Director of Public Prosecutions v Heidenreich
[2022] VCC 1750
•12 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00587
CR-22-01566
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUCHITRA HEIDENREICH |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 October 2022 | |
CASE MAY BE CITED AS: | DPP v Heidenreich | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1750 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: 12 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | |
| For the Accused | Mr Collins |
HIS HONOUR:
1Suchitra Heidenreich, you have pleaded guilty to the following charges, which carry the following maximum penalties:
CR-21-00587 – Indictment K10830164
No.
Charge
Maximum Penalty
1
Attempting to obtain property by deception, contrary to ss81(1) and 321M Crimes Act 1958
5 years' imprisonment
2 to 8
Obtaining property by deception, contrary to s81(1) Crimes Act 1958
10 years' imprisonment
3
Theft, contrary to s74(1) Crimes Act 1958
10 years' imprisonment
CR-22-01566 – Indictment L12064785
1 and 2
Obtaining property by deception, contrary to s81 Crimes Act 1958
10 years' imprisonment
Summary Charge 5
Commit indictable offence on bail, contrary to s30B Bail Act 1977
30 penalty units or 3 months' imprisonment
2You have no prior criminal convictions.
Circumstances of Offending
3The Crown tendered the summary of prosecution opening as Exhibit A. A brief summary of your offending is as follows - I am sorry. Before I go any further I forgot to ask both counsel, have you seen the CCO assessment report?
4MR COLLINS: Yes. I have that, Your Honour, thank you.
5HIS HONOUR: Mr Teo.
6MR TEO: Yes, Your Honour.
7HIS HONOUR: Do you have anything to add to your submissions?
8MR COLLINS: I don't have anything to add, thank you, Your Honour.
9HIS HONOUR: Mr Teo.
10MR TEO: No, Your Honour. The only thing I would say is that it is promising that the accused is apologetic to the victims in the CCO report.
11HIS HONOUR: Thank you. I turn back to the sentencing remarks. The Crown tendered the summary of prosecution opening as Exhibit A, a brief summary, and it is as follows.
The First Indictment
12In 2017 you were in a relationship with Justin Richards and you lived in Box Hill. Charge 1 is a charge of attempt to dishonestly obtain property by deception. You deceptively used Mr Richards' sister's PayPal account in an attempt to purchase an Apple iPad from JB Hi-Fi. The transaction was cancelled before you could complete it.
13Charge 2 relates to obtaining property by deception. You used Mr Richards' sister's PayPal account to purchase a breast pump online, from Chemist Warehouse.
14Charge 3. On 22 May 2018 you were at the house of your friend Soh Tan. You reached into her bag and stole her purse containing various identification and bank cards.
15Charge 4. On 23 May 2018 you opened a National Bank account in the name Soh Tan. You used Ms Tan's previous address and your mother's mobile telephone number to open the account. You then falsely advertised goods for sale on Facebook marketplace. Ticha Mattingley paid $648 to the false account for goods which you advertised, but which were not supplied.
16Charge 5. On 22 June 2018, the complainant Wongbah transferred $2,000 to the false account when you deceptively offered share stocks for sale but which were not supplied.
17Charge 6. On 2 July 2018 Wongbah transferred $1,500 to the false account for a gold bracelet which you advertised but did not supply.
18Charge 7. On 4 July 2018 Niamphoon transferred $1,500 to the false account for a gold bracelet which you advertised but did not supply.
19Charge 8. On 22 September 2018 Cahroen transferred $920 to your account for a handbag which you advertised but did not supply.
20Wongbah and Niamphoon both reported the matters to the police in July 2018. You were arrested on 30 July 2018. In a search of your house police found bank cards belonging to Soh Tan. You made a 'no comment' record of interview.
21You then committed further offences whilst on bail for these matters, and you were charged with the related offences, committing an indictable offence on bail, and they are the second indictment.
The Second Indictment
22On 14 May 2020, by deception you caused a second hand goods dealer to send you a Chanel handbag valued at $5,533 by falsely providing a third person's PayPal account details.
23On 19 May 2020 you deceived another second hand dealer to send you three handbags valued at $14,000 by falsely providing a third person's PayPal account details.
24You were arrested on 20 August 2020. You provided a 'no comment' record of interview.
25There was a contested committal. At or after the committal, negotiations resulted in a significant reduction of the charges. You then pleaded guilty to the remaining charges.
Objective gravity and moral culpability
26I turn then to the objective gravity and moral culpability of the offending. The parties agreed that the value of loss incurred by your deceptions on the first indictment totalled $7,500. The deceptions incurred on the second indictment totalled $18,500. Overall, however, the loss totalled $13,000 as a refund of $5,500 was made to one of the deceived parties.
27Your offending on the second indictment is made more serious by the fact that you committed those offences whilst on bail.
28All of your offending was planned, and it was moderately sophisticated. Your offending was sustained. It is clear that you were not deterred by the fact of your arrest, charge, and bail on the first tranche of offending.
29Nevertheless, it is clear that, compared to the vast majority of dishonesty matters heard in this court, the objective gravity of your offending is relatively low. I make the observation that this matter could have properly been remitted back to the Magistrates' Court after the negotiations were concluded.
30You have no prior convictions but I am satisfied that you must bear a moral culpability for your offending. There is only little and late evidence that you have expressed remorse.
31Mr Collins submitted on your behalf that your plea of guilty was an expression of remorse. In these circumstances, the plea seems more likely to be a pragmatic conclusion to the successful negotiations conducted on your behalf.
32Your offending must be met by principles of deterrence and just punishment; however, those principles should most appropriately be met by a non-custodial sentence in this case.
Personal Circumstances
33You are 35 years old, having been born in July 1987 in Thailand. You had a difficult upbringing, marred by neglect, and physical and emotional abuse. You became pregnant at 17 and had to leave your formal education.
34You began working as a sex worker, and you met your first husband who was Australian. You relocated to Queensland with him, but returned to Thailand after a month due to his physical abuse.
35You returned to sex work, and met your current partner. You became pregnant with your second child and returned to Australia in 2013. The relationship was physically violent and controlling.
36You returned to Thailand for a brief period and you were gang raped after the birth of your third child. You became pregnant and you felt obliged to put the baby up for adoption.
37Earlier this year you left your partner and you currently live alone with your three children, aged 14, nine, and five. You receive Centrelink payments.
38You are a permanent resident of Australia, but you do not hold Australian citizenship.
Psychological/Psychiatric
39You were assessed by Dr Clare McInerney, and you have been diagnosed with post-traumatic stress disorder; depression not in the post-natal period; recurrent depressive disorder, which is current and moderate; suicidal ideation, whereby you intended to poison yourself by the administration of sedatives. You have been admitted to the Box Hill Hospital psychiatric unit on two occasions.
40Dr McInerney, noted in her report:
Ms Heidenreich has depression, characterised by lowered mood, anxiety, negative thoughts regarding herself, the world and the future; social isolation and suicidal ideation.
Her illness is best described as a recurrent depressive disorder of at least moderate severity. She has had several bouts of post-natal depression, but her symptoms are not confined to the peri- and post-partum period. In addition, she has demonstrated some of the features of borderline personality disorder, including difficulty regulating emotions, anger, impulsivity, and fear of abandonment.
She reports that she has experienced multiple negative life events, including physical and sexual abuse in childhood; at least one sexual assault in adulthood, and two abusive relationships.
Her symptoms have significantly affected her functioning, particularly from 2017 onwards. She has had trials of multiple antidepressants as well as two courses of ECT, with only a modest response to treatment.
41Dr McInerney further stated that you are currently taking antidepressant medication and receiving counselling and support. You will need to continue both of these in the long term to manage your mental health.
Sentencing Submissions
42The parties agree that, notwithstanding the relatively sophisticated and sustained nature of your offending, that the relatively low objective gravity of your offending, your plea of guilty, your lack of prior convictions, your mental health and personal circumstances all militate towards the imposition of a community corrections order. The Crown however seeks the imposition of a significant punitive aspect and also a restitution order.
43I will say something about the restitution order later, but in general I agree with the submissions of both counsel.
Analysis
44In the circumstances of your plea, Dr McInerney's findings, your circumstances, your lack of prior convictions, and the objective gravity of the offending, I ordered the assessment of your suitability undertake a CCO.
45The assessment report and the mental health assessment report conclude that you are suitable to undertake a CCO, but that you remain a medium risk of reoffending. The report concludes that it is appropriate to impose specific conditions of:
(a) Unpaid community work, which can be completed during school hours (given that you must be home to care for your children before and after school);
(b) The hours of treatment and rehabilitation that I am about to order would count against the hours of unpaid community work to reduce the hours of community work; and
(c) You undergo mental health treatment and that you be subject to supervision of a community corrections officer.
46Ms Heidenreich, there are a number of conditions that attach to every CCO. I am going to read those conditions to you and then I am going to ask if you understand the conditions and if you agree to each one of those conditions.
47The first condition is that you must not, during the period of the order - and I am proposing a 12 month order - you must not commit any offence punishable by imprisonment.
48OFFENDER: I agree.
49HIS HONOUR: Thank you. You understand and agree?
50OFFENDER: Yeah. I understand and agree.
51HIS HONOUR: Thank you. I will read each condition in turn. The next is that you must comply with - that is, you must obey any obligation or requirement that is prescribed by the regulations to the - you must comply with and obey the requirements of the community corrections order regulations. Do you understand and agree?
52OFFENDER: Yes, I understand and agree.
53HIS HONOUR: Thank you. The next is that you must report to, and receive visits from Corrections staff during the period of the order.
54OFFENDER: I understand and I agree.
55HIS HONOUR: Thank you. You must report to the Box Hill Community Corrections Centre within two clear working days of the order coming into force today, so by Friday afternoon you must report to the Community Corrections Centre. Do you understand and agree to that one?
56OFFENDER: Yes. I understand and agree.
57HIS HONOUR: Thank you. The next is that you must not leave Victoria without the permission of the Office of Corrections.
58OFFENDER: I understand and agree.
59HIS HONOUR: Thank you, and you must comply with - that is, you must obey any directions given to you by Corrections staff in order to ensure that you comply with the order.
60OFFENDER: I understand and agree.
61HIS HONOUR: Thank you, and that any direction given by Corrections staff may be either verbal or in writing.
62OFFENDER: I understand and agree.
63HIS HONOUR: Thank you. In addition to the general conditions there are some specific conditions which I intend to impose.
64OFFENDER: Yes.
65HIS HONOUR: The first condition is that I intend to impose a condition that the order run for 12 months. Do you understand?
66OFFENDER: Yes. I understand and agree.
67HIS HONOUR: The second is that I propose that in the course of that 12 months that you perform 60 hours of unpaid community work, so six zero hours, but that those hours can be reduced by undertaking mental health treatment as directed. All right?
68OFFENDER: Yeah. Yeah, I understand and agree.
69HIS HONOUR: The next is that I do propose to impose a condition that you submit to mental health assessment and treatment as directed by the Office of Corrections.
70OFFENDER: Yeah. I understand and agree.
71HIS HONOUR: And the final condition is that you are to be under the supervision of a Corrections officer, community corrections officer, for the period of 12 months.
72OFFENDER: I understand and agree.
73HIS HONOUR: Before you give your overall agreement there are a couple of things that I must tell you, that I must inform you. You can breach the order - that is, you can break the order in two ways.
74OFFENDER: Okay.
75HIS HONOUR: The first is if you commit a criminal offence punishable by imprisonment during the 12 months of the order.
76OFFENDER: Yes, I understand and agree.
77HIS HONOUR: And the second is that you can breach - that is, break the
order - by not complying with the conditions that I have read out to you.78OFFENDER: Okay. Yeah, I understand and agree.
79HIS HONOUR: Thank you. If you either commit a further offence or if you do not comply with the order, then you can be charged with a further offence of breaching the order and you will be brought back before me.
80OFFENDER: Yeah. I understand and agree.
81HIS HONOUR: Ms Heidenreich, it is very important that you do not commit any further offences and it is very important that you comply with the conditions of the order. Do you understand that?
82OFFENDER: Yes. I understand. I will never do anything bad again and I'm sorry and thank you for your kindness and for helping me. I am ashamed to do wrong thing.
83HIS HONOUR: All right. Now, Ms Heidenreich, for all of that do you agree to being placed on the community corrections order for the term of 12 months with the conditions of 60 hours unpaid community work, mental health reduction in the hours by complying with mental health and supervision?
84OFFENDER: Yes. Yes, I understand and I agree.
85HIS HONOUR: All right. Mr Collins and Mr Collins-Putland, you're satisfied that Ms Heidenreich understands the nature and consequences of the order?
Thank you.
Orders
86On all charges you are convicted and sentenced to undertake a 12 month community corrections order with the specific conditions that you perform 60 hours unpaid community work. Those hours can be reduced by the treatment undertaken, that there be a mental health treatment condition as I have outlined, and supervision.
6AAA
87But for the plea for the plea of guilty and all things being equal, I would have imposed a longer CCO with more unpaid community work and a fine on one or two of the charges.
88Mr Teo, what ancillary orders were you seeking as forfeiture?
89MR TEO: Your Honour, there were forfeiture orders.
90HIS HONOUR: And there was a mobile phone in the forfeiture orders?
91MR TEO: Yes, so the phone, the diary, and bank cards, Your Honour.
92HIS HONOUR: Do you really want her phone?
93MR TEO: That is what is sought by the informant, Your Honour. I can't take that any further.
94HIS HONOUR: Yes. Single mother, three kids on Centrelink benefits. I would be inclined to make the forfeiture order in relation to the other items but not in relation to the phone.
95MR TEO: Yes, Your Honour.
Restitution
96HIS HONOUR: Are you seeking restitution or compensation? - I can't remember.
97MR TEO: It's restitution, Your Honour.
98HIS HONOUR: Mr Collins, turn your mic on.
99MR COLLINS: I'm sorry to interrupt, Your Honour. We received notification that there was a compensation order.
100HIS HONOUR: Yes.
101MR COLLINS: We received something just before lunch.
102MR TEO: Apologies, Your Honour. It is a compensation order.
103HIS HONOUR: What is your attitude, Mr Collins?
104MR COLLINS: Your Honour, I don't think we can resist that but as I mentioned during the hearing, I think Your Honour is familiar with Ms Heidenreich's economic situation and it might be difficult for her to make those payments in large quantities. Overall I think it's quite a substantial sum for her if you add it all together.
105HIS HONOUR: Yes. They'll be seeking it. It's between 13 and 18,000.
106MR COLLINS: Yes.
107MR TEO: Your Honour, I'm not entirely sure if that is quite the total, so there are five - my instructor sent through draft orders today.
108HIS HONOUR: Yes.
109MR TEO: There are five individual orders. The first in relation to Ms Richards is for $439.99. The second is to Ms Mattingley for $648. The third is to Ms Wongbah for three and a half thousand dollars. The fourth is to Ms Niamphoon for $1,500. The fifth is to Ms Cahroen for $920, so the total is somewhat closer to about six and a half thousand dollars on my math estimation.
110HIS HONOUR: Yes. Just bear with me for a moment. Unfortunately the form of the orders is incomplete in that it does not specify which section of the Sentencing Act the orders are sought to be made under. I am not prepared to sign these orders and what I'll do is when the proper form of an order is put to me - or the completed form of orders are put to me, I will note the application has been made and what I will do, Mr Collins, is I'll give you until close of business tomorrow to - if you want to be heard on the order, you can, or if you want to be heard on - if it's not opposed as to the form of the order in that I can take into account Ms Heidenreich's financial circumstances, the nature of the burden, and the amount and method of payment of compensation.
111MR COLLINS: Yes, Your Honour.
112HIS HONOUR: Pursuant to s85(8), so Mr Teo, I'm not closing the Crown off at this stage. I'm just saying that I'll ask you to get the paperwork completed properly, then if Mr Collins wants to be heard I might bring you both back for a brief, 10 or 15 minutes on Zoom in the next two, three, or four days, whenever is convenient to all of you.
113MR TEO: Thank you, Your Honour.
114MR COLLINS: Yes, Your Honour.
115HIS HONOUR: Thank you. Is there anything else that you require of me, Mr Teo?
116MR TEO: No.
117HIS HONOUR: Mr Collins?
118MR COLLINS: No, nothing further. Thank you, Your Honour.
119HIS HONOUR: Mr Kankaveekun, thank you for your interpreting services today and I will now adjourn.
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