Director of Public Prosecutions v Tran
[2023] VCC 1097
•Monday 6 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00551
CR-21-01219
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGUYEN KHOA TRAN |
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JUDGE: | His Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2023 | |
DATE OF SENTENCE: | Monday 6 February 2023 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1097 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Obtaining Financial Advantage by Deception
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Merrett [2007] 14 VR 392; Director of Public Prosecutions v Bulfin [1998] 4 VR 114; Dyason v The Queen [2015] VSCA 120; Apted v The Queen [2021] VSCA 151; Mao and Ors v The King [2022] VSCA 211; Director of Public Prosecutions v Caulfield [2019] VSCA 131; Anna Leimonitis v The Queen [2018] VSCA 198.
Sentence: 4 years Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Brennan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Pyne Mr M.C. White | Angus Cameron Lawyers |
HIS HONOUR:
Introduction
1Nguyen Khoa Tran, you have pleaded guilty to a total of six charges across two indictments, of obtaining a financial advantage by deception, which carries a maximum penalty of 10 years’ imprisonment.
2You also admitted your criminal history.
Circumstances of the offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 3 June 2022, Exhibit 1 at your plea hearing.
4Indictment number L12977172.1 contains five charges of obtaining a financial advantage by deception from Origin Energy (hereinafter referred to as “the Origin offending”). This offending took place between 5 August 2016 and 20 February 2018, a period spanning some 18 months. The total amount defrauded by you from Origin Energy between this period is $1,653,420.72.
5On 4 August 2014, you commenced employment with Origin Energy in the role of part-time recovery consultant. Over time your role changed, giving you access at one point to the position-based email account system (PBEA), within Origin Energy.
6On 1 November 2016, you were transferred to the full-time position of operations support analyst within Origin Energy, and then in August 2017 to operations support specialist. Neither of these positions required access to the PBEA system.
7In February 2018, a routine audit of the Origin Energy accounts discovered that dormant customer accounts had been used to obtain refunds, with the refunds being paid to the same account. Analysis of the records showed that it was your user identification which had been used to access these dormant accounts. Ultimately, it was identified that 741 dormant accounts had been used to process refunds using your user identification. Illegitimate refunds totalling the amount to which I have already referred were paid to accounts associated with you. The funds had been paid to 20 different accounts operated by you with various banking institutions – the Commonwealth Bank, Westpac Bank, National Australia Bank, ING Bank and HSBC Bank.
8Charge 1 relates to six payments made to your Westpac Bank account between 22 June 2017 and 14 February 2018, in the amount of $15,152.09.
9Charge 2 relates to 19 payments made to your HSBC Bank account between 7 August 2017 and 19 February 2018, in the amount of $53,259.35.
10Charge 3 relates to 42 payments made to your three National Australia Bank accounts between 5 August 2016 and 20 February 2018, in the amount of $93,416.23.
11Charge 4 relates to 51 payments made to your four ING Bank accounts between 7 June 2017 and 15 February 2018, in the sum of $123,785.03.
12Charge 5 relates to 622 payments made to your 11 Commonwealth Bank accounts between 16 August 2016 and 15 February 2018, in the sum of $1,367,808.02.
13The methodology used by you with regard to your offending was set out at paragraph 12 of the Summary of Prosecution Opening. It included obtaining an aged credit balances report which identified dormant accounts, identifying an amount owed to an account holder which had not yet been paid, creating false email addresses in the name of the holder of the dormant account, setting up a bank account in order to receive the credit payments, and then utilising the email from the address you had created to request a refund, using the PBEA login to facilitate your communications with Origin Energy.
14To facilitate your fraud, you entered the Origin Energy database, changing the bank accounts and email details of the customer to the ones you had created, before contacting the refunds team using the internal Origin Energy system and requesting a refund to the customer, confirming the changed bank account and email details as being correct. Ultimately, the illegitimate refunds were paid in full to your nominated bank account, with subsequent analysis revealing that you had then transferred the money illegally received into two various online sports betting accounts.
15As a result of the routine audit in February 2018, Origin Energy referred the investigation to PPB Advisory, who conducted an analysis of your Origin Energy computer on 19 February 2018. The following day search orders were made by the Supreme Court of Victoria for your residence and ultimately several digital devices were seized. You were interviewed by PPB Advisory on 21 February 2018, and made admissions to the offending. You subsequently presented a petition for bankruptcy on 28 March 2018 and the civil recovery process initiated by Origin Energy was stopped. On 24 February 2018, the matter was referred to Victoria Police.
16
Indictment number M12675105.1 contains one charge of obtaining a financial advantage by deception from Sumo Shares Services Pty Ltd, between
26 February 2019 and 14 May 2019, in the sum of $107,554.16 (“the Sumo offending”).
17Some 10 months after being interviewed by PPB Advisory and making admissions to the Origin offending, and that matter being referred to Victoria Police, you commenced employment with Sumo Energy on 10 December 2018, in the role of credit management consultant. Initially your role involved the collection of overdue accounts. However, when a colleague went on maternity leave in early 2019, you started processing refunds in addition to your usual duties, and you were given access to the PBEA account system at Sumo Energy.
18On 15 May 2019, Sumo’s customer service team was contacted by a financial investigator from Suncorp Bank (Suncorp), advising that a number of suspicious transactions into Suncorp accounts originating from Sumo had been identified. Suncorp subsequently emailed a list of 17 suspicious credits, each of which had been made by Sumo refunds into 15 different Suncorp accounts. The value of the credits ranged between $870 and $3,959 and were made between 13 March 2019 and 14 May 2019, with the funds being subsequently withdrawn from ATMs in South Melbourne and the western suburbs.
19Two senior representatives from Sumo immediately went into a separate room to commence an investigation. Your desk was close to this location, and you immediately left, ultimately citing a family emergency requiring you to be absent. As a result of the investigation, suspicion fell upon you as being responsible for the suspicious transactions as you had been the only person conducting refunds at the relevant time and your access to the building was therefore cut off.
20The following day you did not attend work. Investigations nevertheless continued, and 55 suspicious transactions were identified after reviewing several months of refunds that had been approved by you and issued to financial institutions other than Suncorp. The matter was referred to police and your employment with Sumo was terminated on 23 May 2019 with immediate effect.
21Subsequent analysis of your bank records revealed a total of 62 fraudulent deposits into accounts held by you across five banking institutions.
22The methodology of your fraud with regard to the Sumo offending involved you inserting fictitious records into the refund spreadsheet, either in the name of a genuine Sumo customer or variations of one, the inclusion by you of banking details that corresponded to the bank accounts that you controlled, and then the submission by you of the refund spreadsheet to the finance area of Sumo, who paid the fraudulent refund claims into numerous bank accounts controlled by you. As I have stated, the total quantum of the fraudulent transactions with regard to the Sumo offending was $107,554.16.
23You were ultimately arrested and interviewed by police with regard to the earlier Origin offending on 22 November 2019, making full admissions to the offending. A detailed summary of your responses in that interview was set out a paragraph 25 of the Summary of Prosecution Opening. You indicated that your offending commenced after you disagreed with a performance review that you received in July 2016 (noting that the Origin offending commenced on 5 August 2016), and that your offending initially occurred therefore as a means of getting back at your employer, but due to your addiction to gambling you lost control. You did not, during the course of this interview, make any reference to any drug-related issues, an absence explained by you subsequently in evidence before me at a determination hearing with regard to the Drug and Alcohol Treatment Court, as being due to you not then being legally represented, and being fearful of further legal repercussions should you admit to drug use.
24You were subsequently interviewed by police by appointment on 27 December 2021 with regard to the Sumo offending. In evidence before me at the abovementioned hearing, you indicated that by this stage you were legally represented. A detailed summary of your responses was set out at paragraph 26 of the Summary of Prosecution Opening. You referred to your use of Ice and cocaine, together with gambling issues that had commenced when you were 18 years of age, and that you had been “constantly chasing that (Dopamine) hit”. You referred to a substance abuse problem that started in 2016 or 2017, and that you had spent some $100,000 to $150,000 on it. You referred to your offending occurring in the context of a relapse into substance use and gambling.
25The chronology contained in the Summary of Prosecution Opening at paragraph 28 sets out the fairly protracted legal process involved in the disposition of this matter. There were delays associated with the two sets of offending being joined together ultimately, and the procedure with regard to your entry into the Drug and Alcohol Treatment Court for consideration with regards to an order also involved some delay.
26In a ruling on 12 December 2022, I ultimately determined that a Drug and Alcohol Treatment Order was not an appropriate disposition in your case, and the matter was adjourned for further plea on 31 January 2023 before sentencing today.
27Following your remand in custody on 31 January 2023, you have now served six days pre-sentence detention with regards to these matters. I accept that the protracted delays associated with the disposition of this case have no doubt weighed heavily upon you.
Criminal history
28On 19 September 2014 at Dandenong Magistrates’ Court, in relation to charges of obtain financial advantage by deception and obtain property by deception, you were sentenced to 12 months’ imprisonment, this sentence being wholly suspended for a period of 12 months. In relation to attempting to commit an indictable offence, you received an adjourned undertaking. According to the Victoria Police summary with regard to that offending, tendered at your plea hearing and marked Exhibit 3, between 13 September 2012 and 2 July 2014, whilst working as a collections officer for Mercedes-Benz Financial Services Australia, you engaged in broadly similar fraudulent misconduct with regard to your employer, with the total amount of money transferred into your bank accounts illegally amounting to $14,944.30, with a total value of attempted money transfers by you amounting to $5,256.
29Clearly, this prior conviction is relevant with regard to the matters now before me. Your prior offending continued until 2 July 2014 in the context of your employment with Mercedes-Benz. Just a few weeks after that offending ceased, on 4 August 2014, you obtained employment with Origin Energy. Your offending with regard to Origin commenced on 5 August 2016, less than 12 months after the expiration of the operational period with regard to the suspended sentence imposed in relation to your prior matter. Your relevant criminal history highlights your moral culpability for your offending, and the need for any sentence to reflect the sentencing purpose of specific deterrence.
Nature and gravity of your offending
30Objectively, the type of offending in which you engaged was serious and concerning. Such conduct, essentially, stealing money from your employer by utilising your position within the company, is often difficult to detect. In my view, your offending must be seen as a serious example of the offences to which you have pleaded guilty. You engaged in protracted and calculated dishonesty offending. The quantum of your offending in total, in excess of $1.7 million, is clearly significant. The methodology employed by you is emblematic of planned, deliberate, and systematic dishonesty offending. Due to your positions with both Origin and Sumo, your offending involved a significant breach of trust. Your deception involved many individual false representations and, as conceded by your counsel in written submissions, a degree of sophistication.
Your culpability and degree of responsibility for the offending
31In my view, your moral culpability for your offending is high. As I have already indicated, you have a highly relevant and proximate prior conviction for similar behaviour. The Origin offending commenced soon after the expiration of the operational period with regard to the suspended sentence imposed upon you for similar offending essentially involving theft from an employer. You must have known of the gravity of your conduct and the potential consequences, and that you would involve yourself in more offending of the same nature elevates, in my view, your moral culpability.
32With regard to the Origin offending, as you indicated in your record of interview from 22 November 2019 at answer to question 32, that offending was at least initially triggered by a desire on your part to get back at your boss or company following a poor performance review. Whilst this may have been the initial trigger, it is clear that it was your significant drug and gambling addictions that essentially fed or sustained your offending. Of course, these addictions can in no way excuse your offending. However, they certainly contextualise it and guide an assessment as to your moral culpability.
33There is no evidence before me of any accoutrements of enrichment or wealth, and I accept that a significant proportion of the funds obtained by you has gone towards your addictions. Nevertheless, looking globally at your offending and, in particular, the methodology employed by you and the circumstances exploited by you, your culpability must be seen as high. Your counsel did not submit that your moral culpability was lessened in any way due to any mental impairment pursuant to the Verdins’ principles.
Personal circumstances
34You are now 31 years of age. At the time of your offending you were aged between 24 and 27 years, a relatively youthful offender. To the degree appropriate in the circumstances, I have taken into consideration the principles applicable to the sentencing of young and youthful offenders, and the need to facilitate your rehabilitation to the extent that is appropriate.
35The details with regard to your personal history were set out in your counsel’s Outline of Submissions dated 15 September 2022, Exhibit A.
36You were born in Perth in September 1991. You have two younger brothers. Your family moved from Perth to Melbourne when you were very young, in March 1992, in search of better employment opportunities. Whilst your mother apparently remains supportive and has been present at your various hearings, you are estranged from your father. You have reported that growing up you witnessed significant domestic violence by your father against your mother, and that your father also had a gambling addiction.
37Your parents apparently separated temporarily when you were aged seven or eight, leaving your mother to look after the children. After an attempted reconciliation in the early 2000s, your parents separated again in 2004 amidst ongoing family violence. You have, it seems, since this time had no real ongoing relationship with your father, and this has been the case since your early teenage years.
38Your education continued until Year 12 when you obtained your VCE. Following this, you commenced, but did not finish, a Bachelor of Accounting. You apparently had the initial intention of becoming an auditor, but after taking some time off did not return to your tertiary degree.
39In terms of employment, you have reported that your expertise has been in credit or debt collection processes in previous workplaces. After working for Big W for some six months, you obtained your first professional job in July 2010 at the National Australia Bank. You worked there as a collections officer until February 2012, before working for eight months at Service Works Management. Between September 2012 and July 2014, you worked as a collections officer at Mercedes Benz. It was during this period of employment that your offending with regard to your prior conviction took place.
40You have reported that your gambling addiction commenced soon after your 18th birthday when you went to a TAB in Glen Waverley and won approximately $300. You provided details with regard to the genesis of your gambling addiction from the age of 18 to consultant forensic psychiatrist, Dr Kevin Ong, with his findings set out in a psychiatric report dated 30 May 2021.[1]
[1]Psychiatric Report by Dr Kevin Ong dated 30 May 2021, Exhibit B.
41You reported to Dr Ong that after the initial win at the local TAB, your gambling continued and increased, such that by your early twenties you were gambling daily, up to $500 per week. You reported that by the age of 22 or 23, a period corresponding with your prior offending, you had a $150,000 a year gambling habit and that you were chasing losses all the time. You have attributed your prior offending to your gambling addiction. Your prior offending involved similar theft from your employer whilst working as a collections officer at Mercedes Benz between 2012 and 2014.
42You have reported to Dr Ong that from the age of 23 you have intermittently used cocaine, using up to 1-2 grams at a time socially at the weekends. This period immediately follows the offending period with regard to the prior offending, which ended in July 2014, a few months before your 23rd birthday.
43Also at around this time, in August 2014, you commenced employment at Origin Energy. You were initially employed as a recoveries consultant but were later promoted to vendor support consultant. In 2016, you were again promoted to the position of operations support specialist. You apparently worked hard at Origin and were well-liked, respected and known as being hardworking, as evidenced by the character reference from Danielle Lattin.[2]
[2]Character Reference from Danielle Lattin dated 8 September 2022, Exhibit I.
44The performance review that triggered the commencement of the Origin offending occurred at the end of the financial year, in June 2016. By this time, you have reported being in the grips of an entrenched addiction to both gambling and cocaine. Your substance use apparently escalated following the discovery of your offending in February 2018, when your employment was terminated. You were declared bankrupt on 28 March 2018 and your then relationship broke down, causing you to fall into a depression in the context of your ongoing substance abuse. You have reported that your drug use and gambling continued unabated during your subsequent employment at Sumo later in 2018.
45Forensic psychiatrist, Dr Ong, authored two reports in relation to this matter dated 30 May 2021 and 30 May 2022, Exhibits B and C at your plea hearing respectively. Dr Ong also gave evidence before me on 15 July 2022.[3] Overall, according to Dr Ong, the offending for which you now fall to be sentenced occurred initially in the context of you feeling aggrieved as a result of a performance review, and then subsequently occurred in the context of you using increasing amounts of cocaine, and the need to fund your gambling.
[3]Dr Ong’s evidence at Directions Hearing on 15 July 2022, Exhibit E.
46Dr Ong diagnosed you with a gambling disorder together with a cocaine use disorder, the latter making you more confident, impulsive and irrational in terms of the decisions you have made.
47In Dr Ong’s first report, he concludes:
“Mr Tran committed his offending at Origin, initially driven by a sense of entitlement, anger and revenge against a manager who did not approve a bonus. Mr Tran then spiralled into escalating fraudulent behaviour driven by his gambling and cocaine use.”[4]
[4]Psychiatric Report of Dr Ong dated 30 May 2021, 7.
48In Dr Ong’s second report, he clarified the impact of your drug use on your offending, noting that your dependency on cocaine meant that intoxication with cocaine would have led to overconfidence, impulsivity and irrationality:
“This would have contributed to Mr Tran’s sense of entitlement and anger towards his previous workplace, culminating in his fraudulent offending. There is also the possibility that Mr Tran committed the offending to finance his cocaine dependence and problematic gambling.”[5]
[5]Ibid 4.
49As previously stated, your gambling and substance use issues in no way excuse your conduct. However, they do contextualise or go some way to explain your involvement in this serious and sustained dishonesty offending.
50I have already referred to the protracted legal process involved in the disposition of this matter. You were interviewed in relation to the Origin offending on 22 November 2019, but not charged until almost 12 months later on 23 December 2020. Approximately 12 months after that, after the Origin offending had progressed through the committal mention process, you were interviewed by police with regard to the Sumo offending on 27 December 2021. Ultimately, the two sets of offences were joined together. Your life has essentially been held in abeyance therefore since 2019, when your offending was brought to the attention of police.
51In that intervening period, you obtained employment at Hisense as a State coordinator between February 2020 and September 2020, coordinating repairs and refunds for faults. You obtained some further work with a friend in hospitality until the onset of COVID-19 restrictions, particularly in early 2021, meaning that that work was no longer available.
52Also in this intervening period, you started a new relationship but, by July 2021, that relationship started to break down and ultimately ended in June 2022.
53Significantly, in approximately November 2021, you commenced treatment with regard to your drug addiction. In that regard, senior alcohol and drug clinician, Dave Arthur, from Odyssey House Victoria, gave evidence before me on 19 September 2022 in relation to your rehabilitative efforts with Odyssey House. According to Mr Arthur, you self-referred to Odyssey House for drug and alcohol counselling following the completion of a comprehensive assessment on 17 November 2021 and, as at 15 September 2022, you had attended 11 sessions with regard to a complex episode of counselling.
54Notwithstanding some minor lapses, Mr Arthur reported that you had engaged positively and consistently with regard to counselling, and that you were approaching the final sessions, following which time the focus would be on relapse prevention.
55Dr Ong, in his second report dated 30 May 2022, reviewed the Odyssey House file material and opined that your cocaine use disorder was currently in early remission, and that you were receiving appropriate treatment in the form of counselling aimed at relapse prevention.
56I understand that your contact with Odyssey House ceased in the period leading up to the plea hearing in January 2023, in the context of your realistic expectation of an imminent sentence of imprisonment. Nevertheless, I am satisfied that in difficult circumstances you have conscientiously engaged in a sustained period of counselling with regard to your substance use issues. This is a positive factor with regard to your prospects for rehabilitation.
Relevant sentencing factors
57The Sentencing Act 1991 requires me to take into consideration various factors, principles and purposes when formulating an appropriate sentence in your case. As conceded by your counsel, as I am no longer considering making a Drug and Alcohol Treatment Order, the requirement contained in s18X(ii) of the Sentencing Act 1991, that I regard your rehabilitation and protection of the community from you achieved through your rehabilitation, as having greater importance than the other sentencing purposes set out in s5(1) does not apply. In that sense, this then becomes an orthodox sentencing exercise.
58I have already referred to the nature and seriousness of your offending, your level of culpability for it, your previous character, and the relevant maximum penalty. There are, in my view, a number of other important mitigatory factors relevant to the sentencing exercise in your case.
59As conceded by the prosecution, your pleas of guilty to these charges represent an early plea, entered at the committal mention stage. No witnesses have been cross-examined in relation to this matter, and your early pleas of guilty represent your willingness to facilitate the course of justice. They also represent your acknowledgment of criminal responsibility. As is well-known, your pleas of guilty entered during the currency of the COVID-19 pandemic warrants a pronounced amelioration of sentence due to the increased utilitarian value of your plea of guilty, given the unprecedented impacts of the COVID-19 pandemic on the delays experienced in this Court.[6]
[6]Worboyes v The Queen [2021] VSCA 169.
60I am satisfied that a further sentencing discount is warranted due to your genuine remorse, again a positive factor with regard to your prospects of rehabilitation and a matter decreasing the need for any sentence to reflect the purpose of specific deterrence.
61According to Dr Ong, you are remorseful for your behaviour and acknowledged wrongdoing, and also acknowledged the likelihood of a sentence of imprisonment.[7]
[7]Psychiatric Report of Dr Ong dated 30 May 2021, 7.
62Having considered the various character references tendered on your behalf, I accept that others have observed your remorse for your offending behaviour. Furthermore, on 28 November 2022, you gave evidence before me at the determination hearing with regard to a potential disposition by way of a Drug and Alcohol Treatment Order. When giving evidence, you read out the document authored by you.[8] Both in terms of the contents of that document and your demeanour whilst giving evidence, I accept that you are genuinely sorry for your actions.
[8]Letter from Nguyen Tran (read out at Further Determination Hearing on 28 November 2022, Exhibit J.
63I am satisfied that delay operates as a mitigatory factor in your case. In your case, it is at least four and a half years since the Origin offending and some three and a half years since the Sumo offending. In the intervening period, you have engaged in rehabilitative activities as I have outlined. The understandable anxiety caused by the delay and the deposition of this matter, combined with your rehabilitative efforts, warrants a mitigatory allowance on sentencing.[9]
[9]R v Merrett [2007] 14 VR 392.
64On a related issue, in the intervening period, you sought entry into the Drug and Alcohol Treatment Court and, through your counsel, sought a Drug and Alcohol Treatment Order. That process necessarily involved a number of procedural hearings followed by multiple hearings associated with the determination hearing before, ultimately, I found you unsuitable for a Drug and Alcohol Treatment Order on 12 December 2022.
65For the purposes of consideration of a drug and alcohol treatment order, you subjected yourself to numerous assessments, and ultimately gave evidence at one of the determination hearing dates. I accept that this is a rigorous process, and you have voluntarily exposed yourself to close scrutiny with regard to the minutiae of your personal circumstances and, in particular, your drug use and the extent to which it contributed to your offending.
66In addition, this process has necessarily delayed the finalisation of your case. In those circumstances and, in particular, given your ongoing rehabilitative efforts, I am satisfied that a mitigatory allowance is warranted. In addition, no doubt to increasing your anxiety with regard to the ultimate outcome, your willingness to subject yourself to this process again augers well with regard to your prospects for rehabilitation.
67Furthermore, in my view, a mitigatory allowance is warranted by virtue of the likely impacts of COVID-19 in the custodial environment. Whilst clearly the community is in a better position now, as opposed to previous years, the pandemic is still amongst us, with the attendant disruptions to life as we have previously known it. As it is well-known, the impacts of COVID-19 in the custodial setting have been substantial and onerous. As I understand it, there remains at least the prospect of restrictions with regard to freedom of movement, access to personal face-to-face visits, and access to ongoing therapeutic programs and activities. In addition, given the compromised demographic within the prison population, anxiety with regard to COVID-19 in the custodial setting is likely to be significant.
68For all of these reasons, given the custodial sentence that I am to impose, a mitigatory allowance is warranted.
69Having considered all of the relevant circumstances carefully, I regard your prospects for rehabilitation as being at least reasonable. I accept your counsel’s submissions that your favourable prospects for rehabilitation impact upon both the head sentence and the parole eligibility component in particular, given the need for specialist interventions with regard to your substance use and gambling-related issues. In my view, the community can best be protected through meaningful rehabilitation in your case.
70In formulating an appropriate sentence in your case, I have had regard to the issue of current sentencing practices. In that regard, I have read and considered the various authorities brought to my attention by both your counsel and the prosecution in relation to offending of this type.[10]
[10]Director of Public Prosecutions v Bulfin [1998] 4 VR 114; Dyason v The Queen [2015] VSCA 120; Apted v The Queen [2021] VSCA 151; Mao and Ors v The King [2022] VSCA 211; Director of Public Prosecutions v Caulfield [2019] VSCA 131; Anna Leimonitis v The Queen [2018] VSCA 198
71Clearly, current sentencing practices represent just one of the relevant factors for sentencing, and each case is necessarily fact-specific. However, the sentiments expressed by Charles AJ, as he then was, in Bulfin very much encapsulate the gravity of this type of offending and the need for any sentence to appropriately reflect the sentencing purposes of denunciation and general deterrence.[11]
[11]Director of Public Prosecutions v Bulfin [1998] 4 VR 114, 131-132;
72In my view, consistent with authority, there is a strong need to denounce your offending and to send a message through the sentence to other like-minded offenders with regard to the gravity of such offending. Given your relevant prior conviction, specific deterrence remains a relevant consideration in sentencing. As I have indicated, the need to facilitate your rehabilitation to the extent appropriate also remains an important sentencing consideration.
Sentence
73Ultimately, I have determined in accordance with the parsimony principle that nothing short of a sentence of imprisonment constituted by a head sentence and a non-parole period is appropriate to reflect the relevant factors, purposes and principles in your case. For the sake of clarity, I have considered and excluded the appropriateness of a Community Correction Order in your case, either on its own or in combination with a sentence of imprisonment.
74In relation to the Origin offending, in my view, the offending captured by each charge on the indictment represent offences which are part of a series of offences of the same or a similar character, such that it is appropriate to impose an aggregate sentence of imprisonment in respect of those offences. In relation to the aggregate sentence, I have taken into consideration the nature and gravity of the offending captured by each relevant charge on the indictment, together with the other factors to which I have referred in my reasons for sentence.
75In my view, subject to the overarching principle of totality, there is a need for the sentence I am about to impose to reflect the separate and serious criminality captured by the Sumo offending, given the circumstances in which it was committed, through a degree of cumulation. Mr Tran, would you please stand.
76In relation to indictment number L12977172.1, the Origin offending, with regard to the five charges on the indictment, you are convicted and sentenced to an aggregate sentence of three years and 8 months imprisonment.
77In relation to indictment number M12675105.1, the Sumo offending, with regard to the single charge on that indictment, you are convicted and sentenced to 20 months imprisonment.
78I order that 4 months of this Sentence be served cumulatively upon the sentence imposed with regard to the Origin offending, making a total effective sentence of four years’ imprisonment.
79I turn now to your eligibility for parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non-parole period is the minimum term that I determine justice requires you must serve, having regard to all of the circumstances. Given the positive matters in your favour, which I have articulated, I have determined that the sentence imposed should have a substantial parole eligibility component.
80I order that you serve a period of two years and 5 months before becoming eligible for parole.
81Pursuant to s18 of the Sentencing Act 1991, I declare a period of 6 days of pre-sentence detention.
82Pursuant to s6AAA of the Sentencing Act 1991 I declare that had you pleaded not guilty but been found guilty at trial I would have imposed a total effective sentence of 5 years and 6 months with a non-parole period of 4 years imprisonment.
83I make no other ancillary orders at this time.
84You can take a seat, Mr Tran. Thanks. Mr Pyne, any ambiguities with regards to that sentence?
85MR PYNE: No. No, Your Honour.
86HIS HONOUR: Mr Brennan?
87MR BRENNAN: No, Your Honour.
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