, although you were unaware at the time of the extent of his injuries.
Mr Pham took the rifle and drove off in his car. You left separately in your own car.
Mr Wallis was taken to hospital by a friend. He sustained six gunshot wounds: two to the abdomen; two to the upper right leg; one to the right bicep; and one to the right hand. He received surgery and other treatment for his injuries, which were life-threatening.
After the shooting, you went with Mr Pham to visit his friend, Person A, who you did not know. Mr Pham and A had a conversation in Vietnamese, which you could not understand.
Over the next two days, you exchanged a number of SMS messages with A, as Mr Pham did not want to use his own phone. You were passing on messages between Mr Pham and A.
In early messages, A told you that the victim was in hospital. He said Mr Pham could leave all his weapons with him, and that he was going to try to help Mr Pham leave Victoria that night. A told you to erase his SMS messages.
In the early hours of the following day, you texted Mr Pham’s brother, trying to find out whether anyone had come past the property after you and Mr Pham had left.
You also spoke to the partner of Mr Pham’s brother, and arranged to meet her and Mr Pham’s brother at a fast food outlet carpark. There, you got into their car and asked them to drive you back to Mr Pham’s property, as you did not want your car to be seen there. At the property, you collected some of your possessions and some of Mr Pham’s possessions, before you were driven back to where your car was parked.
Also on the 14th, you exchanged SMS messages with A, who had been unable to get Mr Pham out of Victoria. You asked A not to tell people what Mr Pham had done.
By further SMS messages later that same day, A informed you that Mr Wallis had been seriously injured; he understood Mr Wallis had been shot five times. He also gave you directions as to how Mr Pham should hide the gun.
You were first arrested in relation to these matters on 4 April 2016. At that time, you gave a “no comment” record of interview in relation to the shooting, and refused to assist investigators by providing the current location or telephone number for Mr Pham, or the passwords for your mobile phone. Immediately after you were released from custody later that day, you called Mr Pham.
You were arrested and interviewed for a second time on 4 June 2016. Mr Pham had been arrested in relation to the shooting a couple of weeks earlier. This time, you gave a full account of the shooting, and your role in assisting Mr Pham afterwards. You were then charged in relation to that offending.
At the completion of the committal hearing on 2 May 2017, you were committed to stand trial on the charge of assisting Mr Pham in relation to attempted murder. Thereafter, negotiations occurred, which ultimately led to your pleading guilty two weeks later to the current charge of assisting Mr Pham in relation to intentionally causing serious injury. I treat this as an early plea.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea and its utilitarian value.
It was not suggested that you did anything to encourage or aid Mr Pham in the actual shooting of Mr Wallis. Rather, your assistance was limited to doing the various things I have described, with the purpose of impeding Mr Pham’s apprehension and prosecution.
Although you had used heroin and ice earlier on the day of the shooting, and on the next two days, you had not used more than your usual daily amount at the time. You knew that what you were doing in assisting Mr Pham was wrong. However, you acted out of a misplaced sense of loyalty to the man with whom you were in a relationship, and on whom you were dependent practically (he provided you with accommodation and drugs), as well as emotionally.
The maximum penalty for assisting an offender in these circumstances is 5 years’ imprisonment.[2]
[2]Crimes Act 1958 s 325(4)(b).
After your first interview on 4 April 2016, you were charged, and then granted bail, in relation to some unrelated matters. It was a condition of your bail that you report to your local police station on two specified days per week. Between 7 April and 2 June 2016, you failed, without reasonable excuse, to comply with that requirement on 17 separate occasions. That constitutes the charge of contravening conduct conditions.[3]
[3]Contrary to s 30A(1) of the Bail Act 1977. This summary charge was uplifted to this court under s 145 of the Criminal Procedure Act 2009.
It is not disputed that you failed to comply with your reporting condition because of your heroin addiction.
The maximum penalty for contravening conduct conditions is 3 months’ imprisonment or 30 penalty units.
I turn to consider your personal circumstances.
You were born in October 1991, in Australia, to parents who had migrated from El Salvador. You have two older half-brothers from your mother’s previous relationship. Your parents separated when you were two years old, and your father disappeared completely from your life when you were about six.
One of your half-brothers developed a severe heroin addiction during your childhood, which disrupted your family life in a number of ways.
When you were 13, you started using cannabis and binge drinking. You started using ecstasy at parties when you were 14.
You left home when you were 15, to move in with your then boyfriend, a 21 year old drug user and dealer; that relationship lasted 5 years. Unfortunately, that was the start of a pattern of dating unsuitable older men.
Notwithstanding your drug use, you managed to complete year 12 without significant problems at school. After school, you successfully completed several courses. You were consistently employed in retail and administrative jobs between the ages of 15 and 20 (at one stage even holding a managerial position), until you started using heroin. Your drug consumption soon escalated to daily use of heroin and ice. After the age of about 20, you were unable to hold down jobs due to your drug addiction. Your addictions also led to you losing the house that you had bought when you were working.
Between the ages of 20 and 23, you were in a relationship with a man who was seven years older than you; he was very controlling and jealous, and would send you to buy drugs on his behalf. You stayed with him, even though you felt very depressed during the relationship.
Your next relationship was with Mr Pham. He was nine years older than you, and also a drug dealer. You stayed with him for about 5 months, even though there were conflicts in the relationship, including conflicts about his purchasing of guns. That relationship ended shortly after this offending.
Your most recent relationship is with a 34 year old drug user, who is currently remanded in custody. You are ambivalent about ending that relationship, even though he has been physically violent towards you.
It is apparent from a psychological report filed on your behalf that you do not yet have good insight into the nature of your drug addiction. Nor do you really understand how becoming romantically involved with older, controlling men, who have also been drug dealers, contributes to your drug addiction. Your father’s departure in your early childhood seems to have left you feeling vulnerable and insecure, which has contributed to your failing to develop independence and responsibility. You exhibit features of dependent personality disorder, which contributes to your choosing relationships in which you stay and suppress your own needs, even when it is harmful to your own well-being.
At the time of this offending, you were 24 years old and had no prior convictions. I am sentencing you as a relatively youthful first-time offender.
However, there are some subsequent matters, which are relevant to assessing your prospects of rehabilitation. Arising out of your arrest on 4 April 2016, you were charged with a single event cocaine trafficking offence, and with being in possession of a prohibited weapon (a folded knife). On 10 September 2016, you were charged with possessing heroin and breaching bail. All of those matters were dealt with together in late November 2016, when you were sentenced to a community correction order (“CCO”) for 12 months. Conditions of the CCO included requirements to undertake substance abuse treatment, and to perform 50 hours of community work.
Although you attended a few initial appointments, and completed 8 hours of community work, you soon stopped complying with the requirements of the CCO. That seems to have happened because you did not take the CCO seriously at the time, and you had relapsed into heroin use. Breach proceedings have been commenced in relation to that CCO, and will be dealt with by the Magistrates’ Court later this year.
You were charged with trafficking heroin and ice on 8 February 2017, and some proceeds of crime charges. Those charges have yet to be dealt with by the Magistrates’ Court.
In February 2017, you were assessed for your suitability to undertake a residential program at The Hader Clinic, a private provider of treatment for substance abuse issues. It was a condition of the bail which was granted on 11 February 2017 that you attend The Hader Clinic. Unfortunately, you found the detoxification stage too difficult, and left the clinic after a little over one week.
In late March 2017, you successfully underwent a 7 day home detoxification program. Then, on 29 March 2017 you received a Naltrexone implant. The implant assists in recovery by inhibiting the opiate receptors in the brain; that greatly reduces physical cravings, as well as inhibiting the effects of any opiates which are used. The blocking effect lasts for somewhere between 3 and 6 months after implantation.
Although you have not used heroin since you have had the implant, you have admitted to continuing to use ice until you were remanded in late April 2017.
You have undertaken some courses and programs since you have been in custody, including attending Narcotics Anonymous meetings. It is very important that you continue to participate in courses and programs, to assist you to overcome your drug addiction, and to build self-confidence and maturity.
In order to assist me to determine the appropriate sentence, I requested Corrections Victoria to assess your suitability for a further CCO. In a report dated 7 June 2017, the assessing community corrections officer assessed you as suitable for a CCO, with conditions including participation in drug and mental health treatment and rehabilitation. You were described as having a medium risk of re-offending. Although the assessing officer was aware that you had breached your first CCO, she assessed you as suitable for another one because you are on the Naltrexone implant, and because you seem motivated to try to comply with and complete the CCO.
You are fortunate that your mother is still supportive of you, and is prepared to have you live with her for the duration of the CCO that I propose to order.
Your prospects of rehabilitation are inextricably linked with your drug addiction, and with addressing the underlying psychological issues which I have discussed. It is in the interests of the community, as well as your own interests, that you be given a chance to address these issues under the supervision of Corrections Victoria.
There nevertheless remains a need for punishment and general deterrence, which is reflected in the sentence I am about to impose.
I have explained the conditions of the proposed CCO to you, and you have acknowledged that you understand and accept those conditions.
For assisting Mr Pham with a serious indictable offence, namely intentionally causing serious injury, I sentence you to 42 days’ imprisonment and a 12 month community correction order. That is the base sentence.
For contravening your bail conditions, I sentence you to 7 days’ imprisonment. I order that that sentence be served wholly concurrently with the base sentence.
I declare that the period to be reckoned as already served under this sentence is 42 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
I further declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 4 months’ imprisonment.
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