Director of Public Prosecutions v Vo
[2025] VCC 465
•16 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00796
Indictment No. N12280489.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI VO |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2024 | |
DATE OF SENTENCE: | 16 April 2025 | |
CASE MAY BE CITED AS: | DPP v Vo | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 465 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Knowingly deal with proceeds of crime – Traffick in a commercial quantity of a drug of dependence – Possess a drug of dependence – Offer bribe to a regulated person to neglect the regulated person’s duty – Single date offence – Mid-range offending – Alcohol and drug use – Gambling addiction – Committed offences to pay off gambling debts – Relevant criminal history – Late plea of guilty – No genuine remorse – Guarded prospects of rehabilitation – Verdins principle 5 engaged to a limited extent – Totality principle
Legislation Cited: Sentencing Act 1991
Cases Cited:Veen v The Queen (No 2) (1988) 164 CLR 465 – R v Cooper (1998) 103 A Crim R 51 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594 – R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of 5 years and 8 months’ imprisonment with a non-parole period of 3 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr R de Vietri Mr D Clark | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr I Polak | Nelson Brown Legal |
HIS HONOUR:
1Thi Vo, you have pleaded guilty to two charges of knowingly dealing with proceeds of crime (Charges 1 and 2),[1] one charge of trafficking in a commercial quantity of a drug of dependence (Charge 3)[2] and one charge of possession of a drug of dependence (Charge 4).[3] Charges 3 and 4 are rolled-up charges comprising various drugs of dependence found when your property was searched, which I will summarise later in my reasons.
[1] Contrary to s 194(2) of the Crimes Act 1958 (‘CA’).
[2] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[3] Contrary to s 73(1) of the DPCSA.
2Additionally, you have consented to this Court dealing with a transferred related summary offence comprising one charge of offering a bribe to a regulated person to neglect the regulated person’s duty (Summary Charge 13).[4]
[4] Contrary to s 253(1) of the Victoria Police Act 2013 (‘VPA’).
3The maximum penalties for these offences are as follows:
Knowingly dealing with proceeds of crime – 15 years’ imprisonment.[5]
Trafficking in a commercial quantity of a drug of dependence – 25 years’ imprisonment.[6]
Possession of a drug of dependence for any purpose related to trafficking, which was admitted in this case – 5 years’ imprisonment.[7]Offering bribe to a regulated person to neglect the regulated person’s duty – 2 years’ imprisonment or 240 penalty units, or both.[8]
[5] Pursuant to s 194(2) of the CA.
[6] Pursuant to s 71AA(1) of the DPCSA.
[7] Pursuant to s 73(1) of the DPCSA.
[8] Pursuant to s 253(1) of the VPA.
The facts
4The prosecution filed a summary of prosecution opening for plea dated 26 September 2024 which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.[9]
[9] Exhibit (‘Ex’) P1.
5At the time of the offending you resided at Fairbairn Street, Springvale (‘the Fairbairn Street house’) with your son and daughter. Your parents resided at Wirilda Court, Springvale South (‘the Wirilda Court house’). You rented the back area of that house and had a key to its separate entry. You did not sleep there often as you resided at the Fairbairn Street house, but would be ‘in and out’ of the back area regularly during the week.
Background to Coles Supermarket private investigation
6In July 2022, Coles Supermarkets had a team of analysts and investigators prepare and submit information to police in relation to large thefts and recidivist offenders targeting Coles.
7As part of these investigations, Coles employed a private company called Pinkertons Investigations. Two of Pinkertons’ licenced investigators, Nathan Gill and Daryl Brooks, were tasked to perform covert surveillance on Ravneet Mehta, a known recidivist thief. As a result of ongoing surveillance on Mehta, Gill and Brooks identified you as the receiver of stolen goods from Mehta and several other associates.
8Approximately 23 days of surveillance was conducted from July to October 2022, eventually leading to your arrest.
July 2022
9On 14 July, at about 4:30pm, Gill and Brooks recorded you meeting with a man in a car park near Koh’s Market Place in Springvale South. The man was observed exiting his vehicle and placing several shopping bags into your car. Later that evening, you were observed meeting two males who provided you with shopping bags and tins of baby formula.
10On 18 July, Gill and Brooks recorded you meeting the same man on Leopold Street in Springvale. He placed several shopping bags in your car before leaving. You were then observed driving back to the Wirilda Court house.
11At 6:17pm on the same day, you drove to Maxwell Street in Springvale to meet with Mehta. You took shopping bags from him before returning to the Wirilda Court house.
12On 19 July, you were observed attending Coles at Brandon Park in Mulgrave with Mehta and an unidentified man. The men were recorded stealing a large quantity of health and beauty products. They were followed to another Coles location, where they were seen stealing further items.
13At about 2:08pm on 20 July, you and Mehta met at Rowlands Avenue in Noble Park. You and Mehta were seen placing various items, including a large washing bag, in your car. You spoke with Mehta for a moment before he returned to his car carrying a small item. You departed and drove to the Wirilda Court house.
14Mehta was observed in his parked car in Haymer Court in Braeside on the morning of 22 July. He appeared to be using drugs and eventually fell asleep inside his car. You arrived that afternoon to speak to Mehta and hand him a small item. You both left at 3:21pm. The surveillance operatives followed Mehta for the remainder of the day. He drove to two different Woolworths supermarkets and left both stores with goods.
15On 25 July, Mehta and another man were tracked to Endeavour Hills Shopping Centre, where they were recorded stealing several items, including 35 tins of baby formula. At 5:15pm, Mehta parked his car in front of yours on Darren Road in Springvale South. He took the bags from his car and placed them into yours. You gave him a small item in exchange before returning to the Wirilda Court house.
August 2022
16At about 1:30pm on 1 August, you and Mehta were observed arriving separately at Garnsworthy Street in Springvale and parking next to each other. Mehta gave you two full Coles shopping bags. The bags were loaded into your car and Mehta went to your car window to receive a small item from you. Afterwards, you drove to the Fairbairn Street house.
17On 26 August, Mehta was again followed to Endeavour Hills Shopping Centre. Between 5:00pm and 9:30pm, Mehta went to ALDI, Woolworths and Coles and stole goods. He was observed driving to Mein Street in Springvale at about 9:51pm, where he transferred goods from his car into yours.
18Several days later, on 30 August, you were seen in a Toyota Yaris Cross stopped next to a park. Harnett Singh approached the passenger side and passed two bags to you through the rear window. You then drove home.
September 2022
19Mehta was followed to a Coles supermarket in Keysborough on 1 September, where he stole a variety of vitamins, health and beauty goods and tins of baby formula. His car was observed leaving the supermarket and driving to your house.
20On 2 September, you were recorded driving up to the side of Mehta’s car and passing him a small packet through the window. On the afternoon of the same day, you stopped at Amiel Street in Springvale. Singh approached you and placed a shopping bag in your car. You later drove to the Wirilda Court house.
October 2022
21You were observed at Orsino Street in Springvale on 6 October 2022. Singh was also present and was seen placing a plastic bag in your car. You then returned to the Fairbairn Street house. Later that day, at about 2:58pm, you met Mehta at Garnsworthy Street in Springvale, where he loaded Coles bags containing tins of baby formula into the boot of your car. You then drove home.
22At about 3:28pm on 11 October, you were recorded attending Lascelles Street in Springvale in a Toyota Yaris Cross, bearing different licence plates than on previous occasions. You met with Mehta, who left your car carrying a folded piece of paper.
23On 13 October, you met with Singh at the carpark next to Sandown Railway Station. He placed shopping bags in your car and left carrying a small item. At 12:35pm on the same day, surveillance operatives observed you attend Balmoral Avenue in Springvale. An unidentified man got out of his vehicle and loaded a shopping bag into your car. You then returned to the Wirilda Court house.
24At about 2:51pm on 14 October, you were observed meeting a man at Balmoral Avenue in Springvale. Afterwards, you drove to the Wirilda Court house, where you were seen unpacking Coles bags. At about 4:08pm on the same day, you were observed attending Amiel Street in Springvale, where a man loaded shopping bags into your car.
25On 20 October, surveillance operatives were once again observing you. They were in communication with D/S/C Dean Trigger, D/Sgt Thomas Arnot, D/S/C Rammy Amsha and S/C Joal Dicarla, who had become involved in the investigation. The police officers were positioned close to the area in unmarked police cars to monitor situation reports being provided by the private surveillance operatives. At about 12:21pm, you drove to Wareham Street in Springvale, where you met with Singh. He placed a red enviro-bag in the boot of your car. You had a brief conversation and provided him with a small item in exchange for the goods.
26The surveillance operatives recorded this interaction and notified the police officers. Singh left and walked south on Springvale Road, but was quickly intercepted by D/S/C Amsha and S/C Dicarla.
Arrest and search of car
27Once Singh had left, D/Sgt Arnot and D/S/C Trigger intercepted your car on Balmoral Avenue. You pulled over and followed their instructions to turn off and exit the car. You were subsequently arrested by D/S/C Trigger.
28D/Sgt Arnot conducted a preliminary search of your car and located the following items:
(a) In the centre console, a cream handbag containing $4,422.75 in cash (Charge 1 part);
(b) In the driver’s side footwell, a black plastic bag containing $77,000 in cash (Charge 1 part); and
(c) In the boot of the car, the red enviro-bag that had been provided by Singh. The bag contained various health and beauty products with a total retail value of $1,185.20 (Charge 2 part);
29D/Sgt Arnot and D/S/C Trigger drove the unmarked police car, with you in the back, to Springvale Road to assist D/S/C Amsha and S/C Dicarla with the arrest of Singh.
30While D/S/C Trigger was outside, you and D/Sgt Arnot remained in the car. The following exchange took place:
Vo: Are you in charge?
Arnot: Senior Detective Trigger is in charge of this case. I am his supervisor.
Vo: Have you got recording on?
Arnot: What do you mean?
Vo: Do you have recording?
Arnot: No. I’m not recording.
Vo: You have money found in my car. You let me go and you can have it.
Arnot: Are you offering me money to let you go?
Vo: Yes. You let me go. You have.
Arnot: You’re saying I can have all of your money if I let you go. Is that right?
Vo: You are recording, yes?
31D/S/C Trigger returned to the car and D/Sgt Arnot told him he had just had a conversation with you. D/Sgt Arnot then turned to you and said: ‘Remember that you are not obliged to say or do anything but anything that you say or do may be given as evidence. Tell him what you just told me’.
32The following exchange then took place between you, D/Sgt Arnot and D/S/C Trigger:
Vo: Are you recording this?
Trigger: No. Nothing is being recorded.
Vo: The money that you found in the car, you can have it if you let me go. You can drop me around the corner (Related Summary Charge 13).
Trigger: We’re not letting you go. We’ll talk about this later, on tape.
Search of house in Springvale South
33At about 2:10pm on the same day, police officers attended your parent’s house and conducted a search. In the back garage, shed, rear kitchen and rear bedroom, a large quantity of stolen goods was located, including health and beauty products, clothing and household items. The total retail value of these goods was calculated to be $113,340.15 (Charge 2 part).
34During the search, police also found drugs hidden in the bags and other items stored in the back of the house as follows:
(a) In a black protein shaker bottle found in a garbage bag, seven individually wrapped blocks of white powder, identified as heroin. The weight of the heroin in the packages was 226.6g (Charge 3 part).
(b) In a sock found inside a different garbage bag, the following:
(i)MDMA in pill and powder form. The total weight of the MDMA was 19.2g (Charge 4 part).
(ii)Methylamphetamine in 27 foils and a small plastic bag, in crystal form. The total weight of methylamphetamine was 9.8g (Charge 4 part).
(iii)Ketamine in powder form, contained in three small plastic bags. The total weight of ketamine was 14.3g (Charge 4 part).
(iv)MDA in the form of four green tablets. The total weight of MDA was 1.2g (Charge 4 part).
(v)Heroin in powder form, wrapped in 26 foils and totalling 7g (Charge 3 part).
35The total mixed weight of heroin found in the bottle and the sock is alleged to be 233.4g.[10] The mixed substance contained between 81% and 84% pure heroin. The quantity of pure heroin was approximated to be 192g.
Record of interview
[10] Mathematically this is incorrect as 226.6g + 7.0g = 233.6g not 233.4g. This makes no difference to the sentence I will impose on this charge.
36That evening, you were interviewed by D/S/C Trigger and S/C Dicarla at the Oakleigh police station. You told police the following:
(a) You received the red enviro-bag from Singh earlier that day. You said you knew the man who gave it to you as ‘Harry’.
(b) You did not know what was in the bag at the time of receiving it and you gave Singh $200 in exchange for it.
(c) You knew Singh was homeless and had known him for three or four months.
(d) You met Singh several times over the past few months in various streets around Springvale and received bags from him containing vitamins and health and beauty products. You paid between $100 and $200 for each bag.
(e) You took these items to your parents’ house where you rented the back rooms.
(f) You sold the items to other people, including at various markets in Springvale.
(g) The stock the police found was from the last few months and belonged to you.
(h) You did not know if the goods you were receiving were stolen. The suppliers ask you for ‘that much’ and you ‘just give it to them”. They never told you it was stolen.
(i) You have a gambling problem and sell the goods because you gamble too much and need money to pay your debts.
(j) The $77,000 found in the driver’s footwell of your car was lent by a friend to assist you to pay for your son’s house.
(k) The money in your handbag was obtained from selling your house three years ago. You were on your way to deposit the money at the bank when you were arrested.
(l) Everything found in the back of your parents’ house is yours and your parents and children were unaware of what you were storing there.
37When the allegations of drug trafficking were put to you, you denied the drugs found in the back section of your parents’ house were yours; saying, ‘it’s not mine’ and ‘I don’t believe it. My friend fucked me up’. You made no comment when the allegation that you offered a bribe to the police officers was put to you.
Offence seriousness
38Knowingly dealing with proceeds of crime and trafficking in a commercial quantity of a drug of dependence are serious criminal offences, as indicated by the maximum penalties of 15 years’ and 25 years’ imprisonment respectively. This shows, unambiguously, how seriously the community, through the Parliament views the conduct you have committed in Charges 1, 2 and 3.
39The Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance.[11] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[12] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[13]
[11] See eg DPP (Cth) v KMD [2015] VSCA 255 [36] (‘KMD’), [64](Maxwell P, Weinberg and Beach JJA); DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[12] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); KMD 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[13] Gregory 8 [24]. See also Elkadi v The King [2023] VSCA 328, [30] (Macaulay and Taylor JJA).
40It is also relevant for me to consider the harm inflicted on the community by offences involving trafficking in drugs of dependence, such as heroin.[14]
[14] R v Pidoto and O’Dea (2006) 14 VR 269, 279 [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237, [56] (Nettle JA).
41I acknowledge the offending conduct in Charge 3 is confined to a single date, and the prosecution concede there is no evidence you physically trafficked heroin. References in the summary of prosecution opening to your exchanging ‘small items’ or ‘small goods’ in return for the shopping bags is not put on the basis this constitutes acts of trafficking in heroin or any other illicit drug. Rather, the prosecution case on Charge 3 is that you possessed the heroin for sale. Nonetheless, you possessed 192g of pure heroin which is almost four times the 50g threshold for a commercial quantity of the pure drug.[15]
[15] See DPCSA s 70 and column 2 of Part 3 of Schedule Eleven.
42Overall, I consider this is a mid-range example of trafficking in a commercial quantity of a drug of dependence.
43Charge 4 is a rolled-up count[16] comprising your possession of four drugs in relatively smaller quantities. The total mixed weight of these drugs is 44.5g. This is nearly 15 times the trafficable quantity of mixed drug for these drugs, each of which is 3g.[17] Although, I acknowledge you are not charged with trafficking these drugs. Overall, I consider this is a mid-range example of possession of a drug of dependence.
[16] See R v Jones [2004] VSCA 68 [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29]–[30] (Maxwell P and Croucher AJA); Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA); R v Richard [2011] NSWSC 866 [102]–[109] (Garling J).
[17] See DPCSA s 70 and column 3A of Part 3 of Schedule Eleven for ketamine, methylamphetamine, MDA and MDMA.
44In relation to Charge 1, while I cannot make any findings on the available evidence regarding the source of the cash located in your car and in your handbag, by your plea of guilty you admit you knew this cash represented the proceeds of crime. Moreover, $81,422 is a significant amount of money. I consider this is a mid-range example of this offence.
45So far as Charge 2 is concerned, this charge represents the grocery items found in the rear section of your parents’ home. Clearly, these are the proceeds of the crimes you engaged in over an extended period of time, albeit the goods seized represent you ‘stock in trade’ on a single date. The total retail value of these goods is $114,525 and the wholesale value is $75,270. By either measure, this represents the proceeds of a large scale enterprise. A huge volume of goods is itemised in Annexures A and B to the prosecution opening, which runs for over 12 pages. I consider this is a serious example of the offence.
46Clearly, financial gain was the motivation for most of your offending conduct, although, I accept you were not living an extravagant or grandiose lifestyle as a consequence. I assess your overall conduct as involving a high degree of moral culpability.
47I also consider your offering a bribe to a police officer to neglect his duty is a serious offence, which strikes at the core of the administration of criminal justice in this State. However, I accept your conduct lacks some aggravating features, such as making threats. I also acknowledge you are charged with a summary offence, carrying a maximum penalty of 2 years’ imprisonment and/or 240 penalty units, and not with a more serious indictable offence.[18]
[18] Such as attempted bribery of a public official under Crimes Act 1958 s 321M and the common law. See eg R v Sener [1998] 3 VR 749.
48In my opinion, significant weight needs to given to denunciation, general deterrence and just punishment tin sentencing you for these crimes.
Personal circumstances
49You were assessed on 2 September 2024 by Jeffrey Cummins, a psychologist engaged by your legal representatives. Mr Cummins prepared a psychological report dated 24 September 2024 which summarises your personal circumstances.[19]
[19] Ex D2.
50You are 48 years old and were 45 at the time of the offending. You were born in Vietnam and arrived in Australia in 1990 with your mother, two brothers and sister. You became an Australian citizen a year later. You are the oldest in your sibship and although you have limited contact with your two brothers, you regularly talk to your sister.
51Your parents separated 20 years ago and you have limited contact with your father. Your mother previously engaged in farmwork and now receives a Centrelink benefit.
52You attended St John’s secondary school in Dandenong until Year 10. You left school and your family home at the age of 16 and married shortly thereafter. You have two sons in their mid-20s from this marriage.
53You divorced your husband when you were 30 years old, citing physical abuse and him having multiple affairs. You dated another man for approximately one and a half years and you share a 17 year-old daughter. You told Mr Cummins this man was also having affairs and you left him when your daughter was one year old. At the time of your arrest, all three children were residing with you. Whilst on bail for this offending, your youngest son and daughter continued to live with you.
54During your marriage you worked in hospitality, before operating a restaurant in Springvale from late 2016 to early 2020. The restaurant was forcibly closed as a result of the initial COVID-19 lockdowns. After the restaurant’s closure you worked from home buying and selling fruit and other items within the Vietnamese community. You also obtained a Jobseeker benefit and eventually you were granted a disability support pension because of your lower back condition.
Alcohol and drug use
55You commenced using illicit drugs approximately one and a half years before your arrest. You have a history of using ecstasy tablets, ketamine, another drug you described as ‘lollies’ and methamphetamine, which you were typically smoking every two days in the period leading up to your arrest on 20 October 2022.
56You told Mr Cummins you would spend about $600 to $700 a week on drugs for your own use. You would use ice every two days and then on the weekend you would ‘go out partying’ and would use other drugs. You had never received any formal drug-related treatment.
57You began consuming alcohol at 16 or 17 years of age. When you married you were an occasional alcohol drinker but your consumption increased in the year and a half before your arrest. Whilst on remand you irregularly attend ‘Alcoholics Anonymous’ meetings.
Gambling history
58You became a problem gambler about 15 years ago. You think this developed as a result of your marital problems. Recognising your difficulties, you signed a self-exclusion order and did not attend Crown Casino for some time. You resumed gambling after your restaurant was forced to close in 2020. You told Mr Cummins you still owe about $100,000 to loan sharks. Whilst on bail, you occasionally gambled in the hope you would win enough money to pay off your loans. Other than a few consultations with ‘Gambler’s Help’ whilst you have been in custody, you have received no formal treatment in relation to your gambling addiction.
59Mr Cummins summarises your views on your offending conduct as follows:
Ms Vo stated she committed the offending under the circumstances where she had been dependent on gambling and as a result accumulated a significant gambling related debt which she was being harassed to repay. She simultaneously stated that even though she had the gambling debt she often continued to gamble, hoping she would generate money to pay off the gambling debt … She also confirmed she resorted to the activities (the subject of the present charges) in order to pay off gambling related debts.
60The prosecutor submitted your gambling problems may explain your offending conduct, but this does not excuse or mitigate the offences. Your counsel did not dispute this submission. Accordingly, I accept this is so.
Mental health
61You intermittently suffered symptoms of depression when you were in an abusive marriage and in more recent times while struggling as a sole parent with substantial gambling-related debts.
62You reported to Mr Cummins symptoms including negative ruminative thinking, attention and concentration problems, low self-esteem, self-directed feelings of anger and a sense of worthless. In custody you have been prescribed what you believe to be the antidepressant Mirtazapine to aid with your sleep.
63I posed the question to your counsel as to whether these feelings are merely reactive to the situation in which you find yourself. Your counsel submitted you experienced these symptoms well before entering into custody.
64In his report, Mr Cummins made the following diagnoses:
(a) Gambling disorder at times of moderate severity and at other times severe.
(b) Major depressive disorder of moderate severity and recurrent in type.
(c) Stimulant use disorder of mild to moderate severity.
65However, in his six-page report, Mr Cummins does not specify the tests, if any, he administered in order to arrive at the opinions he expressed. He does not state how long his ‘assessment’ lasted, but, it seems, it was conducted remotely from his ‘rooms’, with the assistance of an interpreter. He apparently did not speak to any of your family members to confirm any aspects of your self-reported history.
66The report of his ‘mental state examination’ of you comprises three paragraphs of 23 lines in a report of 49 paragraphs. Most of his ‘mental state examination’ deals with conditions you do not suffer. I learnt you are not psychotic or schizophrenic, and you do not suffer from paranoia or engage in ‘bizarre thinking’. You do not have any of the following mental conditions or disabilities: acquired brain injury, adult ADHD, autism spectrum disorder, bipolar mood disorder, manic disorder, antisocial personality disorder, narcissistic personality disorder, a paranoid personality disorder or a borderline personality disorder.
67Mr Cummins formed the impression, apparently without conducting any testing, that you ‘present as being of average (most probably low average) intelligence’. He observed you ‘presented as being moderately depressed and moderately anxious’. I interpolate, this is hardly surprising given you were in custody for the first time awaiting sentencing for serious offences which you knew will probably result in a significant term of imprisonment.
68Mr Cummins recites in eight lines your self-report of your ‘symptoms’ and how you ‘regard’ them and what he considered you ‘implied’ you ‘thought’ about them, before he concludes your ‘reported symptoms … supported the diagnosis of depression’. Apparently, without conducting any psychometric or psychological testing, or administering any questionnaires – such as the Kessler Psychological Distress Scale (K 10) or Patient Health Questionnaire (PHQ-9) – Mr Cummins ‘formed the opinion [you] had intermittently been suffering from a Major Depressive Disorder of moderate severity and recurrent type (DSM-5 Code 296.32) from [your] mid-20s’.
69Moreover, ‘on the basis of [your] comments at interview’ Mr Cummins diagnosed you as suffering from ‘a Gambling Disorder (DSM-4 (sic) Code 312.31)’ which he ‘ascertained’ was ‘at times moderately severe and at other times severe’. Also based on your self-report of your level of illicit drug use in the past, Mr Cummins diagnosed you with ‘a Stimulant Use Disorder of mild-moderate severity (DSM-5 Code 305.70/304.40 – amphetamine type substance)’.
70Based on these ‘diagnoses’ Mr Cummins expressed the opinion:
… there was a nexus between her offending and her suffering from a Major Depressive Disorder and a Gambling Disorder. In my opinion the fact she was suffering from a Major Depressive Disorder would almost inevitably have impaired her perception, judgement and reasoning ability to some degree, including in relation to her gambling.
71In my opinion, Mr Cummins’s report does not comply with the requirements of the County Court of Victoria Practice Note PNCR 1-2017,[20] specifically clause 7.5 which provides:
In relation to sentencing consideration 7.1(a), the sentencing judge will ordinarily be investigating whether the evidence establishes a ‘realistic connection’ between the impairment and the offending. Any expert opinion to the effect that such a connection existed must state, as precisely as possible, how the particular condition was (or is likely to have been) operative at the time and how it was (or is likely to have been) connected with the offending.
[20] Sentencing Hearings: Expert Reports on Mental Functioning of Offenders.
72I do not consider Mr Cummins’s uncritical acceptance of your self-report, which remains unconfirmed by any third party and is not tested in any way, forms a proper basis for a diagnosis of major depressive disorder or establishes the nexus with your offending conduct which he opines. Consequently, I will give his opinion little, if any, weight.[21]
[21] See Tewaka v The King [2022] VSCA 275 [40]–[41] (Beach and Taylor JJA). See generally, Brown v The King [2020] VSCA 212 [65]–[67] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Physical health
73A medical report and bundle of documents from Centrelink were tendered by your counsel at the plea hearing.[22] These outline your experience of chronic lower back pain. A CT scan of your lumber spine shows degenerative change and mild discal pathology. You take medications for elevated blood pressure and cholesterol, and Meloxicam for back pain.
[22] Ex D6.
Criminal history and subsequent offences
74Your criminal record encompasses a series of very similar offending, dating back to 1997. Concerningly, your criminal record includes the many aliases you have used.
75On 5 December 1997, you were sentenced to your first community based order (CBO) for 12 months, in relation to theft, obtain property by deception, attempt to obtain property by deception and going equipped to steal/cheat charges.
76On 21 April 2005, you first appeared in the Melbourne County Court in relation to several engaging in money laundering charges. On that occasion you were sentenced to a total effective sentence of 10 months’ imprisonment, suspended for two years pursuant to s 27 of the Sentencing Act 1991 (‘SA’).
77On 30 April 2005, at the Melbourne Magistrates’ Court, you were convicted and sentenced to a 15-month CBO for attempt to obtain property by deception, make false report to police, four charges of intentionally destroy property and two charges of fail to answer bail. The CBO conditions included supervision, 50 hours of unpaid community work, assessment and treatment for alcohol and drug addiction, medical/psychological/psychiatric assessment and treatment, and assessment for and participation in programs to reduce reoffending. You were also sentenced to a CBO on the same terms for a charge of reckless conduct endangering serious injury.
78On 6 February 2012 at Frankston Magistrates’ Court, you were sentenced to four months’ imprisonment on a charge of recklessly cause injury and four months’ imprisonment for assault with a weapon, both wholly suspended for 12 months under s 27 of the SA. On two charges of fail to answer bail and two charges of recklessly causing injury, you were convicted and fined an aggregate of $1000.
79Finally, at a time after the present offending conduct, on 8 December 2022, you appeared at the Melbourne Magistrates’ Court where you were convicted and fined $650 for a charge of dealing with property suspected to be proceeds of crime. This offending occurred on 10 July 2022. The prosecutor submitted I should have particular regard to this charge because of its nature and proximity to when you were arrested in relation to the matters before me.[23] I cannot regard this offence as a previous conviction because, at the time of the present offending, you had not been convicted and sentenced in respect of it.[24] However, I can treat the offence as a subsequent offence.[25]
[23] See Ex P3.
[24] The conviction incorrectly appeared on the Criminal Record when filed pursuant to the Criminal Procedure Act 2009 s 244, but was later removed by amendment.
[25] See R v Phillips [1962] VR 55 (Sholl J). Cf R v Wilson (1956) VLR 199 (Gavin Duffy and Dean JJ, Lowe J diss). See also DPP (Tas) v Broadby (2010) 20 Tas R 399, 407 [19] (Evans J, Porter and Wood JJ agreeing).
80While subsequent offences cannot be taken into account in the same way prior criminal history can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are relevant also to my assessment of your prospects of rehabilitation.[26]
[26] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–11 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77–78] (Santamaria JA); R v Pham [2003] VSCA 207 [12] (Vincent JA, Winneke P and Eames JA agreeing); Wilson v The Queen [2022] VSCA 2 [20] (Priest and Niall JJA).
81As the majority of the High Court in Veen v The Queen (No 2)[27] observed:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.[28]
[27] (1988) 164 CLR 465.
[28] Ibid 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
82Despite the fact you had been arrested and charged in July 2022, albeit not yet convicted, you nonetheless continued to commit similar offences. Your history demonstrates you have manifested in your commission of the present offences ‘a continuing attitude of disobedience of the law’. Accordingly, it is necessary in your case for me to give significant weight to specific deterrence and protection of the community, not only for this reason but because your lengthy history of similar offending.
Character references
83At the plea hearing, your counsel tendered character references written by your two sons, one dated 11 September 2024[29] and the other dated 16 September 2024.[30]
[29] Ex D5.
[30] Ex D6.
84Both of your sons write about the deep sadness and worry they saw on your face the day you were arrested and the police searched your parents’ house. They both could see you were holding back tears because you were uncertain about how this would disrupt your children’s wellbeing.
85They describe you as a loving person they can rely on, and who always prioritises her children. They were shocked when they discovered you had relapsed and begun gambling again. They attribute your problems with gambling and alcohol to the frequent domestic violence they witnessed you experienced in your marriage. Your sons consider you have been a good role model for them and you have fought to become the best mother you can be.
Mitigating circumstances
86You pleaded guilty on 15 July 2024, the day your trial was listed to commence. While these are late pleas, I accept they have utilitarian benefit and indicate an acceptance by you of responsibility for your offending conduct. They also indicate a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
87I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had and will continue to have on you and your family. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
88As Winneke P observed in R v Cooper:[31]
A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds herself.[32]
[31] (1998) 103 A Crim R 51 (‘Cooper’).
[32] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
89True remorse is a question of fact and is determined on the balance of probabilities.[33] An offender must satisfy the court there is ‘genuine penitence and contrition and a desire to atone’.[34] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[35]
[33] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[34] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[35] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
90In CD v The Queen,[36] Harper JA, with whom Buchanan JA agreed, quoted his earlier observations in Phillips v The Queen,[37] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[38]
[36] [2013] VSCA 95 [36].
[37] (2012) 37 VR 594, 621 [101].
[38] Ibid [97]–[101].
91You expressed some remorse to Mr Cummins when you said:
It was wrong to do what I did – I didn’t think of my children – I should’ve thought more about the consequences. It was the gambling debts I had. I very much regret what I did.
92Mr Cummins writes:
She stated she was missing living with her children and feels guilty about the fact she has let them down as a result of her offending and as a result of socialising in the context of gambling.
93Your counsel tendered your record of interview dated 20 October 2022 on the basis you expressed remorse in your answers to police.[39] Although your counsel did not point me to specific questions and answers, I have had regard to the entire transcript. While you made comments that could be attributed to guilt or shame, such as ‘I’m really, really, really bad’, I am not satisfied you demonstrated true contrition and remorse beyond your apprehensions about being charged.
[39] Ex D8.
94While on a number of occasions you have indicated you are regretful, you have never expressed any victim empathy or a realisation of the adverse effects your offending has had on the Victorian community at large. All things considered, I cannot make a determination you are genuinely remorseful.
Rehabilitation
95There is some evidence before me of the efforts you have made towards your rehabilitation. At the plea hearing, your counsel tendered a letter prepared by Kylie De Giorgio, Gambler’s Help Therapeutic Counsellor, of Banyule Community Health dated 23 September 2024.[40]
[40] Ex D3.
96Ms De Giorgio writes that you self-referred immediately upon entering Dame Phyllis Frost Centre. Between 19 August 2024 and 23 September 2024 you attended three therapeutic counselling appointments in person and over the telephone. You requested to self-exclude from Crown Casino and the relevant paperwork for you to do so has been provided. Ms De Giorgio is able to offer ongoing therapeutic counselling through the Gambler’s Help program or facilitate a referral to your local Gambler’s Help counsellor upon your release. She writes you express a motivation to engage in further counselling and continue to address your problem gambling behaviour and underlying emotional issues.
97You also told Mr Cummins you work in the kitchen at Dame Phyllis Frost Centre.
98Your counsel tendered a bundle of reports outlining your completion of the Court Integrated Services Program (CISP).[41] You were assessed for CISP through the Melbourne Magistrates’ Court on 3 November 2022 by your case manager, Kim Robertson. Your initial treatment and support plan under CISP consisted of attending a general practitioner for a medical review and a Mental Health Care Plan, contacting Gambler’s Help Line for 24-hour confidential support, a referral to a local financial counsellor for information and support to address your debt and appointments with your case manager.
[41] Ex D7.
99Because of your efforts while on the CISP program and your affiliation with Banyule Community Health, your counsel submitted your prospects of rehabilitation should be assessed as being good. However, on balance, I assess your prospects of rehabilitation as being somewhat guarded. Ultimately, much will depend on your ability to remain drug and alcohol free and to abstain from gambling upon your release from custody.
Application of Verdins principles
100Your counsel submitted Verdins principle 5 is engaged in your case.[42] He based this submission primarily on your being a single mother with limited support and familial contact, and with a number of psychological, drug, alcohol and social issues. There are limited findings in Mr Cummins’ report to this effect, however he does opine it would be more onerous for you to be incarcerated than it would otherwise be because of you missing face-to-face contact with your sons and 17-year old daughter, due particularly to the guilt you feel for missing your daughter grow older.
[42] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
101As I said at the plea hearing, I am prepared to give some weight to Verdins principle 5 in your case. Despite the problematic nature of the diagnoses made by Mr Cummins, I do accept the sentence I impose on you may weigh more heavily on you than it would on a person in normal health, albeit to a limited extent.
Application of sentencing principles
102I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[43] and DPP (Vic) v Dalgliesh (a Pseudonym)[44] and the Victorian Court of Appeal decisions in DPP v Zhuang,[45] DPP (Cth) v Thomas[46] and Gregory v The Queen[47] Specifically, I have considered the so-called ‘comparable cases’ I was referred to by the prosecutor.[48]
[43] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[44] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[45] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[46] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[47] [2017] VSCA 151.
[48] See Ex P2. Lytras v The Queen [2020] VSCA 150; Roxburgh v The Queen [2021] VSCA 181; Polos v The King [2022] VSCA 258.
103While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[49]
[49] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
104Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
105The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
106In sentencing you for these crimes I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
107Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. I also need to give real weight to specific deterrence and protection of the community. As I earlier observed, I assess your prospects for rehabilitation as being somewhat guarded.
108Trafficking in a commercial quantity of a drug of dependence (Charge 3) is a category 2 offence under the SA.[50] This means, some irrelevant exceptions aside, a sentence of immediate imprisonment must be imposed for this offence.[51] Your counsel did not argue against sentences of imprisonment with a non-parole period being fixed on the total effective sentence as being appropriate on all charges.
[50] Sentencing Act 1991 (‘SA’) s 3 definition of ‘category 2 offence’ paragraph (g).
[51] SA s 5(2H).
109I also must have particular regard to the totality principle in sentencing you for these offences because of their overlapping nature and in order to avoid imposing a crushing sentence on you.
Ms Vo
On the charge of knowingly dealing with proceeds of crime (Charge 1) you are convicted and sentenced to 1 year’s imprisonment.
On the charge of knowingly dealing with proceeds of crime (Charge 2) you are convicted and sentenced to 15 months’ imprisonment.
On the charge of trafficking in a commercial quantity of a drug of dependence (Charge 3) you are convicted and sentenced to 4 years’ imprisonment.
On the charge of possession of a drug of dependence (Charge 4) you are convicted and sentenced to 9 months’ imprisonment.
On the charge of offering a bribe to a regulated person (Summary Charge 13) you are convicted and sentenced to 6 month’s imprisonment.
I order that 6 months of the sentence imposed on Charge 1, 8 months of the sentence imposed on Charge 2, 3 months of the sentence imposed on Charge 4 and 3 months of the sentence imposed on Summary Charge 13 be served cumulatively on the sentence imposed on Charge 3 and on each other.
That makes a total effective sentence of imprisonment for 5 years and 8 months.
I order you serve a minimum of 3 years’ and 6 months’ imprisonment before becoming eligible for parole.
I declare 290 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years.
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