Director of Public Prosecutions v Le

[2019] VCC 1411

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00780

CR-19-00781

CR-19-00801

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHARON LE

VICTOR VARGAS

OSCAR DIAZ GUTIERREZ

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v Le & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 1411

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. K. Hamill	Office of Public Prosecutions
For Accused Le	Mr. A. Wolf
For Accused Vargas	Mr. A. Halpen
For Accused Gutierrez	Mr. A. Waters

HIS HONOUR:

1Oscar Diaz-Gutierrez, Sharon Margaret Le and Victor Arturo Vargas, you have each pleaded guilty to one charge of attempting to pervert the course of justice contrary to common law.  The details of your offending were set out in considerable detail in the amended prosecution opening on plea which was tendered as Exhibit A at your plea hearing and I shall not repeat all of those details here. 

2In summary, however, your respective offending was as follows.  Following a trial in November 2016, you Mr Gutierrez were found guilty of two charges of rape, and one charge of indecent assault which offences I will refer to in these comments as 'the sex offences.'

3You were sentenced on 22 December 2016 to imprisonment of 7.5 years with a non-parole period of five years and you are currently still serving that sentence.  On 17 April 2017, you sought leave to appeal those convictions on the basis that the trial judge had wrongly refused to allow certain evidence to be heard by the jury.  Later, a new ground was added, namely that there was new evidence now available.  You believed that if your appeal was successful you might be entitled to a new trial. 

4That new evidence ground was supported by affidavits sworn by Ms Le on
2 March 2018 and by you, Mr Vargas, on 4 April 2018.  Both of those affidavits contained information which was false, and known by all of you to be false. 

5Perhaps I should be clearer there, and it is not clear to me whether Mr Vargas at that time, was aware of the falsity of Ms Le's affidavit, or even that she had made one and vice versa, but the falsity of the affidavit was known by the deponent and by Mr Gutierrez. 

6In May 2018, you Ms Le and you, Mr Vargas, were interviewed by police concerning those affidavits and released pending summons.  On 5 June, the new evidence ground of the appeal by Mr Gutierrez, was abandoned.

7In mid-April 2019, the three of you pleaded guilty to these offences at a committal mention.  At your original trial, Mr Gutierrez, your defence was that your sexual contact with the victim in February of 2013 was consensual.  Plainly, the jury at that trial did not accept that it was. 

8In the months that followed your conviction and sentence, you were in custody.  You had a number of telephone conversations with, and visits from both Ms Le and Mr Vargas. 

9The falsity of your affidavit, Ms Le, was that you had sworn that you had met the rape victim on an earlier date, when you had not; that the victim had told you that she had been to the police and falsely claimed that Mr Gutierrez had raped her, but that he had actually not done so.  The truth was that you had never met the victim and that she had never said anything of that sort to you. 

10The falsity of your affidavit, Mr Vargas, was that you had sworn that you had first met Ms Le in late November 2016, that you had visited St Kilda and made enquiries of prostitutes working there as to whether they knew the victim; that Ms Le had told you on a number of occasions that she had seen the victim having arguments with people on the streets, causing trouble and making scenes and that you had provided Ms Le's details to Mr Gutierrez.  They were all false. 

11Prior to Mr Vargas swearing his affidavit, you, Mr Gutierrez, had discussed various changes to be made to it.  You, Mr Gutierrez, had asked Ms Le to swear the affidavit, telling her that you were not guilty of the sex offences and that if she loved you, she would do it.  That is, swear the affidavit.

12In May 2018, Mr Gutierrez, you were spoken to by police and declined to be interviewed.  You, Ms Le, told police that Mr Gutierrez's lawyers had not told you that the consequences of making a false affidavit were that you could be charged with perjury.  You told police that you had signed the affidavit because you did not believe that Mr Gutierrez had committed the sex offences, and because you loved him and because he had a family.  You told police that you regretted swearing the affidavit because you knew it was wrong and you could not afford to get into trouble.

13You, Mr Vargas, made a no-comment record of interview and declined to provide any written statement, at least not until May of 2019.  The conduct engaged in by each of you constituted the offence of attempting to pervert the course of justice.  That is, each of the three of you.

14Each of you pleaded guilty at a committal mention which the prosecution concedes was at the earliest opportunity.  The maximum penalty for the offence of attempting to pervert the course of justice is 25 years' imprisonment.  I will now address each of you individually.

15Mr Gutierrez, you are aged 51.  You were born and raised in Lima in Peru, you were one of 11 children.  You completed primary and secondary school and did three years of tertiary education in business administration.  You left your tertiary studies before completion in order to work and assist your family financially.  You migrated to Australia in 1994.  You have worked almost continuously since your arrival.  You worked as a forklift driver and as a machine operator and later studied and obtained a building and construction qualification.  You have operated your own construction business since 2005.

16In 2001, you entered into a relationship with a young woman who you later married.  You have got three children from that relationship.  They are currently aged about 12, eight and six.  You separated from your wife in late 2015, but maintained contact with your children until you were remanded in custody.

17I was informed by your counsel that prior to 2015, you had difficulty in managing your financial commitments and had built up a number of business debts. 

18In October 2015, you attempted suicide and were later treated at Sunshine Hospital where you were discharged with a diagnosis of a major depressive disorder.  The discharge summary from the North Western Mental Health was tendered at your plea hearing, confirming this.  It appears that the causes of this attempt on your life were marital, financial and business problems.

19You have prior criminal convictions, consisting of the following; Unlawful assault in 2017, the sex offences to which I have previously referred, namely two convictions for rape and one for indecent assault in 2016; and driving under the influence of intoxicating liquor, unlicensed driving and driving in a manner dangerous, also in 2016. 

20There are a number of matters going in mitigation of your sentence.  Firstly, whilst you do have prior convictions to which I have referred, none relate to dishonesty or the offences resembling that for which I am to sentence you today. 

21Also, you have pleaded guilty at the earliest opportunity, although it could not be said that you were overly helpful to police when their investigations commenced, you did plead guilty at an early time.  As a consequence, witnesses have been spared giving evidence at a committal hearing, or at trial. 

22In addition, valuable court resources have been spared as a consequence of your plea.  This entitles you to a discount with regard to your sentence.  You appear at least by your plea of guilty to show remorse for your offending.

23I consider that you have reasonable prospects for rehabilitation.  I will sentence you on the basis that you did not offend against the law at all until you reached the age of about 48.  You have no history of drug-use and ceased alcohol in about 2015.  You have a good work history; character references tendered at your plea hearing speak of your excellent character. 

24Notwithstanding that you still maintain your innocence in relation to the sex offences, you have agreed to participate in the Sex Offender program and are currently on a waiting list for it.  In any event, I do not sentence you in any way again for the sex offences.  They have been dealt with by another court at an earlier time.

25At your plea hearing for this matter, a report from a psychologist, Hugo Alarcon, dated 5 December 2016 was tendered.  His report had been prepared for your trial in relation to the sex offences, some two and a half years ago. 

26You were first referred to him for psychological treatment in September 2011.  He reported that you had been suffering from depression for several years before then.  He opined that the nature and severity of your mental symptoms had been grave and critical. 

27He considered that your regular consumption of alcohol added to your psychological condition and that your mental condition had worsened to the point that you had engaged in reckless behaviours and that in 2015 you had attempted to take your own life. 

28You underwent cognitive behaviour therapy and interpersonal therapy and this appears, he said, to have considerably improved your mental condition.  Mr Alarcon considered that imprisonment could be more detrimental to you than other persons who did not have such a mental disorder.

29Mr Alarcon noted that you had expressed a clear understanding of the wrongfulness of your actions as well as a strong sense of remorse for acting irresponsibly.  He understood that after your suicide attempt in October of 2015, you had completely ceased your use of alcohol.  He reported that you would need to engage in structured and objective plans involving psychotherapeutic counselling involving your depression and emotional disturbances and that you would need regular reviews. 

30He further noted that your father had a history of suffering from clinical depression and that two of your siblings had also struggled with depression, which I interpret as an opinion that you may yourself have been more vulnerable to depression than most others.

31I regard your culpability for this offence to be far greater than either of your co-offenders.  The plan to concoct false affidavit evidence with a view to persuading the Court of Appeal that there was new evidence available which should entitle you to a fresh trial, was entirely yours.

32Your plan involved portraying the victim of the sexual offences as a liar and a perjurer when, having died, she could not respond to defend herself against such allegations.  It further involved the deceiving of the Court of Appeal and in the event of a retrial, the County Court. 

33I have no doubt that you well knew that what you were doing or attempting to do was wrong.  Essentially, your plan was to have Ms Le and Mr Vargas commit perjury in order that you might avoid serving the sentence that had been imposed on you for the sexual offences that you had been found guilty of committing.  You must have known that you were exposing both of them to serious legal repercussions.

34I should just say before I leave Mr Gutierrez that he is also known by the name Oscar Raoul Diaz. 

35Sharon Le, you are aged 37.  You were born in Ballarat and raised mainly in Melbourne.  You left school during Year 9 when you were aged approximately 15.  You married in 2001.  Your husband travelled to Vietnam about one month after your wedding and for reasons that were not explained, he was apparently unable to return to Australia again.

36It would seem at some stage after, you reverted to your maiden name of Sharon Pitts.  You met Mr Gutierrez in 2011 and soon after, entered into an intimate relationship with him.  You knew nothing concerning Mr Gutierrez's charges for the sexual offences until after he was remanded in custody.

37You have been involved in a number of different occupations including that of a cleaner and a salesperson.  Since early 2018, you have been caring for your niece who suffers from severe disabilities as a consequence of cerebral palsy.  She has significant and complex needs. 

38Since October 2018, you have also been the sole carer for your great nephew who is now aged 15 months.  You were introduced to intravenous heroin by friends when you are aged approximately 13.  You have struggled with addiction to that drug for approximately 15 years during which time you have committed a number of criminal offences.

39I was informed that since late 2009, having completed a community based order, you have been able to remain almost completely abstinent from heroin use until the death of your brother in 2014, which appears to have triggered a relapse lasting approximately six months.  You are currently on a methadone program and are said to be stable. 

40Your prior convictions go back to the year 2000.  They involve possession of heroin, possession of money being the proceeds of crime, trafficking heroin, failure to comply with conditions of a community based order, failing to answer bail, possession of cannabis, handling stolen goods, theft from shop and going equipped to steal or cheat.

41The majority of those offences were committed between 2001 and 2010, and since then you have only one relevant conviction, namely that of going equipped to steal or cheat for which you were convicted in 2018.

42I accept that the majority of those offences were committed in the context of an addiction to heroin, and presumably the need to fund that addiction. 

43Victor Vargas, you are currently aged 47.  You were also born in Lima in Peru.   Your family migrated to Australia when you were aged about four months old, settling initially in Wangaratta and later relocating to Melbourne.

44At school you completed Year 12 and within a relatively short period, commenced employment with Toyota in Melbourne.  You remained an employee of that company for many years until the closure of its manufacturing plant in October of 2017. 

45In the course of that employment, you suffered injuries to your right and left shoulders, which has affected your ability to perform normal employment duties.  You are a single man.  You enjoy the support of a number of members of your family, with references provided to the court at your plea hearing, by two of your sisters, a brother, cousins and an aunt.  They each speak of your fine character, your loyalty to your family and your remorse concerning this offending. 

46It would seem that you suffered from depression for some time prior to your offending conduct.  A report from Mr Patrick Newton, psychologist, dated 6 August 2019, was tendered at your plea hearing.  You have advised him, and I accept that you have never been involved in illicit drug use.  Occasionally it seems you have drunk alcohol to excess, and this appears to have markedly increased after your employer closed its business.

47Mr Newton opined that you were suffering from ongoing symptoms of emotional distress since 2017, related in part to your current legal predicament.  Mr Newton considered that there was a real need for you to participate in alcohol-related education and counselling.  

48He said that this might require you to become abstinent and may involve medical supervision to ensure that you do not suffer from severe complications resulting from alcohol withdrawal.  He also considered that you may require further treatment in respect of your physical injuries.

49A report from Dr Michael King, a clinical psychologist, dated 6 August 2019, was also tendered on your behalf.  Of relevance, he considered that you have a clear tendency to defer to the wishes or requests of others.  Your counsel submitted that your offending in the matter currently before me was likely to be related to that tendency.  I also note the contents of the report of your general practitioner, Dr Amanda Kiever, which confirmed the physical injuries to your shoulders. 

50You have apparently lodged Workcover claims in respect of those injuries, and your former employer appears to have arranged for you to have been examined for the purpose of such claims by a Dr Chris Baker in April of this year. 

51He, in a report dated 6 April 2019, confirmed your injuries.  He considered that you are not capable of returning to your pre-injury duties but that you might be able to undertake your pre-injury hours at work if they were available.  He considered that you may find suitable employment in the future.

52Section 5 of the Sentencing Act of 1991 sets out the purposes for which each of your sentences may be imposed.  These include to punish the offender to an extent and in a manner which is just in all of the circumstances, to deter the offender or other persons in the community from committing offences of the same or similar nature in the future; to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated, and to manifest the denunciation by the court of the type of conduct in which you engaged respectively.

53In sentencing each of you, I am required to have regard to the maximum penalties prescribed for the offence to which I have previously referred.  That maximum penalty reflects the seriousness with which Parliament views the offence in question. 

54I am required to have regard to current sentence practices, which I will refer to shortly; the nature and gravity of the offence.  In that regard I consider that this offence is a serious one.  It has often been said in the courts in this State, that the offence strikes at the very fabric of our legal system. 

55The offenders' culpability and degree of responsibility for the offence. Although I consider that each of you has a high responsibility for your offending I consider that your culpability Mr Gutierrez is the highest, in that you were the architect of the plan of deception.  Whether the offender pleaded guilty to the offence and if so, at what stage of the proceedings he/she pleaded guilty.  Here I accept that you each pleaded guilty at an early time.

56Counsel have referred me to a number of decisions dealing with the sentencing of persons convicted of this offence.  Sentences have varied between a community correction order in some cases, to substantial periods of imprisonment in others.  Not surprisingly, the conduct referred to in those decisions varied, and clearly each case is to be determined on its own merits. 

57Nevertheless, the facts of the cases referred to me provide a reasonable guide as to the wide variety of factual circumstances which might constitute the offence of attempting to pervert the course of justice. 

58I regard the circumstances here as falling towards the lower end of the range of seriousness as far as Ms Le and Mr Vargas are concerned.  

59As previously commented, I regard the conduct of Mr Gutierrez to be far more serious, being the architect of the dishonesty.  In all of the circumstances with regard to you Mr Gutierrez, I do not consider the purposes for which I am to sentence you can be achieved by any sentence that does not involve your confinement. 

60Mr Gutierrez, on the charge of attempting to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of nine months.  I note that you are currently serving a term of imprisonment in relation to your conviction regarding the sexual offences. 

61I direct that six months of the term of imprisonment to which I have sentenced you, shall be served cumulatively to the sentence that you are currently serving with respect to the sex offences. 

62Now, Ms Hamill, as I discussed with you briefly before, at the moment as things stand in relation to the prior sentence for the sexual offences, there is a non-parole period of five years.

63MS HAMILL:  Five years three months, Your Honour. 

64HIS HONOUR:  Five years and three months?

65MS HAMILL:  That is correct, Your Honour.

66HIS HONOUR:  And I am required to set a new single non-parole period in respect to everything?

67MS HAMILL:  Correct.

68HIS HONOUR:  The previous and the current?

69MS HAMILL:  That's right, Your Honour.

70HIS HONOUR:  All right, when does the five years and three months expire?

71MS HAMILL:  The five years and three months would expire in or about 21 February 2022.

72HIS HONOUR:  21 February 2022, and if I was to add ‑ ‑ ‑ 

73MS HAMILL:  If I can just indicate Your Honour, the preference is that there are a couple of ways of doing it, but the preference is that Your Honour fixes the new global non-parole period to commence today.

74HIS HONOUR:  Yes.  I was going to nominate a date?

75MS HAMILL:  Yes, Your Honour, I assume that Your Honour anticipates that, or have in mind that you wish to perhaps add to a period of time to Mr Gutierrez's earliest relate date. 

76HIS HONOUR:  Yes, I do.

77MS HAMILL:  What is that period of time?

78HIS HONOUR:  Six months. 

79MS HAMILL:  Yes, Your Honour.

80HIS HONOUR:  So that would take it through to about 21 August of 2022. 

81MS HAMILL:  Yes, Your Honour, so then Your Honour would, since we indicate, the period of time between today and let's say 20 August ‑ ‑ ‑ 

82HIS HONOUR:  Can you work out what that comes to. 

83MS HAMILL:  Your Honour, it comes to two years, 11 months and 22 days.  That is a little clumsy. 

84HIS HONOUR:  It is indeed.

85MS HAMILL:  It may be that Your Honour simply wishes to fix a new non ‑ ‑ ‑ 

86HIS HONOUR:  What I will do is fix a new global non-parole period of two years and six months.

87MS HAMILL:  Yes, Your Honour, I am not sure whether that will actually mean that the non-parole period changes at all. 

88HIS HONOUR:  Say it again, sorry.

89MS HAMILL:  It will only increase the - Your Honour intends that Mr Gutierrez will be eligible for parole six months later than he would otherwise be eligible.  Is that the case, Your Honour?

90HIS HONOUR:  Well, in round terms.

91MS HAMILL:  Yes.

92HIS HONOUR:  But as you say, two years, 11 months and what?

93MS HAMILL:  Twenty-two days.  If Your Honour were to make it two years and six months, Your Honour wouldn't really be making any difference to his eligible, first eligible release date on parole.  If Your Honour were, for example, to fix a new global non-parole period of two years, 11 months.

94HIS HONOUR:  Yes, forget the 32 days. 

95MS HAMILL:  Twenty-two days, yes, Your Honour. 

96HIS HONOUR:  Twenty-two days, yes. 

97MS HAMILL:  That would make it.

98HIS HONOUR:  That is exactly what I will do, thank you.  I shall direct that a new global non-parole period of two years and 11 months be fixed. 

99MS HAMILL:  If Your Honour could just specify that that commences today, just for the purposes of ‑ ‑ ‑ 

100HIS HONOUR:  Commencing today, yes, thank you.  Ms Le, I am in possession of a report from Corrections Victoria dated 21 August 2019, stating that you have been assessed as suitable for a community correction order and I intend to impose such an order upon you.  The order will be of a two year duration and will involve a number of conditions which you will have to comply with.

101The Sentencing Act however, only permits me to make such a community correction order if you consent to it, but before asking whether you do consent to such an order, in fairness I should tell you what the conditions of such an order will be.

102Firstly, there are a number of mandatory conditions which are applicable to every community correction order.  Those are, in effect, that during the period of the order, that is during the two year period, you must not commit, whether in or outside Victoria, any offence punishable by imprisonment. 

103Further, you must comply with any obligation or requirement prescribed the regulations that will be applied by Corrections Victoria.  You must agree to report to and receive visits from the Secretary of the Department of Justice, read that as being Corrections Victoria, during the period of the order. 

104You must report to Community Corrections at 499 Ballarat Road, Sunshine in Victoria within two clear working days of the commencement of the order.  The commencement of the order will be today, which is a Thursday, two clear working days will be Monday.  You must report to that Corrections Victoria office by 4 pm on Monday next. 

105In addition, and still on the mandatory conditions, you must not leave Victoria during the currency of that two year order.  If you go to Albury you have left Victoria.  If you go to Mount Gambier, you have left Victoria.

106If you leave Victoria, you are in breach, that is, unless you have received permission from Corrections Victoria to do so.  If you have got a wedding you want to go to, or a funeral you want to go to that is outside Victoria, you would approach Corrections Victoria. 

107Now, in addition to the mandatory conditions set out in s.45 of the Act, there are additional conditions which I shall impose;

108Firstly, that you shall perform 100 hours of unpaid community work pursuant to s.48(C) of the Act.  Whilst I acknowledge that such work may interfere to an extent with your duties as a carer, I consider that your conduct in committing this offence, requires a punitive element to the order. 

109Had you not been involved in such duties, such carer's duties, I would have required you to perform additional hours of unpaid community work. 

110I take into account that you were fully aware that your affidavit was intended to be an important part of deceiving at least one court in relation to Mr Gutierrez's proposed appeal.  I do not accept that you are unaware of the importance or the effect of the affidavit with which you were swearing. 

111I will also propose a condition that you be supervised, monitored and managed as directed by Corrections Victoria pursuant to s.48A of that Act, and further pursuant to s.48(D) that you undergo treatment and rehabilitation in the form of assessment and treatment for drug abuse of dependency. 

112Whilst it appears that your addiction is in hand, I would have thought you would be assisted by further treatment and counselling in relation to it.  So they are the conditions which I intend to impose and I need to know whether you consent to them.  You may wish to have a quick word with your counsel.  If you would please approach the dock. 

113MR WOLF:  Thank you for that time, Your Honour.  Ms Le consents to the making of that order. 

114HIS HONOUR: Yes, thank you. I shall make that community correction order with those terms and conditions. Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to these offences and had later been convicted of them, I would have sentenced you to 12 months' imprisonment with a non-parole period of six months. 

115Victor Vargas, I am also in possession of a report from Corrections Victoria dated 21 August 2019, stating that you too have been assessed as suitable for a Community Correction order.  I intend to impose such an order upon you should you consent to it. 

116The order will also be of a two-year duration and it will also involve certain conditions with which you will need to comply. Again, I say that the Sentencing Act only permits me to make such a community correction order if you consent to it, and in fairness I will tell you what the conditions will be.

117Firstly, there will be the mandatory conditions to which I referred in my comments to Ms Le a few minutes ago; you also will need to report to the Corrections Victoria office at 499 Ballarat Road, Sunshine, by 4 pm on Monday of next week.

118In addition, I shall impose a condition that you perform 150 hours of unpaid community work pursuant to s.48(C) of the Act.  I consider that the seriousness of the offence requires a punitive element of the order.

119I take into account that you were fully aware that it was intended that you be an important part of deceiving at least one court in relation to Mr Gutierrez's proposed appeal.  I do not accept that you were unaware of the importance or the effect of the affidavit you were swearing. 

120The number of hours of unpaid work is somewhat more than in the order relating to Ms Le because of the impact that such hours are likely to have, in my opinion, on her carer's duties. 

121In addition you will be required to undergo treatment and rehabilitation with regard to alcohol abuse and dependency pursuant to s.48(B) of the Act, and further, a condition will be that you will be supervised, monitored and managed as directed by Corrections Victoria.

122What that means, in effect is, you will be required to attend at the office there at Sunshine from time to time during the two year period.  The proximity of the dates on which you have to attend will depend on all the circumstances relating to you and how you appear to be coping, and you too, as I have said, will have to attend by 4 pm on Monday of next week.  I need to know whether you consent to such a community correction order with such terms and conditions.  Do you want to approach the dock?

123MR HALPEN:  Yes, Your Honour.  He has consented to the terms, thank you for that opportunity.

124HIS HONOUR:  Yes, thank you.  Were there any ancillary orders sought, Ms Hamill?

125ASSOCIATE:  (Indistinct).

126HIS HONOUR: I have left out the final paragraph of my notes. Mr Vargas, pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty of this offence and had later been convicted of it, I would have sentenced you to 12 months' imprisonment with a non-parole period of six months. 

127MS HAMILL: Your Honour, I think I have missed Your Honour's s.6AAA declaration in relation to Mr Gutierrez.

128HIS HONOUR: Yes, I think I omitted it also. Pursuant to s.6AAA of the Sentencing Act, Mr Gutierrez, I declare that had you not pleaded guilty to these offences and had later been convicted of them, I would have sentenced you to 18 months' imprisonment with a non-parole period of 12 months. 

129MS HAMILL:  If the court pleases.  In terms of the CCOs I assumed that they are with conviction?

130HIS HONOUR:  With conviction.

131MS HAMILL:  And Your Honour was asking, or was about to ask me about ancillary orders.

132HIS HONOUR:  Yes, I was.

133MS HAMILL:  The only ancillary orders sought are in relation to Ms Le and
Mr Vargas.  An order is sought for the taking of a forensic sample. 

134HIS HONOUR: Yes. Pursuant to s.464ZF of the Crimes Act, Ms Le and
Mr Vargas, the Crown has sought an order that a DNA sample be obtained from you for placement on the database in Victoria.  It amounts to a small scraping from the inside of your mouth which I understand is relatively painless and I need to know whether you consent to such a sample being taken? 

135MR WOLF:  Your Honour, I sought that instructions from Ms Le and she consents to that. 

136HIS HONOUR:  Thank you.  Yes, in regard to Mr Vargas?

137MR HALPEN:  Your Honour, I omitted to do the same, and would be assisted by a brief moment.

138HIS HONOUR:  Just duck over, yes. 

139MR HALPEN:  I am grateful for that, Your Honour.  Mr Vargas does not consent to that order being granted, so if I might have the opportunity to make some submissions in respect of it.  I understand that it is a matter that Your Honour must consider whether or not it is in the interest of justice, and as to whether it is appropriate to make an order of this circumstance, and I would submit, given the nature of the offending, it is not one that in any way, shape or form, involved offending where a forensic sample would be of assistance if it was repeated, in circumstances where you have them now before you, there is no relevant prior matters, he is of good character, and has not offended previously, that Your Honour ought not make the order, it is not in the interest of justice to do so.

140HIS HONOUR:  Yes, thank you.  Do you want to say anything Ms Hamill?

141MS HAMILL:  Not particularly, Your Honour, I am instructed to seek this order in relation to all indictable offences and it has therefore ‑ ‑ ‑ 

142HIS HONOUR:  I will impose the order on the grounds of the seriousness of the offence committed by Mr Vargas.  I do not think it is necessary that I go into the submissions a great deal, but the seriousness of the offending is not an issue as I understood addresses at the plea hearing, there may be any one of a number of reasons why documents might be relevant even though they may not relate to a crime involving violence or anything of that sort. 

143Effectively, dishonesty offences can be committed and proven by way of DNA evidence and these are important - this is an important offence, serious offence, and I will make the order.  I should say that in relation to Ms Le and also
Mr Vargas, if come the time you do not consent, police have the power to obtain a blood sample from you using all reasonable force.  Yes, anything else that counsel wish to say to me?

144MS HAMILL:  No, Your Honour, I have been handed by Your Honour's associate, copies of the community correction order in relation to Mr ‑ ‑ ‑ 

145HIS HONOUR:  Yes, you might just have a look at those gentlemen, and they have to be signed before I leave the Bench. 

146MR HALPEN:  Might I approach Your Honour.

147HIS HONOUR:  Sure, yes you may each approach the dock.

148MR WOLF:  Thank Your Honour.

149MR HALPEN:  Thank Your Honour.

150MR WOLF:  Thank you for that time, Your Honour.

151HIS HONOUR:  Yes, thank you.  Yes, adjourn till 9 am tomorrow. 

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