Director of Public Prosecutions v Khim

[2024] VCC 1428

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00547

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROTHANAK KHIM

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Khim
MEDIUM NEUTRAL CITATION:	[2024] VCC 1428

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:              Attempting to pervert the course of justice – Offender provided a false employment reference to assist the applicant with his bail application in the Magistrates’ Court – The lies in the written reference were repeated by the offender in his conversation with the informant –– Pre-meditated offending – Motivated by financial gain – General deterrence – Denunciation – Specific deterrence – Prior dishonesty offence –  Adjustment Disorder with Anxiety and Depressed Mood – Verdins principle five enlivened – Early plea of guilty – Remorse – General risk of re-offending low.

Legislation Cited:      Sentencing Act 1991.

Cases Cited:DPP v Aydin & Kirsch [2005] VSCA 86; R v Verdins (2007) 16 VR 26; Hill v The Queen [2021] VSCA 349; DPP v Piccolotto [2020] VCC 1401; DPP v Feltham [2018] VCC 1187; DPP v McMahon [2017] VCC; DPP v Honan [2021] VCC 409.

Sentence:                  5 months’ imprisonment followed by a Community Correction Order for a period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms O Sparrow (Plea) Mr W Amin (Sentence)	Office of Public Prosecutions
For the Accused	Mr M Kozlowski	Unite Legal

HIS HONOUR:

1Rothanak Khim, you have pleaded guilty to one charge of attempting to pervert the course of justice contrary to the Common Law. This offence carries a maximum penalty of 25 years’ imprisonment.

Circumstances of the offending

2An accused by the name of Aladore Walsh, made an application for bail before the Ringwood Magistrates’ Court on 9 November 2023. He was represented by a lawyer who tendered several documents in support of the application.

3One of the documents tendered was an employment letter. This letter was signed by you, in your capacity as the director of Ream Labours Provider Pty Ltd, and dated 8 November 2023. In the letter you confirmed that Mr Walsh had been employed by you since 2021. You stated that if he was to be granted bail, he would maintain his employment in your company. The letter advised the court of the loss to both the company and the community of Mr Walsh’s expertise and commitment.[1]

[1]See letter – Exhibit B.

4The bail application was adjourned. The following day the informant in the matter subject of the bail application spoke to you on the phone. You confirmed being the author of the letter and verified its contents. You told the informant that Mr Walsh had been employed since July 2021 and worked full time, 38 hours per week. You said he was an excellent employee who had worked his way up from a labourer to site supervisor. He mostly managed sites in Springvale. You stated that at the time of his arrest, Mr Walsh had been working on an extension and renovation at 36 Leman Crescent in Noble Park (‘Leman Crescent’). You noted the owner of Leman Crescent had requested that the job be completed quickly so you had outsourced the job to another company. You stated that your business did not have a physical storefront and operated from your home.

5The informant then contacted Mr Samreth, the owner of Leman Crescent. Mr Samreth advised the informant that: the property had been undergoing an extension and renovation since 19 June 2023; the work was being conducted by Concept Design Construct; and the site manager throughout that period was Mark Wayne. Mr Samreth stated that he did not know you, Mr Walsh or Ream Labours Provider Pty Ltd.

6Mr Samreth made further enquiries in respect of you and recalled that he had worked with you about 10 years ago at a fruit shop in Footscray market. Since then he had little contact with you, meeting on rare occasions as well as occasional phone contact. On 31 October 2023, Mr Samreth had contacted you to request you accompany him to have a confrontational conversation with a neighbour. He gave you his address and you attended there but neither of you attended the neighbour’s address.

7An ASIC search on Ream Labours Provider Pty Ltd indicated that the business was registered on 18 March 2021 as an Australian Proprietary Company with you being the director and secretary. The business address was 2 Guildford Avenue in Springvale.

8On 21 November 2023, police attended 2 Guildford Avenue and arrested you. You participated in an interview at Springvale Police Station.

9You stated that you had employed Mr Walsh in August 2022. He had last worked for you in December 2022. You had been paying him despite the fact he was not doing any work for you. You stated that Mr Walsh was paying money to you and you would then record him as a worker. You accepted writing the letter and signing it in order to assist Mr Walsh in his bail application. You admitted that the contents of the letter were not true. You wanted him to be released because he owed you more than $3,000.

10Following the interview, you were charged and released on bail.[2]

[2]The informant attended Ravenhall Correctional Facility to interview Mr Walsh on 24 November 2024. Mr Walsh exercised his right to silence and has not been charged.

Criminal history

11You have one prior appearance before the Magistrates’ Court. On 26 October 2022, you were fined an aggregate sum of $3000 without conviction, for an offence of driving a motor vehicle without a permit and using a false document.

Personal circumstances

12You were born in Cambodia and are now aged 31. You have a younger sister and a brother. You grew up in a strict environment where there was pressure to excel academically. Your father was physically abusive towards you; however, you report that part of such physical discipline was considered normal within the Cambodian culture.

13You completed your secondary education in Cambodia and were sent to Australia for further studies at the age of 18. While you were here, your parents separated and you lost contact with your father. You have, however, reconnected with your father following a visit to Cambodia in 2022.

14In Australia, you attained a Diploma in Information Technology. You commenced a Bachelor of Information Technology at the Royal Melbourne Institute of Technology but did not complete it.

15You have worked in various labouring jobs, including factory and farming work. In 2021, you established Ream Labours Provider Pty Ltd. It was a labour hire company. However, your company lost its labour hire licence at the end of 2022 and the business did not function thereafter. You then worked for another labour company until November 2023. This business was run by your former partner from Ream Labours Provider Pty Ltd. Following a confrontation with your former business partner, you left this employment in November 2023. You then lived off your savings before securing employment in April 2024 with another labour hire business. You maintained that employment until your remand in custody.

16You enjoy a stable relationship with your partner that commenced in 2020. I was told that your partner has medical concerns that may make it difficult to start a family.[3]

[3]See Exhibit 3.

17You have no issues with illicit drugs and drink alcohol only occasionally.

Gravity of the offending

18Attempting to pervert the course of justice is an offence that undermines the integrity of the criminal justice system and the rule of law. Unsurprisingly, it is regarded as a very serious offence marked by a maximum penalty of 25 years’ imprisonment. I accept that the offence covers a wide range of conduct, and the maximum penalty is a number that must be kept in perspective.[4] In sentencing, the court must give prominence to general deterrence and denunciation.

[4]DPP v Aydin & Kirsch [2005] VSCA 86 per Callaway J at [7].

19The Magistrates’ Court is a particularly busy court which deals with a significant number of bail applications. The demand on the court is such that often the integrity of references confirming employment is accepted without further enquiry. Your letter, which was false, was designed to deceive the court and assist Mr Walsh secure bail. The offending was not spontaneous but involved pre-meditation. Clearly some thought had gone into the drafting of the letter. I was told that you utilised an artificial intelligence application to prepare the reference. Not only was the letter false, but you maintained your dishonest account when spoken to by a police officer the day following the adjourned bail application. You accept that the motive behind your lies was a financial one. Mr Walsh securing bail would have meant that he would continue to pay you in exchange for you keeping him “on the books”.

20You have a prior matter for using a false document in 2022. That offence involved you presenting a driver licence with your photograph but in another person’s name to a police officer during a routine licence check. Accordingly, some weight must also be given to specific deterrence.

Defence submissions

21Your counsel accepted that your offending could be regarded as a relatively serious example of what is an inherently serious offence. He accepted that your offending was motivated by financial gain, given that you were being paid by Mr Walsh in return for you keeping him “on the books”. Your counsel conceded the role of both general deterrence and, given your dishonesty related prior, specific deterrence in the sentencing exercise.

22In mitigation he relied on your early plea of guilty in the court below at the committal mention stage. I accept by pleading guilty you have facilitated the course of justice and have taken responsibility for your actions. You have saved the community the time and expense of a trial. I also accept that your plea of guilty evinces remorse. You made admissions to the offending in your police interview. The author of the Community Correction Order Assessment[5] report states:

Upon reflection, Mr Khim demonstrated feelings of regret and remorse, stating he has ‘let my (his) family down’ and described feeling ‘ashamed and embarrassed’ of his offending behaviours.[6]

[5]Exhibit D.

[6]Ibid, pg. 2; See also Exhibit 2 at [55] and [62].

23I remanded you in custody following the conclusion of the plea hearing on 14 August 2024. This is your first time in custody and hopefully will act as a deterrent not to re-offend.

24I have had regard to Ms Kocic’s psychological report.[7] She assesses your general risk of re-offending as low. She has assessed you with an Adjustment Disorder with Anxiety and Depressed Mood emanating from your difficulties with your former business partner and exacerbated by your subsequent financial problems.[8] She states that you should obtain a referral and undergo psychological counselling in order to minimise the risk of developing a Major Depressive Disorder and/or Generalised Anxiety Disorder.[9] 

[7]Exhibit 2.

[8]Ibid [88].

[9]Ibid [89].

25Ms Kocic opines:

…imprisonment would likely weigh more heavily on Mr Khim than a person without his conditions. In individuals with symptoms of depression and anxiety, there is potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate his symptom profile and risk of decompensation.[10]

[10]Ibid [95].

26I am prepared to accept that your time in custody would weigh more heavily upon you than on a person in normal health in accordance with principle 5 of Verdins.[11]

[11]R v Verdins (2007) 16 VR 269 (‘Verdins’).

27You are not an Australian citizen. I accept your counsel’s submission that the potential for deportation has been weighing on you and causing you distress. That fact will continue to make your time in custody more onerous.

28I have had regard to the evidence your younger brother, Visal Khim, gave at the plea hearing. Your brother came to Australia in 2013 as a 12-year-old. He is now 20 years old. He describes you as being a loving and very supportive brother. You supported him financially and he lived with you for a period of time.

29I accept that you have fair prospects of rehabilitation. You have the support of your partner, relatives and friends.

30Ultimately, your counsel invited the court to impose an onerous Community Correction Order (‘CCO’).

Prosecution submissions

31I have had regard to the written prosecution submissions on sentence dated 13 August 2024.[12] Some of the matters were raised orally as well.

[12]Exhibit C.

32Prosecution counsel highlighted the objective matters impacting on the seriousness of the offending in her written submissions. These matters have already been alluded to in these reasons. Prosecution counsel submitted that general deterrence and denunciation were primary sentencing considerations and that your offending conduct required the imposition of a term of imprisonment. It was conceded, quite properly, that a combination sentence would adequately meet all sentencing considerations.

Sentencing

33As discussed with your counsel during the plea, I have had regard to the sentencing decision of Hill v The Queen [2021] VSCA 349.[13] I have also considered the cases your counsel referred me to.[14] Of course, each case is fact specific and has different aggravating and mitigating factors.

[13]Including the cases referred to in this decision. I also read DPP v Piccolotto [2020] VCC 1401.

[14]DPP v Feltham [2018] VCC 1187; DPP v McMahon [2017] VCC; DPP v Honan [2021] VCC 409.

34I reject your counsel’s submission that an onerous CCO is a sentencing disposition that can meet all sentencing purposes. This was serious offending, that was planned and involved lies told to a court and a police officer over two days.

35Having considered all relevant factors and considerations, Mr Khim, you are sentenced as follows:

36On Charge 1, you are convicted and sentenced to 5 months’ imprisonment.

37In addition, you will be sentenced to a CCO for a period of 15 months that will commence upon your release.

38Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

39In addition to the core conditions, the CCO will include the following special conditions:

·        First, you will have to perform 120 hours of unpaid community work as directed.

·        Second, you must undergo any mental health assessment and treatment as directed.

40Pursuant to s 48CA(2) of the Sentencing Act, I direct that 25 hours of treatment and rehabilitation successfully undertaken is to be counted towards the hours of unpaid community work.

41You must report to Dandenong Community Correction Centre within two working days following your release.

42Mr Khim, you need to understand that if you were to breach the CCO in any way, whether that be by committing another offence, by not complying with any of the core conditions, or by not complying with any of the special conditions, then you could be charged with the offence of breaching the order.

43The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the original order, namely the attempt to pervert the course of justice. You would then face the possibility of being sent back to custody.

44There are serious consequences attached to any breach. Do you understand that Mr Khim?

45OFFENDER:  Yes, yes, your Honour.

46HIS HONOUR:  Do you also understand all the conditions of the proposed CCO?

47OFFENDER: Yes, your Honour.

48HIS HONOUR:  I need to now ask you; do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

49OFFENDER:  Yes, your Honour.

50HIS HONOUR:  Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where you are appearing by way of a video link.

Pre-sentence detention

51Pursuant to s 18 of the Sentencing Act 1991, the period of 31 days of pre-sentence detention, not including today’s date, is declared as having already been served.

Section 6AAA declaration

52Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted of this charge, you would have been sentenced to a term of 20 months’ imprisonment with a non-parole period of 12 months.