DPP v Gardiner & Anor [2025] VCC 1709

1. The Crown tendered the summary of prosecution opening as Exhibit A. A summary of both of your offending is as follows:
2. Mr Gardiner, you met the victim in 2022. He initially advised you about investing in cryptocurrency. Your contact with the victim lasted for about a month in 2022, and then you had no contact with him again until 2024.
3. In March 2024, you emailed the victim, accusing him of having stolen $20,000 from you in May 2022 in the course of cryptocurrency trading. The email contained a veiled threat that you had contacted men who could find the victim. You sent a second email stating you knew where the victim's mother lived and that you would contact her.
4. On 9 July 2024, the victim saw you walking with two other people near his home address. He reported the matter to police and installed a CCTV camera.
5. On 11 July 2024, both you and Mr Thickens returned to his home address. You, Mr Thickens, lured the victim outside by telling him you were there to tow his car away. You, Mr Gardiner, got out of a nearby car. You accused him of stealing money, and both you and Mr Thickens asked him about missing money. The victim got into the back seat of your car. You, Mr Gardiner, and a third person present in the car used methylamphetamines and GHB.
6. The victim repeatedly told you he did not have your money and he had not stolen it. The two of you, Gardiner and Thickens, along with a third person, took the victim into his home. His partner was present. You, Mr Gardiner, demanded various amounts of money from him, ranging from $14,000 - $19,000. You stated that you should go to a café so that the conversation would not traumatise the victim's partner. The victim refused, but you took him out of the bedroom.
7. You drove to a bank ATM. The victim withdrew $1,000, and you, Mr Gardiner, took the money from him.
8. Mr Thickens, you drove the car to a car park while you, Mr Gardiner, demanded the victim make a loan application. An online loan was preapproved at $14,000, but you, Mr Gardiner, demanded $19,000. The application was then rejected. Mr Gardner, you divided the thousand dollars cash between yourself and Mr Thickens.
9. The victim rang a friend who transferred $5,000 to the victim's account. The victim transferred $2,000 to Mr Thickens, with $3,000 pending. Astutely, the victim's friend used the 'Find My' app to trace the victim's location. He then notified the police.
10. In the meantime, you, Mr Thickens, got out of the car and left. Mr Gardiner, you got in the driver's seat and drove off. At various points, you threatened to shoot the victim or to burn his face off with a blowtorch.
11. Police intercepted the car in Keysborough with you driving, the third person in the back seat, and the victim in the front passenger seat. When you were searched, police found an imitation silver pistol.
12. You were disqualified from driving at the time of interception. The car was fitted with fraudulent registration plates.
13. Mr Gardiner, you were interviewed by police and made partial no comment answers in your record of interview, mixed with admissions to interactions with the victim, but denials of wrongdoing.
14. Mr Thickens, you were arrested on 21 November. You were interviewed by police and denied any wrongdoing.
15. The third person was initially charged, but then the charges were withdrawn.

1. I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
2. The objective gravity of the offence of blackmail can first be measured by the maximum penalty of 15 years set by Parliament.
3. Although your offending was not accompanied by violence, and although the weapon in your possession, Mr Gardner, was not actually produced and brandished, the demands were accompanied by threats which were intended to create a genuine fear and anxiety in the victim, with the ultimate intention that he would hand over to you a considerable amount of money.
4. Moreover, the offence was committed by two of you. Mr Thickens, your role was to create a numbers advantage and to provide a further air, whether overt or not, of intimidation.
5. The offending was carried out by you, Mr Thickens, over a two and a half hour period, and your role was somewhat shorter, Mr Thickens. The victim felt compelled to remain in your company when you went with him into his own home, where he lives with his partner, and then in the car as you drove around the south-eastern suburbs. Although no victim impact statement was made, one can readily imagine the fear that he felt. Further, this can be implicitly gleaned from the fact that he gave you cash, transferred money to you and made an online loan application from the car.
6. I shall consider the moral culpability of each of you separately.
7. Mr Gardiner, although you have no prior convictions, you are the principal offender and architect of this crime. Further, you preceded the events of

11 July, with threatening emails in March 2024. It is apparent from the victim's statement to police that it was you and not Mr Thickens who made the demands and the threats. I am not required, and I do not make any finding as to whether your original purported grievance was legitimate. In any event, you accept that you had absolutely no right to act as you did in demanding money from the victim. Although it does not mitigate your offending at all, I accept that your daily and prolific drug use was adversely affecting all aspects of your life, judgment and reasoning at the time of this offending. 8. Mr Gullaci SC submitted on your behalf that I should categorise the offending as low to mid-level. Although it involved a measure of deception to lure the victim out of the property, the offending was neither well planned nor particularly well executed, leaving a considerable evidentiary trail behind you. I accept Mr Gullaci's characterisation that your offending, whilst serious, was simplistic and that your detection and arrest were inevitable. 9. Mr Thickens, whilst I accept that your role was subordinate to Mr Gardiner and lesser in its extent, you must still bear considerable culpability for your offending. You were several months into a drug and alcohol treatment order, and had only been released from a seven-day period of imprisonment in relation to that order the day before you committed this offending. 10. Sentencing objectives of deterrence, denunciation and just punishment must dominate the sentencing consideration. Both of you must be sentenced to terms of imprisonment for this offending.

1. Commencing with you, Mr Gardiner, you were born in July 1993 and are now aged 32.
2. You were raised in Melbourne and have several full, half, and step-siblings. Your parents separated when you were four, and your mother remarried, with this relationship exerting a degree of control over you.
3. Your father mostly worked overseas after the separation. When you were 16, your father returned, and you went to live with him. He was less strict than your mother; you took advantage of this to get into partying and drug taking.
4. You completed high school up to Grade 12. Your time in school was marked by severe social problems and bullying, in addition to pervasive learning difficulties. As an adult, you were diagnosed with ADHD, which may have contributed to your learning difficulties.
5. After finishing school, you started a pre-apprenticeship in carpentry and worked as a removalist. While your drug use derailed your attempts to finish your pre-apprenticeship, you eventually completed your carpentry apprenticeship and established your own construction company. Again, your escalating drug use caused your business to deteriorate.
6. The references speak of your work ethic and competence as a builder. With a clear head from your enforced abstinence from drugs whilst in custody, you have expressed a strong desire to return to the construction industry, although those close to you consider you would be wise to return to the building industry as an employee, at least initially.
7. You have been in several relationships throughout your life. Of note, you were married at age 26; however, your drug use and long work hours impacted the relationship, which has since ended. A subsequent long-term relationship of yours was again ended by your partner due to your heavy drug abuse and erratic behaviour, and required an intervention order to be placed on you, which you breached on multiple occasions. You are presently single.
8. You commenced drinking alcohol at 16 and would binge drink at parties on weekends. You began using amphetamines (speed), MDMA, methamphetamines, cocaine and GHB during your late teens and early twenties. Your increased drug use coincided with your increasing socialisation with those involved in criminal activity. You used meth and GHB more or less daily up until being remanded in March 2025. You have expressed a desire to remain abstinent towards drugs and have taken some steps to realise this goal.
9. With respect to your mental health, you report periods of sadness and anxiety throughout childhood, which you attribute to your parents' divorce, your learning difficulties, and your experiences of bullying and social alienation.
10. You have reportedly been diagnosed with depression, anxiety, PTSD and ADHD, although this has not been verified.
11. In July of this year, you were assessed by psychologist Dr Matthew Barth, who arrived at the following conclusions:

a) You were presently experiencing moderate levels of depressive and anxiety-related symptoms. > > b) Your moods have varied throughout adulthood, primarily due to the breakdowns in your relationships and self-esteem issues. > > c) Your moods have stabilised since incarceration, and your present symptoms do not meet DSM-5-TR criteria for any mental disorder. > > d) Your thought processes are free from disorder, but your social reasoning is unsophisticated and governed by short-term gratification. > > e) You have previously suffered from stimulant-use disorder; however, this is in remission due to your abstinence whilst in custody. > > f) You were able to show insight into your substance use problems, but have a simplistic understanding of relapse prevention strategies. Further intervention is needed to avoid relapse when you are released into the community.

12. Turning now to you, Mr Thickens, you were born in September 2000 and are now aged 25.
13. You have one full-sibling and seven half-siblings. Your parents divorced when you were three, and you then lived with your mother in Queensland.
14. Your parents had ongoing custody disputes, and your father and grandmother took over your care when you were aged 8 or 9.
15. As a child, you report having behavioural difficulties and were diagnosed with ADHD. You were expelled from school at an early age but returned and were educated to about a Year 10 level.
16. Although you looked up to your father, his influence on you was diabolical. He introduced you to criminal offending and to drug use from an early age. You used to accompany your father on his criminal offending and then started to commit your own offences to gain his acceptance.
17. You and your father were evicted from your grandmother's property because of your father's drug use. Your younger sister died. You became homeless and firmly entrenched in a milieu of homelessness, drug taking and criminal activity.
18. You used cannabis around the age of 14, but then commenced using methylamphetamine. Your drug use quickly grew, but ceased when you turned 18. You relapsed after your grandmother's death and your relationship breakdown.
19. At age 16, you were ordered to return to Queensland to live with your mother by the Dandenong Children's Court. You returned to Victoria in breach of your order. You have been in and out of juvenile detention while you were between the ages of 14 and 18.
20. At around age 19 or 20, you moved in to live with your partner. You had one child with your partner and were abstinent from drugs and working for a period of 3 years. The relationship broke down after the death of your grandmother and when you discovered that your partner had been unfaithful. This caused you to relapse into drug abuse and attempt suicide.
21. You have a three-year-old stepdaughter and a four-month-old son with your current partner. You report having struggled as a couple due to your mutual drug abuse, but that you are now stronger due to abstaining from drugs.
22. You have also been in and out of trades your whole life, with your longest period of sustained employment being for 12 months.
23. At the time of your offending behaviour, you were abusing in excess of one gram of methamphetamine per day.
24. You were placed on a drug and alcohol treatment order in February 2024. Your start on the order was rocky at best, and you continued to use drugs. You were sent to prison for seven days in July 2024 for non-compliance with the order. As I have noted, this offence occurred the day after your release. It is alleged that you then committed other offences in this period, and I was told you faced two trials for aggravated carjacking, which are to be heard in 2026.
25. On 22 October 2024, you were assessed by psychologist Dr Aaron Cunningham.
26. Dr Cunningham described you as presenting with

'...unresolved childhood trauma and abandonment. In the context of his childhood trauma, Mr Thickens struggles to regulate emotional states and tolerate distress. He presents with significant symptoms of anxiety, depression and ideas of persecution. Mr Thickens' unresolved trauma and emotional dysregulation contributes to his drug abuse as a form of escape.'

1. Dr Cunningham was of the view that you pose a moderate to high risk of further offending, and that any relapse into drug use would increase your risk to 'high'.
2. Dr Cunningham stated that your prospects of rehabilitation would improve if you were to cease drug abuse, improve your mental health, and maintain stable accommodation and employment. He further believed that you would receive great benefit from engaging in an inpatient drug rehabilitation program, which is exactly what you did.
3. On 2 December 2024, you commenced The Cottage residential drug rehabilitation program. You successfully completed the course in March 2025. The general manager, Aaron Gilhooly, wrote that you started the course with a strong desire and willingness to remain drug-free, and that you have taken on a level of responsibility and shown commitment to your recovery.
4. Returning to the community after the completion of your rehabilitation course, you have remained drug-free and committed to counselling sessions and medical treatment as required. You are close to progressing to phase 3 of your drug and alcohol treatment order. You are living with your partner and children in Clyde North. You returned to playing football this year. One of the references provided to me speaks of your team spirit and tenacity as a player. You have been working and hope to take a pre-apprenticeship in carpentry.
5. I received character references from family members, teammates and your employer. They speak of the real efforts you have made to turn your life around.

1. Mr Gullaci SC, who appeared on your behalf, Mr Gardiner, submitted that the following factors should operate to mitigate your sentence:

a) You made an early offer to plead guilty to these charges. The offer was initially rejected, and your counsel cross-examined the victim at committal. After, and as a result of the cross-examination, the OPP accepted your original offer. Mr Gullaci submits that your plea demonstrates remorse. > > b) The admissions you made concerning your offending were telling. > > c) Your lack of any prior criminal record (although it is conceded you have matters outstanding before the Ringwood Magistrates' Court on 4 December 2025). > > d) The productive use of your time in custody and your abstinence from drug use. > > e) Your prospects of rehabilitation, he submits, are excellent, given your significant family support, work history and skills. Whilst it is conceded your prospects for rehabilitation depend on your abstinence from drugs, you have now been drug-free for several months (albeit in a controlled environment) and have a real determination to remain abstinent. > > f) Availability of Renzella time - applying the principle in Karpinski [2011] VSCA 94, you have 236 days presentence detention, excluding today, available to you.

2. Ms Simpson, who appeared for you, Mr Thickens, submitted:

a) Early offer and plea of guilty to these charges. > > b) You have made wholesale changes to your life post-offending. > > c) You have been able to secure employment - you are working and have good pro-social supports. > > d) You had a lesser role in the offending, no participation in planning and your role in the offending was ultimately unsophisticated - you did not make any direct verbal threats to the victim. > > e) You have available to you the general principles enunciated in the High Court case of Bugmy and the Court of Appeal case of Herrmann. > > f) Your engagement with DATO, and the privately funded program at The Cottage, is such as to invoke the principles of the Court of Appeal in Akoka [2017] VSCA 214, that is, I can take the time you have spent in residential rehabilitation into account.

3. Ms Caruso, who appeared for the Crown, conceded that a combination sentence was in range for you, Mr Gardiner, but maintained that the only appropriate sentence for you, Mr Thickens, is a term of imprisonment by way of a head sentence and non-parole period.
4. In relation to you, Mr Thickens, the Crown does concede, however, that:

a) The principles in Herrmann and Bugmy do have a role to play in your case; > > b) Your role was less culpable than Gardiner's; and > > c) You have done considerable work towards your rehabilitation since your offending.

1. Mr Gardiner, I am satisfied that:
   • Taking into account all of the matters that I have outlined,
   • The submissions of your counsel, Mr Gullaci,
   • The considered concession on sentence made by the prosecution through Ms Caruso, and
   • The assessment of your suitability for a CCO;

that a combination sentence of imprisonment with a CCO is appropriate in your case. I shall return to discuss the details of that after I consider the position in relation to Mr Thickens.

1. Mr Thickens, on instructions, as I say, Ms Caruso submitted that in your case, a term of imprisonment with a non-parole period is the appropriate sentence for you. Ms Caruso submitted that, in any event, the time you have spent in presentence detention to the date of the plea was insufficient to satisfy the sentencing principles.
2. In my view, there are 11 factors that need to be considered in determining the appropriate sentence to impose for your offending:
   1. Your early plea of guilty;
   2. Your role in the offending was serious but subordinate to Gardiner, and of lesser duration;
   3. You have (and the Crown concedes) general Bugmy and Herrmann considerations arising from the very significant adversities and hardships you endured in your upbringing;
   4. Youth - you were 23 at the time of your offending, and you are now only 25. The principles of Mills and Azzopardi should still have some application in your case, notwithstanding your age now, and the seriousness of the offending;
   5. You should receive the benefit of the Akoka principles, for the fact that you completed a 3-month residential program;
   6. You are now (and have since early March 2025) made real progress on your DATO, and you are now about to progress to Phase 3 of that Order. You have remained drug-free for 15 months, substantiated by regular drug screening whilst you are in custody, during the residential order, and since;
   7. You have made the most of your time in the community since your release from the residential order, playing local football;
   8. Stable relationship, and caring for young children in your family;
   9. Employment since early August 2025, and your employer, who is a Christian man, who knows of your situation, continues to offer you the prospect of employment going forward;
   10. You have extensive prior matters, but the majority of those matters are Children's Court matters. You have six previous appearances in the Magistrates Court, and have previously undertaken a CCO, but the progress on your DATO shows that you can respond to court orders when motivated;
   11. You were assessed as suitable to undertake a further CCO.
3. I consider your prospects for rehabilitation must be assessed as fair. You have the assumption from the cases that you can be rehabilitated, given your young age. Although you have come up against a deal of adversity growing up, you have shown that you can avoid a life of criminal offending and drug use, just recently, and in 2018 - 2022, when you were out of the court system for four years.
4. The order I propose in your case is a combination sentence of imprisonment with a CCO. In my view, a sentence of imprisonment with a non-parole period is inappropriate, as you still have time to run on the DATO, and a number of the conditions I propose will complement the conditions under the DATO on a CCO.
5. Mr Thickens, you were assessed as suitable for a CCO with special conditions that you undertake supervision, drug abuse and dependency treatment, mental health assessment and treatment, and offender-specific programs.

Mr Thickens, you previously indicated your agreement to undertake a community corrections order if one was imposed as part of the sentence in this case. 6. Can I just have you indicate to me that you do agree to an order in this case? You do? Thank you. Mr Thickens, I will take you and Mr - there are a number of conditions I need to run through with both you and Mr Gardiner, so I will run through them in a moment. 7. Mr Gardiner, you were assessed as suitable for a CCO, but the risk assessment tools assessed you as remaining a medium risk of reoffending. A lot depends on your commitment to remaining drug-free. It seems to me that with your developed work skills both in running your own business and as a carpenter, and for the fact that you have a good work history and you have considerable pro-social supports, you do, as I say, have reasonable to good prospects for your rehabilitation. 8. On the order, you were assessed as suitable for conditions of drug treatment and rehabilitation, mental health treatment and rehabilitation, other treatment as Community Corrections may consider appropriate, and to undergo supervision. You also indicated your consent to undertake an order. You do? Thank you. 9. There are a number of conditions that attach to a community corrections order, and so I need to ensure that you understand them, both of you, that you understand the ways in which you can breach an order, and just determine whether, taking those matters into account, you are still willing to undertake an order. 10. The following general terms attach to every community corrections order. That is, you must not commit, whether inside or outside Victoria, during the period of the community corrections order, an offence punishable by imprisonment, whether or not a term is actually imposed. So, for example, if you were to shoplift a chocolate bar from a 7-Eleven, you would not go to prison for that, but it is still the offence of theft, and you would - it is an offence punishable by a period of imprisonment. 11. Mr Gardiner, do you understand that, and you understand that, Mr Thickens? Thank you. The second is that you must comply with any obligation or requirement that is prescribed by Community Corrections Victoria. Do you understand that, Mr Gardiner and Mr Thickens? Yes? Thank you. 12. You must report to and receive visits from the Secretary during the period of the order; that is, Corrections can turn up at your place of work or your home. Do you understand that? I think both of you say yes. You must report to the Community Corrections Centre specified in the order within two clear working days of your release. For you, Mr Gardiner, that is the Ringwood Corrections Centre. For you, Mr Thickens, it is Dandenong. 13. You must notify the Community Corrections Centre of any change of address or employment within two clear working days after the change of address or employment. Do you both understand that? Thank you. You must not leave Victoria without the permission, either generally or specifically, of Community Corrections. Do you understand that? Thank you. 14. You must comply with any direction that is given by Community Corrections, which is necessary to ensure you are compliant with the order, and that direction may be given either by speaking to you or in writing. Do you both understand that? 15. The ways in which you may breach a community corrections order are by either not complying with the order or by committing further offences during the life of the order. Do you understand that, Mr Gardiner? Thank you.

Mr Thickens? Thank you. Understanding now the general conditions of a community corrections order, as well as the specific conditions that I have outlined to you both, tailored to both of you, and taking into account the means by which you breach an order can I ask you, Mr Gardiner, do you still consent to me making an order for a combination sentence of imprisonment with a community corrections order? 16. OFFENDER GARDINER: Yes, I do, Your Honour. 17. HIS HONOUR: Thank you. Mr Thickens, do you still consent? 18. OFFENDER THICKENS: Yes, Your Honour. 19. HIS HONOUR: Thank you. That being the case, I order in your case,

Mr Gardiner, on the charge of blackmail, you are convicted and sentenced to 12 months' imprisonment with a community corrections order for a period of 15 months. On the charge of theft, you are convicted and sentenced to two months' imprisonment, which is to be served concurrently with the base sentence. 20. On the charge of possession of an imitation firearm, you are convicted and sentenced to three months' imprisonment, which is concurrent with the base and all other sentences. On the charge of driving whilst disqualified, you are convicted and fined $500. The licence disqualification is discretionary. I will come back to you about that. 21. On the charge of fraudulently using plates, Mr Gardiner, you are convicted and sentenced to a term of one month imprisonment, which is concurrent. The total effective sentence, therefore, is a sentence of 12 months' imprisonment in combination with a community corrections order of 15 months. I declare the period of 236 days of presentence detention reckoned as already served, excluding today. 22. Mr Thickens, on the charge of blackmail, you are convicted and sentenced to seven months' imprisonment. On the charge of theft, you are convicted and sentenced to one month of imprisonment to be served concurrently. The total effective sentence is a term of seven months' imprisonment, to be served in combination with a 12-month CCO. I have decided not to impose a longer CCO on you because you have already been undertaking the DATO, you have still got more time to go, and I want to give you the best chance you have going forward into the community. 23. I declare a period of 139 days' presentence detention, not including today, reckoned as already served in your case. Mr Thickens, I know it is a bit of a blow to you, but you have got about six weeks to go. I want you to hang in there - about 10 weeks, I think - hang in there, do the best you can, get through it and remain drug-free when you get out into the community, and I can assure you that between the DATO and the CCO, you will get any help you need. 24. I am the supervising judge on the order. I have not put in any judicial monitoring, but if anything goes wrong along the way and you come back before me, just do the best you can, and we will try to sort it out. Thanks,

Mr Thickens. Mr Gardiner, you do not need the pep talk. You have just got to go forward at the end of your period of imprisonment, get through the CCO and get back on with your life. 25. Any other matters, Ms Vaughan? 26. MS VAUGHAN: Yes, Your Honour, I confirm that a driver's licence order is not sought in relation to Mr Gardiner. 27. HIS HONOUR: There will be no period of disqualification on the drive whilst disqualified for you, Mr Gardiner. I will stand down, thank you.