DPP v Heliotis (a pseudonym)

[2022] VCC 2355

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LISA HELIOTIS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2022
CASE MAY BE CITED AS:	DPP v Heliotis (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2355

REASONS FOR SENTENCE
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Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Mr C. Flocke	Giorgianni & Liang Lawyers

HER HONOUR:

1

On 29 April 2002, one Mr Strain parked his car outside his house but when coming outside found that it was gone and reported the car stolen. On

30 April 2022, Ms Albongie parked her car outside her house and then her husband came outside and noticed that registration plates on the car had been taken and replaced with other registration plates.

2

It is the prosecution case that you were responsible for this, and this underlies Charge 6 on the indictment, handling stolen goods.  The actions in relation to

Mr Strain's car underly Charge 5 on the indictment, theft of motor vehicle.

3On 2 May 2022, Detective Sergeant Mark Fitt and Senior Constable Joel Decala, were patrolling the Hughesdale area in an unmarked police car, when they saw a grey Nissan Pathfinder Station Wagon, which was in fact Mr Strain's car parked opposite an address at in Hughesdale.  The headlights were on, but no one was in and a check of the registration plates revealed that those plates were stolen.  The police maintained observations, waiting for more police units and eventually Senior Constable Mitchell Lording and Detective Senior Constable Mitchell Redford arrived in another unmarked police vehicle.

4Senior Constable Lording pulled in front of the parked car to block escape and police saw that you were in the driver's seat of the car.  You drove forward and collided with the grey Commodore, then reversed into a second police car parked behind it.  This caused significant panel damage to the driver's side and caused the rear driver's side window to shatter.  The impact caused the driver's side door to be inoperable.  These actions underly Charge 8 on the indictment, aggravated offence of recklessly exposing emergency workers to risk by driving.

5Senior Constable Decala immediately got out of the police car she was in and ran towards the driver's side of the car where you were and asked you to get out of the car.  Detective Senior Constable Redford assisted and arrested and handcuffed you.  Police saw there was a man sitting in the middle rear seat of the car, one, Kane Love[1] who was also arrested.  Police then confirmed that the Pathfinder was a stolen vehicle.  Police searched the vehicle and found a number of items including a Saxon Tomahawk axe.  Your possession of this underlies Summary Charge 9, possession of a controlled weapon.

[1]A pseudonym.

6A number of other items were found being a purse, a tablet box, a number of shoulder bags, a backpack, a power drill, a chainsaw, an angle grinder, photograph albums, some clothing, a PlayStation, stamp albums, stolen registration plates and a, black foldout leather wallet containing various cards, possession of which underlies Charge 7 on the indictment handling stolen goods.

7Police checks revealed that you were unlicensed to drive a motor vehicle and this underlies Summary Charge 10, unlicensed driving.  You declined to participate in a record of interview.  The Pathfinder had been damaged to the tune of $8,926.  You were remanded in custody on 2 May and have remained in custody since then.

8I now turn to a summary of additional charges on the indictment.  In relation to Charge 1, on 2 June 2021, you arranged to meet the victim, Mr Ho to purchase an Apple iPhone which Mr Ho had registered on Gumtree for $1650.  You gave him a $50 note and 16 $100 counterfeit notes in exchange for the mobile phone. 

9In relation to Summary Charges 1, unlicensed driving and 2, stating false name and address, at 5 pm on 2 June 2021, you were intercepted by police for a licence check while driving along Malvern Road in Prahran.  You gave the false name, Connie Valiontis.  Police then checked the VicRoads database and found the registered owner of the car you were driving was in fact you. They confirmed that the name you had given was false and you told them you had used a false name and confirmed your real identity.  You were unlicensed at the time you were driving.

10Charges 2 and 3 on the indictment were charges of theft and Summary Charge 4, driving whilst disqualified occurred as follows.

11The morning of 5 January 2022, one Son Nguyen, parked his 2006 Toyota Prius Sedan outside a home in Oakleigh while making an Uber Eats delivery.  He left the car unlocked and the engine running.  You and an unidentified man stole the car.  You drove and the unidentified man took the passenger seat.  Dash cam footage from the stolen car saw you outside the car and recorded the conversation between you and the other man while you were driving it.

12You abandoned the car in the middle of Dandenong Road in Carnegie, near the intersection of Cordon Road and stole a computer and three mobile phones belonging to Mr Nguyen from the car.  You were interviewed and made full admission to the thefts, you were also disqualified from driving at the time.

13Charge 4, obtaining property by deception occurred on 10 January 2022, when the victim Mr Symons made arrangements with you to purchase a Mercane Pro Wide wheel electric scooter that was for sale on Gumtree.  Mr Symons transferred $50 to you as an initial payment.  You sent him a text message ten minutes before saying you wanted $500 to be transferred before you met him which Mr Symons did.  You never arrived at the meeting.  The matter was reported to police.  You refused to be interviewed in relation to this matter.

14The maximum penalty for aggravated reckless exposure of a police officer to risk by driving a stolen motor vehicle is 10 years' imprisonment.  The maximum penalty for theft is 10 years' imprisonment.  The maximum penalty for handling stolen goods is 15 years' imprisonment.  The maximum penalty for unlicensed driving is six months' imprisonment or 60 penalty units.  The maximum penalty for obtaining property by deception is 10 years' imprisonment.  The maximum penalty for driving whilst disqualified is two years' imprisonment or 240 penalty units.

15I now turn to your personal circumstances. 

16You are 39 years of age.  Your parents remained married until your mother died in 2015 from Parkinson's Disease. Your mother before that worked as a seamstress.  Your father worked in the automotive industry before buying and managing a hardware store.  You have an older brother aged 53, who is cognitively very disabled, and a 51 year old sister.  You have a twin sister, who unfortunately took her life in 2020.  Apparently, she struggled during COVID-19 and began using drugs and alcohol.  Unfortunately, her body was found by your father, you saw it also. She was extremely close to you and you described her to Psychologist, Warren Simmons whose report dated 7 September was tendered on the plea, that she was your best friend and the matter was worsened for you as you and your sister had had an argument before her suicide.

17So you have had an extremely difficult and traumatic time especially recently, but that is not the beginning or the end of it.  You told Mr Simmons that you had grown up in a happy family.  You were involved in swimming and ice skating.  Your family is of Greek origin.  You described your parents' relationship as a happy one.  They were together for 36 years.  You went to East Oakleigh Primary School and then you attended Mount Waverley Secondary College until the end of Year 8.  You then moved to Monash High School, but you became a bit rebellious and truanted and passed Year 10, but just after finishing Year 11 were suspended for setting toilet paper on fire.  You subsequently completed Year 12 at Chandler High School.

18At the age of 17, you met your boyfriend and you had a relationship that lasted for five years which you described as generally positive and you went out to nightclubs a great deal.  I now turn to drug and alcohol history.

19You experimented with cannabis when you were 15 and used that intermittently.  You went to nightclubs and would use ecstasy tablets.  You began drinking when you were about 16 and you would go to nightclubs with your sister twice a week, where you would drink quite heavily.

20When you were 23, you were working in your father’s hardware store, but also as a primary carer for your mother who had Parkinson's Disease which was progressing rapidly, and which required administration of her medication at the exact time every day.  You were primarily responsible for this.

21One night you went out with your sister clubbing, and with two other friends went out in the car after you had some drinks.  You drove your car whilst under the influence of alcohol, crashed into a wall, and two people were killed in the incident, and two others seriously injured including your sister.  You escaped unharmed.

22For 12 months afterwards you remained at home isolated in your room and eventually in 2009, were sentenced by this court to a term of imprisonment of 10 years' with a minimum term of seven years.  To that time, you had never been charged with or dealt with for any criminal offending.

23You were released on parole after serving a minimum term, but found it incredibly difficult to settle back into your life.  You told Mr Simmons friends you had known had married and moved on.  You, yourself, whilst in custody had kept contact with your family, but when you came out felt lost and felt comfortable only in the company of other people who had been in gaol.  You had also whilst in gaol, started using drugs. Clearly while beforehand you were drinking heavily and using party drugs, such as ecstasy when you were clubbing, but beyond that were able to live as is clear from your record a pro-social life.  You were twice then breached on parole and you ended up serving a great deal of extra time.

24Mr Simmons stated that you had reported a generally positive childhood with no history of neglect and no significant history of behavioural difficulties at school.  He stated,

'There was little in Ms [Heliotis’s] childhood that would have left her vulnerable to substance abuse.'

25He said that,

'While there was some experimentation with drugs while attending nightclubs, it was after she was released from custody, that she commenced experiencing difficulties with methamphetamines, introduced to the drug by people she had become acquainted with while in custody.'

26Mr Simmons also mentioned that you went on when you were released from custody, essentially to become very dependent on romantic relationships probably because you felt so lost, but inevitably with people who were drug users, who were engaged in crime and it would seem that you spent a great deal of your time when on release, in the community committing offending. This was also associated with your escalating drug use and essentially mixing with people who were drug users and criminal offenders themselves.

27Mr Simmons stated,

'Ms [Heliotis] had been developing relationships in the context of her substance abuse and breaching her parole, has also led her to be incarcerated with this having an impact on relationships.'

28Mr Simmons makes the point that it is very important that at this point your life that you do not have a relationship with anyone.

29He makes this point,

'There was no history of offending until Ms [Heliotis] was charged with culpable driving.  There was little evidence of significant anti-social personality traits with Ms [Heliotis’s] subsequent offending appeared to be related to her ongoing use of drugs and it would appear a gambling addiction.'

30He said,

'With regard to the matters currently before the court, these appear to have been a continuation of a (indistinct) matters developed since her first incarceration.  Her substance use appears to have escalated following the death of her twin sister, which has no doubt had a significant negative impact upon her.'

31He said that you have symptoms of Post-Traumatic Stress Disorder which abated, or went down in the years following the motor vehicle accident - the fatal motor vehicle accident you were involved in.  But he said,

'Witnessing her sister's body has reactivated some of those thoughts, but she is also dealing with the emotional turmoil of losing a sister, but more importantly, her twin sister with whom she shared a very close bond.'

32Mr Simmons believed a Drug and Alcohol Treatment Order would be of assistance to you.  He said you need assistance with the issues around your sister's death, your symptoms of Post-Traumatic Stress Disorder and what he described, as an overall pattern of dysfunctional relationships.

33What that means, that last bit Ms Heliotis is that, the time has come now for you to look to yourself, to learn how to look after yourself and to go through and work through all the issues of your life that have arisen since you were 23.  He said you still have evidence of depressive symptoms.  I'll read out what Mr Simmons also says,

'Ms [Heliotis] accepts that at the present time she needs to avoid any romantic entanglements and concentrate on herself.'

34You were assessed by both a clinical advisor, drug clinical advisor and a case manager.  You were found to be suitable, except for the problem insofar as the case manager is concerned (that is Ms Clark) of your accommodation.  Your sister cares for your older brother, your father who is now in his 80s lives with her, she has three children and she is unable to have you live with her while you are still using drugs and alcohol.  Nevertheless, it is clear that your sister remains remarkably supportive of you, she has appeared at both hearings in relation to the charges before this court.  She is certainly, for what it is worth from the court's observation, very supportive of you.

35It was hoped that with the assistance of a housing association at the gaol, some sort of accommodation could be found for you, other than the emergency accommodation which is available under a Drug and Alcohol Treatment Order in this court.  Unfortunately there is not.  You will be living at the Comfort Inn, in inner city Melbourne to start off with. 

36I agree that it is a big risk placing you in this accommodation Ms Heliotis, we have had quite a talk about it this morning.  Nevertheless, it is my view that you do deserve and do warrant the assistance of the measures that a Drug and Alcohol Treatment Order offer people who are placed on it.  You are now 39, you have used the admittedly limited time you have had in gaol well, you have spoken of your desire to turn your life around, to get back to some extent the sort of life you were able to lead before the fatal accident that occurred when you were 23.  You are never going to be the same person again Ms Heliotis.  Of course you're not going to be.  Nobody would be.  But that doesn't mean you have to live this life either.  There is a better life available for you, but you're going to have to work very hard with this.

37You, when you get released to the hotel, you're going to know exactly where to get hold of drugs.  You're going to know exactly how to go about it.  Mr Simmons talked about the fact that you get bored pretty quickly, is that right?

38OFFENDER:  I used to now I'm not, 'cause - 'cause I do a lot in gaol, I'm not as - I don't get as bored as…

39

HER HONOUR:  All right, yes.  One of the great advantages you've got

Ms Heliotis, is you've got Year 12.  You have got an education far beyond, you'll discover most of the people who are on a Drug and Alcohol Treatment Order.  You know how to go to a library.  You know how to go and join up and get some books.  You know how to get onto Narcotics Anonymous.  You know how to get out and about.  You have got a lot more in the way of skills than many, many people have who are on this order and you're going to need every one of them, and I urge you to use them.

40You are not condemned to living this life.  You don't have to go there.  It's not going to be easy for you to not go there, there's no doubt about that Ms Heliotis, but I believe, for what it's worth, it seems to me that you are the right age, you've got enough in the way of what your parents put into you when you were being brought up, to do this.  A lot of this is going to rely on you.  And so, in those circumstances I am prepared to place you on a Drug and Alcohol Treatment Order.  First, however I have to sentence you, but that sentence will be suspended on you being placed on the Drug and Alcohol Treatment Order.  All right?

41On Charge 1, you are sentenced to nine months' imprisonment.

42On Charge 2, you are sentenced to nine months' imprisonment.

43On Charge 3, you are sentenced to six months' imprisonment.

44On Charge 4, you are sentenced to 10 months' imprisonment.

45On Charge 4, you are sentenced to six months' imprisonment.

46On Charge 5, you are sentenced to nine months' imprisonment.

47On Charge 6, you are sentenced to seven months' imprisonment.

48On Charge 7, you are sentenced to seven months' imprisonment.

49On Charge 8, you are sentenced to 12 months' imprisonment.

50In relation to the charge of unlicensed driving, you are sentenced to two months' imprisonment and the charge of driving whilst disqualified you are sentenced to four months' imprisonment.  I'll have a chat with you Ms Hogan about cancellation.

51MS HOGAN:  Yes, Your Honour.

52HER HONOUR:  And possessing a prohibited weapon, which I don't think I mentioned the maximum penalty for, I think it's two years, isn't it?

53MS HOGAN:  Yes, two years, Your Honour.

54HER HONOUR:  That's two years.  And possessing a prohibited weapon, I am going to sentence - I'll sentence you to two months' imprisonment.

55The base sentence will be the sentence imposed on Charge 8, 12 months' imprisonment.  I order that three months of the sentence imposed on Charge 1, three months on Charge 2, two months on Charge 3, two months on Charge 4, three months on Charge 5, two months on Charge 6, two month on Charge 7 and then two months for the drive whilst disqualified and one month for the possessing a prohibited weapon, be served cumulatively.  So that should be two years and nine months.

56MS HOGAN:  I'm sorry Your Honour, I didn't hear you pass sentence in relation to the state false name and address.

57HER HONOUR:  To state false name and address would be one month and that will be concurrent.  You're right.

58MS HOGAN:  As Your Honour pleases.

59HER HONOUR:  In sentencing you, I have also had regard to your prior criminal history.  The two 2009 charges of culpable driving and negligently causing serious injury, which I do not regard as relevant in terms of this process.  In 2017, you were fined for obtaining a financial advantage by deception.  You also breached a term and condition of parole and you were fined $1500 in 2018 for obtaining property by deception, using counterfeit money and breaching conditions of parole.  So that should add up to two years and nine months.

60HER HONOUR:  Now what I'm going to do however, is I'm going to suspend that and you'll be placed on a Drug and Alcohol Treatment Order.  Now there are two parts of the order. There's what's called the core part and that lasts for two years and nine months.  All right.  Then there are the condition parts and they will last for two years or as further ordered.

61All right, now while you're on the what's called the treatment and supervision part, which is the core orders.  While you're on that you must not commit either inside Victoria, or out of it another offence punishable by imprisonment.  That doesn't mean you have to go to gaol for it Ms Heliotis, but if it's an offence of which you could be gaoled, like knocking off a box of matches, that will breach the order, all right?

62You must attend the Drug Court when you are required to do this.  You must report to Melbourne Drug Court House within two clear working days after the order is imposed.  You must report to and accept visits from a member of the Drug Court.  You must undergo treatment for alcohol and drug dependency as specified by the order or the Drug Court.  You must give notice of any change of address at least two clear working days before the change to a Drug Court officer.  You may not leave Victoria without the permission of the Drug Court and you must obey all lawful instructions from the Drug Court team.

63Then we've got the program conditions.  They are, you must submit for drug and alcohol testing as directed, you know that will be three times a week.

64OFFENDER:  Yes, Your Honour.

65HER HONOUR:  You must submit to detoxification or other treatment as directed.  You must attend vocational, education and employment programs as directed.  You would be a very good candidate for that.  All right?  You've got a lot more education than most people on this order, as I've said.  And you can follow-up you can actually get onto the Education Office and say what do you reckon, what can I do? You must submit to medical, psychiatric and psychological treatments as directed.  And I really urge you to use that.  There are two terrific counsellors, with Drug Court.  They're both what is called, trauma informed counsellors and you need this.  All right?

66OFFENDER:  All right.

67HER HONOUR:  So, just use it as much as you can.  You must live at emergency accommodation as directed by the Drug and Alcohol Treatment team until further order.  And look, be very active with Launch Housing, see what you can do.  All right?  There will be a curfew.  You must be at your accommodation between 9 pm at night and six in the morning.  You may not use a drug of dependence without lawful authorisation.  You must abstain from alcohol, so no drinking or drugs.  You must remain at your emergency accommodation as directed by the Drug and Alcohol Treatment team, and not visit or attend any other emergency accommodation that is not yours until further order.  That means, that if you get sick of it, you can't just pack up and go to another motel, all right?  You have to stay there.

68You must make contact with a general practitioner within 28 days, as directed by the Drug and Alcohol Treatment Court team.  You must do or not do anything else that the Drug Court considers necessary or appropriate regarding your drug and alcohol dependency and the personal factors that the Drug Court considers contributed to your criminal behaviour.

69Now, you're the second person I've put on a DATO this morning Ms Heliotis and I'm going to say to you what I said to the other person. No doubt, you were very unwell when you first went to gaol and detoxed.  All right?  You've actually made a huge step point, just by detoxing, all right?  If you can manage to stay off drugs when you're out, you will go down this order so much better.  Now, that is not going to be easy, a lot of the counselling's going to be hard for you.  You're going to be looking at a lot of really difficult things that have happened in your life.  And that's in order to come out the other side.  You actually have to go through this, to come out the other side Ms Heliotis.  You will have the support of everybody on the Drug Court team, all right?  Are you prepared to enter this order?

70OFFENDER:  Yes, Your Honour.

71HER HONOUR:  Thank you, very much, all right.

72OFFENDER:  Thank you, Your Honour.

73

HER HONOUR:  All right, we'll get you to sign that, thank you.  All right,

Ms Heliotis, I'm going to leave the Bench, and Ms Kasett we'll see how we go, all right.

74OFFENDER:  Thank you, Your Honour.

75MS KASSETT:  Thank you very much, Your Honour.

76MS HOGAN:   I apologise for rising Your Honour.

77HER HONOUR:  No, no, I asked you to it's about the licence isn't it?

78MS HOGAN:  Yes, licence and also does Your Honour have to declare PSD at this stature.

79HER HONOUR:  No, I don't.

80MS HOGAN:  No.  And there's also a forfeiture order sought by the prosecution.

81HER HONOUR:  Yes, well there'll be no problem with that.

82MS HOGAN:  Yes and - - -

83HER HONOUR:  I don't know if I've got that - have we got that?  Anyway we'll sign it, we'll get it to you Ms Hogan.  Thank you.

84MS HOGAN:  My instructor's provided draft orders.  Thank you and licence cancellation is 24 months minimum.

85HER HONOUR:  It's mandatory is it?

86MS HOGAN:  Yes, because the Charge 4 was committed whilst under the influence of drugs or alcohol, so it's 24 months.

87HER HONOUR:  They don't make reform easy do they?

88MS HOGAN:  No.

89HER HONOUR:  Charge 4?

90MS HOGAN:  Yes, the aggravated exposure of emergency worker, Your Honour.

91HER HONOUR:  I thought that was Charge 8?

92MS HOGAN:  Apologies.  I must be - it's that charge Your Honour.  I think, it was originally Charge 4 on the indictment before we had all the matters joined, so yes, Charge 8.

93

HER HONOUR:  Is there any way I can back date that, she hasn't been driving

for - - -

94MS HOGAN:  Let me have a look at the section, I'm not sure you can.

95HER HONOUR: Look at the Road Safety Act, which is now the size of -

96MS HOGAN: It's in the Sentencing Act, Your Honour.

97HER HONOUR:  Yes.  Well that's now the size of a minor bible.

98MS HOGAN:  Yes, so it's s89.

99HER HONOUR:  Yes.

100MS HOGAN:  And it's 89, sub-section - - -

101HER HONOUR:  It's upon conviction isn't it?

102MS HOGAN:  Sub-section (2).

103HER HONOUR:  Yes.

104MS HOGAN:  Sub-section (b).  So 89(2)(b).

105HER HONOUR:  Yes, I don't think I can.  Absolutely right, I'd like to but I - 89 -

106MS HOGAN:  sub-s(2)(b).

107HER HONOUR:  If a person is found guilty, or convicted, for a serious motor vehicle offence.  All right.  Well I make it - all right, well when was the plea?

108MS HOGAN:  It was - I'm just 89(b) says, 'period of disqualification' hold on.

109HER HONOUR:  Yes, not less than 24 months.  But it's - - -

110MS HOGAN:  No, I'm just saying it commences on the day that the order imposing it is made, or any later day that the court specifies on the order.  But that's actually, yes, just bear with me one moment.

111HER HONOUR:  No, but it also says, 'If a person is found guilty or convicted of a serious motor vehicle offence', when was it that Ms Heliotis entered her plea of guilty.

112MS HOGAN:  It was - well the plea was on 7 November.

113HER HONOUR:  But she then - no but - - -

114MS HOGAN:  But in terms of her - of the indictment.

115HER HONOUR:  Actual - the arraignment?

116MS HOGAN:  I think it was on that day that she was arraigned.

117HER HONOUR:  Do we have the arraignment date, girls?

118ASSOCIATE:  It was the day that - - -

119HER HONOUR:  Pardon?

120ASSOCIATE:  It was the day that she was arraigned.

121MS HOGAN:  Unless it was - - -

122HER HONOUR:  All right, I'm going to back date it to 7 November.

123MS HOGAN:  As the court pleases.

124HER HONOUR:  All right.  That was the date.  All right, no driving either.  Please - and look honestly, when I was defence barrister I used to act for blokes, they might as well have done armed robbery, they spent so much in time - in time inside for drive whilst disqualified.  All right, just don't do it, all right,  No car.  I wish you all the very best, I'm sitting in Drug Court on Thursday.  I'll look really forward to seeing you, all right?

125MS HOGAN:  Thank you very much.

126HER HONOUR:  That's all right.  All the very best.  That's it Ms Kasett.  I thank counsel.  Thank you so much for all your assistance in this matter, very appreciative.

127MS KASETT:  Thank you, Your Honour .

128HER HONOUR:  All right, is there anything else I need to attend to, we'll get the forfeiture order to you?

129MS HOGAN:  Thank you, Your Honour.

130HER HONOUR:  Thank you.  Yes, thank you we will stand down.  Well I'll be going downstairs and coming straight back up again.  Thank you very much.

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