Director of Public Prosecutions v Le (a pseudonym)
[2025] VCC 932
•7 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHIEM LE (A PSEUDONYM) |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2025 | |
DATE OF SENTENCE: | 7 July 2025 | |
CASE MAY BE CITED AS: | DPP v Le (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 932 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Contravention of Family Violence Intervention Order – damaging property – prohibited person possess a firearm – conduct endangering person – possess drug of dependence – traffick drug of dependence – prohibited person possess imitation firearm – handling stolen goods – possessing ammunition without licence or permit – drive while disqualified – serious offending – discharge firearm in proximity of another – lawless attitude – history of drug abuse – somewhat limited criminal history – familial protective factor – good prospects of rehabilitation – early guilty plea
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990; Firearms Act 1996; Road Safety Act 1986
Cases Cited:DPP v Rivette [2017] VSCA 150
Sentence: Three years and six months imprisonment with a non-parole period of one year and nine months
6AAA:Six years imprisonment with a four year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the OPP | Mr A Albert | Office of Public Prosecutions |
| For the Accused | Ms M Greener | Leanne Warren & Associates |
HIS HONOUR:
Circumstances of offending[1]
[1] The detailed circumstances of offending are set out in the Summary of Prosecution Opening for Plea (10 June 2025, Exhibit P1). I have viewed the relevant CCTV footage (Exhibit P2). I have also read and considered the written submissions of the parties as supplemented by their oral submissions, and supported by tendered material, including Outline of Plea Submissions (12 June 2025, Exhibit D4); and Carla Lechner, psychological report (14 May 2025, Exhibit D3).
Khiem Le,[2] at around 6.28 am on 2 March 2024, you climbed over the gate of a house in Kings Park. Your ex-partner Ava Bellings was living in the rear bungalow there with her new partner, Anthony Tao. Mr Tao had previously been your close friend. About six months earlier, Ms Bellings had obtained a family violence intervention order (FVIO) against you.
[2] The names of the offender, victim, offender’s children and lay witnesses have been replaced with pseudonyms.
The only evidence of what happened in the next half hour is four clips each lasting around one or two minutes that were recorded by a CCTV camera that was installed above the door to the bungalow.
The first clip shows you entering one end of the carport, where two cars (one blue) were parked. At around the same time Ms Bellings exits the bungalow and enters the carport from the other end. You had already used a significant amount of methamphetamine. You have a hammer in one hand and metal pole in the other, and use these to strike both cars. You damage the windscreen of the blue car.
Ms Bellings retreats into the bungalow. You approach the door of the bungalow, kick it and smash it with the pole and then return to striking the cars. Ms Bellings comes out, recording you with her phone. You chase after her, and she retreats back into the bungalow, while you strike the door with the pole.
The second clip is timestamped a couple of minutes later. You argue with Ms Bellings. Mr Tao comes out of the bungalow and you start fighting with him, using the pole. Ms Bellings tries to restrain you. The three of you grapple with and strike each other. The third clip starts at around 6.43 am. The three of you are lying intertwined on the ground, with you having seemingly lost consciousness.
The final clip starts at around 6.54 am. You are arguing with Ms Bellings and asking her to open the gate so you can leave. She is telling you to jump the gate. She taunts you. You respond by pulling a handgun from your pocket and firing it in close proximity to (but not at) her. You then leave.
You have pleaded guilty to the following offences:
a.Charge 1: contravention of the FVIO (by intending to cause physical or mental harm to Ms Bellings), contrary to s 123A(2) of the Family Violence Protection Act 2008, the maximum penalty for which is five years imprisonment;
b.Charge 2: damaging property (the windscreen of the blue car), contrary to s 197(1) of the Crimes Act 1958, the maximum penalty for which is 10 years imprisonment;
c.Charge 3: being a prohibited person possessing a firearm (the handgun), contrary to section 5(1) of the Firearms Act 1996, the maximum penalty for which is 10 years imprisonment; and
d.Charge 4: conduct endangering a person (by firing the handgun near Ms Bellings), contrary to s 23 of the Crimes Act 1958, the maximum penalty for which is five years imprisonment.
Neither Ms Bellings nor Mr Tao complained about your conduct. Police discovered the CCTV footage when they seized Mr Tao’s phone for an unrelated reason. They then started an investigation and arrested you on 22 March 2024. They searched you, your satchel, your car and your home and found a number of items which led to the laying of the following further charges:
a.Charge 5: 10.4 grams of methylamphetamine (five grams is a traffickable quantity): possess drug of dependence, contrary to 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is five years imprisonment;
b.Charge 6: 1420 diazepam tablets, weighing 349.3 grams (4.2 grams is a traffickable quantity): traffick drug of dependence, contrary to 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is fifteen years imprisonment;
c.Charge 7: two toy imitation firearms: being a prohibited person and possessing an imitation firearm, contrary to section 5AB(2) of the Control of Weapons Act 1990, the maximum penalty for which is 10 years imprisonment;
d.Charge 8: stolen Victorian licence plates: handling stolen goods, contrary to section 88(1) of the Crimes Act 1958, the maximum penalty for which is 15 years imprisonment;
e.Related summary offence 9: various rounds of ammunition: a rolled up charge of possessing ammunition without a licence or permit, contrary to section 124 of the Firearms Act 1996, the maximum penalty for which is a fine of 40 penalty units;[3] and
f.Related summary offence 18: driving while disqualified, contrary to 30(1) of the Road Safety Act 1986, the maximum penalty for which is two years imprisonment.
[3] At the time of the offending, a penalty unit was worth $192.31.
Objective seriousness and moral culpability
Both parties agreed that:
a.The more serious offending is that which occurred on 2 March 2024.
b.The most serious of that offending was the contravention of the FVIO and endangering Ms Bellings by discharging the firearm
c.The appropriate outcome is a head sentence with a non-parole period.[4]
d.The offending on 2 March 2024 is founded on the same facts, such that it is open to me to impose an aggregate sentence for charges 1 to 4. I intend to do so.
e.The offending on 22 March 2024 is also founded on the same facts, such that it is open to me to impose an aggregate sentence for charges 5 to 8 and the two related summary offences. However, given the significant differences between the various offences committed on 22 March 2024 I do not think it is appropriate to aggregate all of the charges, and will instead aggregate them in groups of more thematically related offending.[5]
f.A degree of concurrency between the offending of 2 and 22 March 2024 is appropriate.
[4] I note that neither party provided me with any evidence of current sentencing practice.
[5] See DPP v Rivette [2017] VSCA 150 at [80]-[81] (Ashley and Priest JJA and Croucher AJA).
In my view, this is extremely serious offending, particularly the offending of 2 March:
a.You contravened the FVIO your ex-partner had obtained for her protection from you, by entering her home and – over the next half hour – engaging in a series of violent and threatening acts;
b.That violence included discharging a firearm in Ms Bellings’ proximity, which is aggravated by the fact you were prohibited from possessing a firearm; [6]
c.The possession of ammunition and imitation firearms, driving while disqualified, and being in possession of stolen licence plates, provides further evidence of your lawless attitude at the time; and
d.The possession and trafficking of drugs of dependence in these quantities are reasonably serious offences in their own right.
[6] I am seeking to avoid the risk of double punishment here, by imposing an aggregate sentence.
General deterrence, just punishment and denunciation are important sentencing purposes for offending of this kind and require that I impose a reasonably significant head sentence with a non-parole period.
Personal circumstances and other subjective matters
You are now 30 years old, the second youngest of seven siblings. You grew up in St Albans. You left school after year 10 and started a carpentry apprenticeship. You were seriously assaulted a couple of months after you started, and by the time you had recovered you had lost your job. You have never held consistent or long-term employment since then, and you last worked in 2021.
You started using drugs when you were 14 to 15 years old. Initially cannabis, progressing into a preference for methamphetamine and GHB. You abstained from drug use for a period of about three years after you had been released from custody in 2019. But your drug use had become heavy again by the time of this offending.
You have a fairly limited criminal history, including drugs, driving and weapons offending, with your first conviction when you were around 22 years old. In 2019 you were sentenced to 23 months imprisonment (with most of it already having been served by way of pre-sentence detention). Your contravention of the FVIO means there is some need for specific deterrence; however, your limited criminal history means that this is not an overwhelming sentencing consideration.
Your children with Ms Bellings – Gus, aged seven, and Harry, aged four – were born on either side of your time in prison. Your relationship with Ms Bellings was rocky, and involved drug use. When you separated, you took responsibility for the care of your children. When she re-partnered with a close friend, you felt betrayed and angry with them both. This prompted the offending on 2 March 2024.
You have a positive relationship with your parents who currently care for your two children. You also have close relationships with some of your siblings.[7] Your family is a strong protective factor for your rehabilitation. You have also used your time on remand to make positive steps of your own towards rehabilitation.[8]
[7] See bundle of character references (Exhibit D1).
[8] See bundle of prisoner education certificates (Exhibit D2).
As long as you can abstain from drug use after you are released your prospects of rehabilitation will be good. In my view, you would best be supported in attempting to stay drug free through the possibility of a lengthy parole period.
You pleaded guilty the day before your trial was due to commence. It is not an early plea. However, it was an informant-only committal; and the period between committal and trial was used to narrow the charges. Regardless, your guilty pleas saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. Your pleas also shows your willingness to accept responsibility for your offending and are suggestive of remorse. I will reduce your sentence because of your pleas.
Orders
If you had not pleaded guilty, I would have imposed a total effective sentence of six years imprisonment with a four year non-parole period. Because you pleaded guilty, I am instead sentencing you as follows:
a.For the 2 March 2024 offending, [9] I convict you and impose an aggregate sentence of three years imprisonment (this is the base sentence).
[9] Charges 1, 2, 3 and 4.
b.For the drugs charges,[10] I convict you and impose an aggregate sentence of one year imprisonment, four months of which are to be served cumulatively on the base sentence.
[10] Charges 5 and 6.
c.For the driving and stolen car registration plate charges,[11] I convict you and impose an aggregate sentence of four months imprisonment, one month of which is to be served cumulatively on the base sentence.
[11] Charge 8 and related summary offence 18.
d.For the 22 March weapons charge,[12] I convict you and impose a sentence of four months imprisonment, one month of which is to be served cumulatively on the base sentence.
[12] Charge 7.
e.For the ammunition charge, [13] I convict you and impose no further punishment.
[13] Related summary offence 9.
f.This makes for a total effective sentence of three years and six months imprisonment.
g.I direct that you spend one year and nine months of your sentence before you are eligible for parole.
h.I declare that you have already served 472 days of your sentence by way of pre-sentence detention.
i.I make the disposal and forfeiture orders sought by the prosecution.
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