Director of Public Prosecutions v Thompson

[2024] VCC 1451

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00466

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT THOMPSON

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	08 August & 12 September 2024
DATE OF SENTENCE:	17 September 2024
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2024] VCC 1451

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Obtain property by deception; attempt to obtain financial advantage by deception; possession of drug of dependence

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R (2013) 302 CLR 192; R v Verdins [2007] VSCA 62.

Sentence:  2 years and 6 months’ imprisonment                  

NPP 1 year and 8 months

Orders for forfeiture and compensation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Offender	Mr K. McLaughlin	Nelson Brown Legal

1Scott Thompson, you have pleaded guilty to the following offences:

CHARGES	OFFENCE	MAXIMUM PENALTY
Charges 1, 2, 3, 4, 5, 6, 7 & 8	Obtain property by deception	10 years’ imprisonment
Charges 9,10 &11	Attempt to obtain financial advantage by deception	5 years’ imprisonment
Charge 12	Possess methylamphetamine	1 year imprisonment
Charge 13	Possess cannabis	5 penalty units

2You were born on 17 September 1979 and were 43 - 44 years of age at the time of this offending.  Your co-accused, Ms Jezz Williams, was born on 11 September 1999 and was 23 - 24 years of age at the relevant time.  Ms Williams has been in custody in New South Wales and has an outstanding warrant for her arrest in relation to these matters.

3Your offences were committed between 22 July and 20 September 2023. You received a total payment by deception of $106,000 and attempted to obtain a further $69,999. You admit that you rented three of the seven cars involved in your offending, using false identification documents. You also admit that you sold five vehicles and attempted to sell two more, using false identification documents.

4The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

Charge 1

5On 22 July 2023, a Toyota Hilux that was rented by Ms Williams under a false name was advertised for sale by you on Facebook Marketplace for $38,000.  The purchaser of the vehicle contacted you and you arranged to meet him. He paid you the advertised price of $38,000 in cash. During the exchange, you provided a fraudulent driver’s licence in the name Boyd-Skinner, which was affixed with your photo for identification. The victim was later contacted by the hire company and informed that the vehicle had been reported as stolen.

6Police investigation revealed that a female had used a fraudulent licence to hire the car and had not returned it. The photo affixed to the licence was an image of your co-accused.

Charges 2 and 3

7On 26 July 2023, you attended Sixt Car Rental to rent a Volkswagen Tiguan, using a different false licence in the name Tryon, which had your image attached. Ms Williams attended with you. You then advertised the car for sale on Facebook Marketplace under a false name for $30,000.  The purchaser of the vehicle contacted you and you arranged to meet him at Waverley Gardens Shopping Centre later that day, so that he could test drive the car. 

8Later that evening, the victim contacted you and you agreed on a sale price of $24,000. The sale took place the following day where you provided the same fraudulent driver’s licence to the purchaser as you did in the first incident for your identification.

9On 31 July 2023, the victim attended the police station as the details appeared to be false. He then went to VicRoads and was advised that the vehicle was not registered to the purported vendor and that the licence produced was fraudulent.

Charges 4 and 5

10On 4 August 2023, you rented an MG vehicle from Sixt Car Rental using the same false licence that you provided in the rental of the second incident.  You then advertised the car for sale on Facebook Marketplace under a false name for $12,000.  On 6 August 2023, the victim contacted you and you arranged to meet at an address in Oakleigh to facilitate the sale. The victim paid you $12,000 in cash.  During the exchange, you provided a different fraudulent driver’s licence in the name Maher with your image attached, as your identification.

11The victim then conducted a serial number search on the vehicle which revealed that it belonged to the car rental company.  

Charges 6 and 7

12On 11 August 2023, you rented a Toyota Corolla from Hertz under the same false licence that you used in the sale of the third incident.  You then advertised the car for sale on Facebook Marketplace under a false name, for $26,000. On 14 August 2023, the victim contacted you and you arranged to meet him in Oakleigh. You sold the vehicle to him for $25,000, being $17,000 in cash and $8,000 which was paid into your bank account that was in the same false name that you used when renting the vehicle. The false licence that you used for identification to the purchaser was in the name Tryon, which you provided in the rental of the second incident.

13Hertz rental company reported the vehicle as stolen. When the victim took the transfer paperwork to VicRoads, he was informed that it was not registered to the vendor. The vehicle was tracked to the victim’s address where it was repossessed by police.

Charges 8 and 9

14A Volkswagen T-Cross was rented from Budget Direct. You advertised the car for sale on Gumtree under the false name Muiser and the advertised price was $22,999.  The victim arranged to meet you at an address in Sandringham and agreed to purchase the vehicle. You showed the purchaser the false licence with your image attached in the name Muiser.  On 26 August 2023, she transferred $200 to your bank account that was in the same false name. On 27 August, she paid you $6,800 in cash. Charge 8 is a rolled-up count, being the total of $7,000 that you obtained from the victim. A further $10,000 was transferred to the same

false bank account and she collected the vehicle.  The victim checked some of the details in the documentation provided and became suspicious that the information was false. She cancelled the transfer of $10,000. She messaged you saying that her account had been blocked and that she would complete the sale when it was unblocked.  She asked you to repay the cash and to collect the vehicle. You agreed to collect the car but did not attend.  The victim soon found out that the vehicle actually belonged to a car rental company.

Charge 10

15On 12 September 2023, Ms Williams rented a Toyota Hilux utility under a false name.  On 14 September 2023, you advertised the vehicle for sale on Facebook Marketplace for $23,999 under the false name of Maher. An interested person was suspicious that the advertised price of the car was cheap and he contacted his friend who had purchased the Toyota Hilux, the subject of Charge 1, to compare information. There was a striking similarity between the Facebook profiles. He had a brief conversation with you where you purported to be Michael Maher. He then reported the matter to police who made enquires and ultimately located the vehicle, which was not sold.  Police searched the car and your fingerprint was located inside of the driver’s side window. Your false documentation in the name of Maher, relating to the transfer of the vehicle on 11 August, was found inside the glove box.

Charge 11

16A Toyota Corolla was rented from Thrifty. You advertised the vehicle under a false name for sale on Carsales for $30,000 but it was not sold. On 20 September 2023, police had commenced their investigation and a search warrant was executed at your short-term accommodation. The vehicle that was rented from Thrifty was located and while police were at your premises, they observed you received several notifications on your mobile phone regarding the sale of this vehicle.

Charges 12 and 13

17Police searched your accommodation and located items in false names that belonged to you, including a driver’s licence and bank documents. They located a small amount of methylamphetamine attached to car keys and a small amount of cannabis. You advised them that you were in possession of the drugs.

18You and your partner were arrested, taken to the police station and interviewed. You estimated that you received a total of $75,000 for the vehicles that you sold. You admitted that you committed the offences to support your drug dependence and gambling addiction, as well as to pay for rent, cigarettes and food. You spent about 85 per cent of the money you received on drugs as you would spend $3,000 on heroin every three days. You had anticipated that all the purchasers of the vehicles would be reimbursed and were surprised when you learnt that the victims were the ones that suffered the loss of money.

19The bank accounts that you used were opened in false names for online gambling.  A number of SIM cards were located which you agreed were yours. You admitted that you had 108 phone numbers that you used to practise your deceptions.  You also admitted that your possession of the drugs was for your personal use.

20Three victim impact statements have been read to the court. The victim of Charge 1 describes in a succinct statement the stressful impact of your offence. He had worked hard to raise his money and feels frustrated and punished by your dishonesty.

21A statement was also provided by the victim of Charge 3, outlining the devastating effect of this experience on him and his partner. They no longer trust people and still find this incident to be very hard to deal with. They feel vulnerable and the financial repercussions have been devasting.  It has also had an emotional impact that has affected their overall lifestyle. They are constantly concerned about being deceived again and the effect of your conduct has been significantly traumatic.

22The partner of the victim in Charge 5 has prepared a victim impact statement on their behalf. They had recently arrived in Australia and the loss of their money raised concerns about their capacity to remain here. They were unemployed and had to use their savings to cover expenses. They have felt shocked, disbelief, fear and regret from your deception and continue to struggle with its impact as there is an ongoing challenge to restore their security.

23I take the circumstances of the victim impact statements into account. Your dishonest conduct must have had a substantial impact on all of the victims, they paid significant amounts of money to you for the purchase of vehicles that did not belong to you.  Each of the victims has suffered financially and you will have caused them stress and anxiety as a result of the losses they sustained. You admit that your fraud is brazen and involves a substantial amount of money.  Your counsel has conceded on your behalf that your offending was relatively sophisticated with planning and preparation of the deceptive conduct. This concession is sensibly made.  Your dishonesty was not spontaneous. It was a planned, calculated course of conduct.  The use of false names, false licences and false bank accounts facilitated your dishonest transactions in order to carry out and conceal your misconduct.  Given the regularity of your offending, it was fortunate that it came to the attention of police within a relatively short period. 

24While you provided an explanation in your interview, you accept that there is no excuse for your misconduct.  You acknowledge that the victims would have been traumatised and stressed by the loss of their finances and have expressed in your interview that you do feel for them. Your counsel submits that your guilty plea is also consistent with remorse. In a report from psychologist, Ms Gina Cidoni, she also notes that you appeared remorseful for your offending.

25You were charged with a number of offences, remanded into custody on 20 September 2023, and have remained there since that time. You entered a plea of not guilty when you were committed to stand trial on 26 March 2024, despite the admissions made in your record of interview. Discussions took place between your counsel and the prosecution about the appropriate charges. After the matter was listed for a sentence indication hearing on 20 June 2024, your matter resolved without an indication being provided. You were arraigned on 25 June 2024 and entered pleas of guilty to all the charges on the current indictment.  Your guilty plea was entered nine months after you were arrested for your offending and your case has now concluded within relatively short compass. 

26There is no dispute that you immediately acknowledged your misconduct. The parties agree that your plea of guilty was entered at an early opportunity.  This has a significant utilitarian benefit.  No witnesses have been cross-examined and you have saved the court and the community the time and expense of running a trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.  Your plea of guilty demonstrates an acceptance of responsibility for your offending and I accept that there is evidence of some remorse.

27You have admitted your lengthy criminal history in New South Wales.  Your first appearance in adult court was in 2008. You have regularly appeared since 2012 for offences of dishonesty, violence, driving and possession of drugs. You have previously been sentenced to numerous terms of imprisonment. You have also received at least three therapeutic dispositions including conditional bonds and a community corrections order (CCO) for dishonesty offences.  You were subject to the CCO at the time of your current offending and admit that this is an aggravating feature. You have a number of outstanding charges in New South Wales and Queensland, including the contravention of the CCO. At the conclusion of your sentence, you expect to be extradited as warrants have been issued in both states.

28I turn now to your personal circumstances. You are an Aboriginal man on your mother’s side, belonging to the Dainggatti-Biripi indigenous community. You were born in New South Wales and are now 45 years of age. You are the second eldest in a sibship of three, also having one half sibling and two step siblings. You remain close to them all.

29You grew up in Cessnock, New South Wales. Your parents separated when you were 10 years old and you lived between their homes with your siblings. When you were 14, your mother moved to Queensland. You and your siblings remained with your father and visited your mother during the school holidays.  

30You report that after your mother left home, she did not continue to care for you. Although you have some happy memories, your childhood was damaged by significant turmoil due to your father's personal issues. He would regularly abuse and punish you. His anger would flare up and he would 'flog you' with a jug cord and other items. You were rendered unconscious during physical altercations with your father. You became scared of him, which overshadowed your childhood. You also experienced sexual abuse by a priest when you were aged between seven and nine years.  While the abuse was not reported to police, you did disclose it to your father. A compensation application is now afoot in New South Wales.

31When you were 16, you moved out of home as your stepmother did not want you to remain living in your father’s house. You relocated to Queensland to live with your cousin until you were 21, before returning to New South Wales where you stayed until 2003. Following this, you moved to Tasmania for three years before returning to New South Wales, where you remained until 2012. Since this time, you have been in and out of custody, experiencing periods of homelessness upon your release.

32Your performance at school was poor. You faced multiple suspensions, fought with teachers and peers over trivial matters and skipped most of Year 8. Your father removed you from school in Year 9 as he did not feel you needed to attend. You attempted a Year 10 certificate at TAFE, which you did not complete. You have worked in various industries including a fencing company for three years, in the roof pluming industry for six years and as a coal miner for 15 years. You have not worked for several years and hope to return to one of these fields upon your release.  

33You have maintained both long and short-term relationships throughout your life, one of which was marred by frequent arguments and multiple intervention orders. You have two daughters, aged 15 and 21, from different relationships. They both reside in Tasmania. You remain cordial with their mothers and have managed to see your children during their school holidays.

34You began a relationship with your co-accused in 2022, which you describe as stable and without arguments. At the time of offending, you were both living in a car in Springvale or in short term accommodation, surrounded by negative influences. You expect your relationship to continue upon your release from custody.

35You began to drink alcohol at the age of 14 but have not consumed any since 2012 due to your drug use. You smoked cannabis from the age 13 and since 2012, you have used prescription medications, including Xanax and Valium, as well as methamphetamine and GHB. You have engaged in almost daily heroin use since 2002, using up to two grams daily until your arrest, although you had some periods of abstinence between 2008 and 2012. Regrettably, you then learnt that your mother and sister had endured sexual abuse, which led you to return to your drug use and you have struggled as you have not managed your circumstances since that time. Your criminal history is related to your chronic drug addiction and you have persistently appeared in court since 2012. You were subject to drug use prior to the current offending and you offended to support your addiction. 

36You began engaging in poker and online gambling in around 2017, a habit which you maintained until the day of your arrest. You estimate your biggest loss was between $5000 and $6,000. 

37At the request of your solicitor, you participated in a psychological assessment with Ms Gina Cidoni, who has provided a report to the court dated 25 July 2024. In light of some inconsistencies in your earlier account, Ms Cidoni provided a supplementary report dated 20 August 2024.

38During the assessment you were oriented to time, place and person and demonstrated intact attention and a sound ability to recall events. You admitted a history of suicidality, although you were not experiencing any suicidal thoughts at the time of the assessment. Your general insight was low and your judgement was poor. Your personal history and circumstances have been summarised in the reports. Ms Cidoni made the following observations and findings:

·While you have average verbal reasoning abilities, you have a lower capacity for working memory, potentially impairing your decision-making and problem-solving abilities.

·You meet the diagnostic criteria for generalised anxiety disorder, PTSD, major depressive disorder, substance use disorder related to heroin and methamphetamine (currently in enforced remission) and ADHD. These diagnoses come from lifelong challenges, including childhood trauma, prolonged substance abuse and chronic instability.

·At the time of offending, your reliance on heroin and methamphetamine impaired your cognitive functions and judgment, entrenching you in a deeper cycle of criminal activities aimed at sustaining your addiction. Your underlying mental health conditions have been exacerbated by your substance use and have contributed to a perpetuation of your criminal cycle.

·Your mental health disorders create a psychological environment where criminal activities appear to be viable solutions to your complex problems. These vulnerabilities are compounded by significant environmental stressors, including homelessness, financial insecurity and tumultuous relationships.

·Your early adversities, such as sexual abuse and physical altercations, contributed to your development of mental health issues and significant reliance on substances. The culmination of these factors not only fuel your substance dependency but have also propelled you into a cycle of criminal activities in order to cope with unresolved trauma and ongoing stress.

·You present as a moderate risk of reoffending.

·For effective rehabilitation, you require intensive substance abuse therapy, regular sessions with a psychiatrist for medication management and to monitor ADHD symptoms and trauma-informed psychotherapy sessions. Stable housing, vocational training or employment support would also be of benefit.

·Your diagnoses significantly burden your ability to cope with the prison environment. Your PTSD and generalised anxiety disorder are likely to be exacerbated by the confined and unpredictable settings of prison, while your ADHD may complicate your ability to adhere to the structured routines of the controlled prison environment. Your history of addiction increases your vulnerability, as intensive support and treatment will not be available.

39At the initial plea hearing, your counsel submitted that the principles of Bugmy v R[1] were applicable in your case. The prosecution challenged this submission on the basis of inconsistent information as to whether you suffered instability as a child. The plea was adjourned, part-heard, in order to provide the additional psychological report and other objective evidence.

[1] (2013) 302 CLR 192.

40Your sister has now written a letter to the court. She describes the childhood trauma that you both suffered as substantial, due to the physical, verbal and emotional abuse you endured at the hands of your father. His conduct was unpredictable and the constant fear of his behaviour created a toxic environment in your home. She also referred to the fact that both of you were sexually abused by someone that you trusted. Overall, she describes that the abuse you suffered was significant. She believes that it has resulted in contributing to your sense of hopelessness which has led to your chronic substance abuse.

41After reading the subsequent material, I am satisfied on balance that the principles of Bugmy are enlivened and are applicable to the overall sentencing process in your case. The prosecution now accepts this submission and agrees that the evidence confirms your disadvantaged youth, which has had an impact on your lifestyle. I accept that your childhood became difficult when you suffered exposure to abuse and instability. This has created a vicious cycle which has had an ongoing effect throughout your life and appears to have played a part on your dependency of illicit substances.  This is a mitigating factor in your sentencing considerations.  Your moral culpability should be reduced accordingly.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely.  This is counterbalanced, however, by the need for community protection, which remains a relevant sentencing consideration, particularly in light of your criminal history.

42During your offending period, your cognitive functioning was impaired by your use of illicit drugs.  It is impossible to evaluate the extent to which your mental impairment is connected to your offending, in light of the effect of your consumption of drugs. There is no material that demonstrates that any impaired mental functioning has had a causative effect on your offending. The impact of your drug use cannot be disentangled enough to determine if consideration of R vVerdins[2] Limbs 1 - 4 are applicable.  The prosecution does not agree with your counsel’s written Verdins submission in this regard. I note that at the end of your plea, your counsel did not press the submission that was made about these limbs of Verdins being enlivened and I am not satisfied that they are applicable here.

[2]        [2007] VSCA 62.

43It is still submitted that Limb 5 of Verdins applicable.  It is not disputed by the prosecution, who accept Ms Cidoni’s assessment that I have just referred to, as your diagnoses will add to the burden of custody. I accept that your conditions mean that a sentence will weigh more heavily on you than on a person in normal health. I take this factor into account. 

44Your prospects of rehabilitation are, in effect, in your hands. They are bleak if you cannot deal with your dependence on illicit drugs. You acknowledge the problems that drug use has caused you and hope to overcome your dependence. I note that Ms Cidoni assessed you as a moderate risk of re-offending. Given the consistency of your offending history, I consider that your prospects are guarded at best.

45It has been conceded that a term of imprisonment will be imposed in your case.    Your offending here was serious, as it was a planned, persistent and deliberate course of dishonest conduct over a period of two months.  I take into account the maximum penalty for these offences and current sentencing practices.  The principle of totality is relevant and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct. 

46Your counsel has submitted that a straight sentence should be imposed in this case, regardless of its duration. In particular, he submitted that if the length of the sentence imposed is more than a two-year period, although the fixing of a non-parole period is usually required, it would be inappropriate here. The court should exercise its discretion in light of your past history and not impose a non-parole period.[3]

[3]        Sentencing Act 1991 (Vic) s 11 (1)(b).

47Given that the executive actions are not for my consideration, and in light of your overall offending circumstances, I intend to fix a non-parole period as your supervised release would be beneficial to the protection of the community.  Whether you are to be released at the conclusion of your sentence or at an earlier date is to be determined by the Adult Parole Board. I note that whether or not I provide a non-parole period, it makes no difference to the duration of the head sentence that I impose.

48Your co-offender has not yet been sentenced and there are no parity considerations to consider.

49Balancing all these factors as best I can, I sentence you as follows:

CHARGE	OFFENCE	PENALTY	CUMULATION
Charge 1	Obtain property by deception	12 months imprisonment	BASE
Charge 2	Obtain property by deception	10 months imprisonment
Charge 3	Obtain property by deception	12 months imprisonment	4 months
Charge 4	Obtain property by deception	10 months imprisonment
Charge 5	Obtain property by deception	12 months imprisonment	4 months
Charge 6	Obtain property by deception	10 months imprisonment
Charge 7	Obtain property by deception	12 months imprisonment	4 months
Charge 8	Obtain property by deception	12 months imprisonment	4 months
Charge 9	Attempt to obtain financial advantage by deception	8 months imprisonment
Charge 10	Attempt to obtain financial advantage by deception	6 months imprisonment	1 month
Charge 11	Attempt to obtain financial advantage by deception	6 months imprisonment	1 month
Charge 12	Possess methylamphetamine	1 month imprisonment
Charge 13	Possess cannabis	Convicted & discharged
TES	2 years and 6 months’ imprisonment
NPP	1 year and 8 months
PSD	363 days
S6AAA	3 years and 4 months’ imprisonment with a non-parole period of 2 years and 4 months
Forfeiture orders	Made without objection

Compensation Application

50Section 86 of the Sentencing Act provides that if a person is guilty of an offence, an order for compensation can be made by the court. An application has been made by the prosecution that you make restitution to the victims for the total amount you received by your deception, being $106,000.

51You have opposed the application, on the following basis:

·     You are now in custody and will be for some time. Upon your release in Victoria you expect to be extradited to New South Wales, as warrants have been issued for separate offending. You anticipate that a further term of imprisonment will be imposed.

·     You have been funded by Victorian Legal Aid for these proceedings. You do not have any income, any financial assets nor any savings. You are essentially destitute.

·     You are unlikely to have assets in the future and accept that your prospects are limited. The order would be crushing.

·     Given that you are unlikely to have the money sought and the burden that the order may have on your prospect for rehabilitation, it is submitted on your behalf that the order should not be made.

52I take into account the content of the plea material and that your misconduct has had a significant detrimental effect on the victims. After careful consideration, I do not accept that it is valid to decline the order. An order for civil compensation is not additional punishment for your offending.  It does no more than require the repayment of the money taken by you, as a result of your planned and deliberate criminal activity. Notwithstanding your financial hardship and any difficulty that the order may impose on you, I consider that the order is appropriate. Further, should your financial circumstances improve, at least the order will be in place.

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