Dieni v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0072

ANTHONY DIENI	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	BEACH, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2021
DATE OF JUDGMENT:	24 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 16
JUDGMENT APPEALED FROM:	[2020] VCC 1377 (Judge Riddell)

---

CRIMINAL LAW – Sentence – Appeal – Attempting to pervert the course of justice (6 charges), trafficking in drug of dependence (2 charges), false accounting, possessing firearms (2 charges) – TES of 14 years, with NPP of 9 years – Manifest excess – Crown concession that TES and NPP manifestly excessive – Crown concession that specific individual sentences manifestly excessive – Complaints of specific error not made out – Fresh evidence – Serious offending in misleading courts when giving evidence in bail/sentencing proceedings – Courts needing to be able to rely on such evidence – Very significant utilitarian value of applicant’s plea of guilty – Applicant aged 74 with significant health issues – Appeal allowed – Applicant resentenced to TES of 9 years, with NPP of 5 years.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Valos Black & Associates
For the Respondent	Mr P L Bourke QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
T FORREST JA:

For many years going back into the 1980s, the applicant was involved in the operations of a drug and alcohol rehabilitation charity known as the St Paul’s Prevention Rehabilitation (‘St Paul’s’). On 18 December 2019, the applicant pleaded guilty to six charges of attempting to pervert the course of justice, two charges of trafficking in a drug of dependence, one charge of false accounting, one charge of possessing a general category longarm and one charge of possessing an unregistered general category handgun. The applicant’s offending occurred between 2012 and 2017.

At the time of his offending, the applicant was the coordinator of, and a counsellor for, St Paul’s. In the course of his employment, the applicant gave evidence from time to time in bail applications, plea hearings and other court-related matters. The attempting to pervert the course of justice charges to which the applicant pleaded guilty relate to six matters (Grae, Martin, Raydan, Violatzi, Elabed and Georgiou) in which the applicant had an involvement in the course of his employment.

Specifically, the attempting to pervert the course of justice charges arose out of the applicant giving undertakings to courts in bail applications, which undertakings the applicant failed to comply with; or taking steps to deny sentencing courts knowledge of the true facts and circumstances of cases before them; or giving false evidence; or agreeing to mislead Corrections Victoria and/or a court as to the true circumstances of an applicant’s compliance with his community correction order; or attempting to mislead a court as to the true circumstances of an accused’s compliance with bail conditions.

In relation to the charges of trafficking in drugs of dependence, the prosecution case was that the applicant provided drugs to numerous people. In relation to the charge of false accounting, the prosecution case was that, over a number of years, in the course of his employment with St Paul’s, the applicant submitted documents to Consumer Affairs Victoria (‘CAV’) containing false declarations made with a view to gain for himself. The benefit derived by the applicant was the undocumented receipt and use by him of $448,805.76. In relation to the firearm charges, the applicant was found in possession of these loaded weapons when search warrants were executed on the house he shared with his wife.

On 4 September 2020, following a plea hearing conducted on 23 June 2020 and 3 and 13 August 2020, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Attempt to pervert the course of justice (Grae), common law and s 320 Crimes Act 1958

25 years

7 years

1 year

2

Attempt to pervert the course of justice (Martin), common law and s 320 Crimes Act 1958

25 years

7 years and 4 months

Base

3

Attempt to pervert the course of justice (Raydan), common law and s 320 Crimes Act 1958

25 years

6 years

8 months

4

Trafficking in a drug of dependence (cocaine and methylamphetamine), s 71AC Drugs, Poisons and Controlled Substances Act 1981

15 years

2 years

6 months

5

Trafficking in a drug of dependence (diazepam, oxycodone and alprazolam), s 71AC Drugs, Poisons and Controlled Substances Act 1981

15 years

1 year

—

6

Attempt to pervert the course of justice (Violatzi), common law and s 320 Crimes Act 1958

25 years

7 years

1 year

7

Attempt to pervert the course of justice (Elabed), common law and s 320 Crimes Act 1958

25 years

6 years and 6 months

10 months

8

Attempt to pervert the course of justice (Georgiou), common law and s 320 Crimes Act 1958

25 years

6 years and 6 months

10 months

9

False accounting, s 83(1)(b) Crimes Act 1958

10 years

4 years

22 months

10

Possess a general category longarm, s 6(1) Firearms Act 1996

2 years

1 month

—

11

Possess an unregistered general category handgun, s 7B(1) Firearms Act 1996

7 years

3 months

—

Total Effective Sentence:

14 years

Non-Parole Period:

9 years

Pre-Sentence detention:

283 days

Section 6AAA statement:

17 years with a non-parole period of 13 years

On 2 March 2021, some six months after the applicant was sentenced, the sentencing judge (with the applicant’s consent) made a pecuniary penalty order in the sum of $448,805.76, pursuant to s 60 of the Confiscation Act 1997. This order made the applicant liable to pay that sum to the State.

The applicant now seeks leave to appeal against sentence. His proposed grounds of appeal are as follows:

1.The sentencing judge erred in her assessment of the gravity of the attempt to pervert the course of justice charges (and the sentencing discretion thereby miscarried) as follows:
(a)in sentencing on charges 1, 2, 6 and 8 as though the applicant had committed perjury when giving evidence on the bail applications in circumstances where such an act had not been particularised in the charges and where, in any event, it was not open on the evidence so to find;
(b)in finding the offending was aggravated by the applicant’s role in the justice system;
(c)in finding that the applicant’s offending was his ‘modus operandi day in day out over a period of 10 months’.

2.The sentences imposed on charges 1–3 and 6–9, the orders for cumulation on charges 1, 3, 6–9, the total effective sentence and non-parole period are manifestly excessive in all the circumstances.
3.By reason of fresh evidence arising since the date of sentencing demonstrating the true significance of facts in existence at [the] time of sentence, a different sentence should be imposed to avoid a miscarriage of justice.

The fresh evidence referred to in proposed ground 3 was the making of the pecuniary penalty order six months after the applicant was sentenced. Shortly before the hearing in this Court, the respondent filed further submissions in respect of proposed grounds 2 and 3. In those further submissions, the respondent conceded that the total effective sentence and the non-parole period were manifestly excessive. The respondent also conceded that the pecuniary penalty order constituted fresh evidence and could be considered by this Court. Notwithstanding these concessions, however, this Court must consider for itself whether the sentence imposed by the judge was manifestly excessive and, if so, what sentence should now be passed. We thus turn to consider the substance of the application for leave to appeal.

Circumstances of the offending

It is necessary for us to set out the circumstances of the applicant’s offending in some detail in order to sufficiently describe the extent and seriousness of the offending.

Charge 1: attempting to pervert the course of justice (Grae)

On 22 December 2016, the applicant gave evidence at the Melbourne Magistrates’ Court in support of 23-year-old Jake Grae in his application for bail. The applicant gave evidence that Grae would be required to see him twice weekly as part of the rehabilitation program with St Paul’s; that he had spoken to Grae and told him that his participation in the program would require him to attend appointments, as required, and to provide a drug test when asked; and that if Grae failed to comply, the applicant would have no hesitation in contacting the informant. The applicant gave an undertaking to the Court that he would report any breaches of bail conditions by Grae to the informant.

Grae was granted bail subject to several conditions including a condition that he comply with the applicant’s lawful directions and participate in the program offered at St Paul’s.

Notwithstanding the evidence the applicant had given to the Court, on five separate occasions between 26 June 2017 and 12 September 2017, at the request of the applicant, Grae supplied and agreed to supply him with in excess of 3.5 grams of methylamphetamine and 8 grams of cocaine. The applicant knew that Grae was trafficking in drugs of dependence, but he failed to report this to the informant.

The applicant’s participation in Grae’s drug trafficking had a tendency to pervert the course of justice because the drug trafficking breached the court-ordered bail agreement requiring the applicant to provide rehabilitation to Grae, and for Grae to participate in that rehabilitation. The circumstances of the trafficking also involved a breach by the applicant of the sworn undertaking he had given to the Court.

Additionally, on a number of occasions, the applicant and Grae had discussions about Grae having used substitute urine in a number of urine drug screens. In July 2017, Grae told the applicant that he had submitted another person’s urine, which had then tested positive for methadone. Grae asked the applicant what they could do about this, to which the applicant replied, ‘I’m going to have to fucking pull a fucking shifty and after I show it to you, destroy it’. Another suggestion made by the applicant was, ‘There is only one way we can beat this, and that’s to get a lot of clean tests through’. The applicant told Grae that if copies of the tests were presented in court and the applicant had to explain it, he could state that he knew that the test was a false reading, and so he had destroyed it. Additionally, the applicant said to Grae that he would need a lot of clean tests to make the test with methadone in it seem insignificant.

Grae told the applicant that he had used the same person’s urine for three other tests which came up clean. The applicant told Grae that he would organise urine from a different third party, to make sure that future tests were clean.

The applicant arranged for a doctor to attend at St Paul’s to provide Grae with documentation for urine testing which was to be ‘unsupervised’ contrary to usual practice. As the judge put it, the purpose of this was obvious — namely, to enable Grae to use third party urine instead of his own;[1] and also to conceal from testers, and ultimately from the Court, the presence of drugs of dependence in Grae’s urine.[2]
[1]DPP v Dieni [2020] VCC 1377, [24] (‘Reasons’).
[2]Ibid [25].

Between 13 June 2017 and 17 July 2017, Grae supplied three samples of urine from third parties for testing. In each case, drugs of dependence were not detected. The applicant cooperated in Grae’s use of third party urine. His actions concealed the commission of the offence by Grae of using drugs of dependence, and the breach by Grae of his bail conditions. Those actions had a tendency to pervert the course of justice.

Charge 2: attempting to pervert the course of justice (Martin)

On 26 April 2017, the applicant gave evidence at the Broadmeadows Magistrates’ Court in support of 39-year-old Patricia Martin’s application for bail. It was proposed that, if bailed, Martin would attend intensive supervised drug rehabilitation with the applicant. In evidence, the applicant stated that Martin’s participation would require her to attend at his office at least once a week, and for her to undergo drug screening tests.

The applicant stated that he would contact the informant should Martin fail to comply with any conditions. That included a promise that he would report any failed drug test. He also said that if he received any information that she was associating with people who used drugs or who were drug dealers, he would give her a warning. He said that he would have no control over Martin trafficking drugs, but would support her rehabilitation from drug use.

The applicant told the magistrate that he had a responsibility to the Court, and for his own reputation, to ‘do the right thing by the court’.

Martin was granted bail, with various conditions including that she attend on the applicant for rehabilitation at St Paul’s, and that she not possess or use drugs of dependence. Despite this, on several occasions, the applicant did not report when Martin failed to complete drug tests, or returned positive drug tests. He told her that evidence he would give at the next hearing of her matter would make sure that she would ‘walk out of there as easy as possible’.

On 16 July 2017, Martin told the applicant that she had been using drugs. The applicant did not report this conversation. Instead, he offered to organise a clean urine test for her. For that purpose he contacted Vivien Eden, the receptionist at the medical practice used by St Paul’s.

After his conversation with Martin on 16 July 2017 regarding the provision of ‘clean’ urine for testing, the applicant spoke with Eden and arranged for Eden to provide her urine to Martin in order for Martin to submit Eden’s urine in place of her own so as to generate a ‘clean test’ to present to court.

The applicant told Eden, ‘I need you to do something for me …, tomorrow morning, bring a little container with some of your liquid, I know it’s going to have opiates in it, but the client’s going to ask [a medical practitioner] for a script for Panadeine Forte to cover that, do you understand?’ Eden responded, ‘Yeah, yeah’. Eden told the applicant ‘You will need to get some containers Tony’. The applicant asked Eden if she had anything she could put it in for the next morning and Eden responded, ‘I’ll grab one from the surgery, but we are just going to have to replace the ones that we’ve got’.

Eden further stated that they needed the ‘blue top’ containers, as they are ‘the ones Marsh uses’. Eden stated that she would get some more containers from the chemist, stating, ‘I’ve got to make up for the other ones I used too’. Eden asked the applicant whether he wanted it in two separate containers and he responded ‘one jar, she can transfer, unless you’ve got two little jars ...’. The applicant advised Eden to provide urine enough for two tests.

During the evening of 16 July 2017, Martin met with the applicant, in the vicinity of Taylors Lakes. At that location, Abdul Elabed, an associate of Martin, provided the applicant with 1 gram of cocaine on behalf of Martin. The applicant spoke with Martin and confirmed that the cocaine that Elabed had given him was from Martin. The applicant also told Martin that his grandson’s birthday was on the 30^th of the month and he needed seven cases of cocaine at the same price for his grandson and his grandson’s friends, which he would purchase from Martin.

On 17 July 2017, Eden told the applicant that she had the urine ready, stating, ‘I’ve got the sample’. The applicant then had a conversation with Martin, in which he said that ‘Vivien has the goodies for you’ (a reference to Eden having the clean urine sample for Martin to collect). Later on 17 July 2017, Martin collected the urine from Eden, and then attended Melbourne Pathology where she submitted a urine test containing the urine supplied by Eden, and facilitated by the applicant.

On the same day (17 July 2017), the applicant told his grandson, Anthony Dieni Jnr, that his ‘friend’ was going to give him 7 for 14. ‘Friend’ was a reference to Martin; and ‘7’ was a reference to 7 grams of cocaine in exchange for ‘14’, being $1,400.

Again on the same day, the applicant and Martin had a further conversation, in which the applicant asked Martin when his grandson would need to have the money available to pay for the cocaine. Martin said that she would organise it in the next couple of days. The applicant confirmed that the price was $1400.

After Martin submitted the clean urine for testing, she had a conversation with the applicant, in which she confirmed that she had submitted the urine for testing without any issues, and that she had enough urine left for three more tests. The applicant told Martin to submit a further three clean urine tests that week and, when she ran out, to see Eden for more clean urine. The applicant told Martin not to take chances using her own urine, stating, ‘My intentions are for you to walk out’.

On 20 July 2017, the applicant asked Martin whether she was able to source ‘the goods for my flower bed that we talked about’. Martin stated that she had been flat out but would see the applicant the following morning. The applicant told Martin that they needed to finalise their strategy for court, and that he had decided that Martin no longer owed any fees. On the same date, the applicant again enquired as to whether Martin had sourced ‘the item for my grandson’. Martin stated she had not been able to, however she would get it before she saw him on 21 July 2017.

On 21 July 2017, the applicant asked Martin whether she had done a further urine test, and Martin confirmed that she had. They confirmed their meeting for later that day. Pursuant to that arrangement, the applicant and Martin met in Taylors Lakes. Martin supplied the applicant with the cocaine for him to supply to his grandson as arranged.

The applicant spoke to Elabed on 22 July 2017 stating that the ‘soil’ that Martin provided to him on 21 July 2017 was not as good as the last one he got. On the same day, the applicant had a conversation with Martin in which Martin advised him that her case was being heard in Court 5 by a particular magistrate. The applicant and Martin discussed how the case being before that magistrate was ‘beneficial’.

The applicant supported Martin in the course of her plea hearing at Broadmeadows Magistrates’ Court. He provided evidence regarding Martin’s participation in the rehabilitation program with St Paul’s. The applicant gave dishonest evidence that Martin had provided clean tests and had participated well in the program. The applicant was aware that Martin had submitted the urine of a third party for testing so as to conceal her drug use, and thus mislead the Court that she had remained drug free during the period of her bail. The evidence of the applicant also concealed Martin’s continuing use and supply of drugs of dependence and her failure to engage with drug and alcohol counselling.

The overall effect of the applicant’s conduct regarding Martin was to deny the sentencing court the full facts and circumstances of her case, which caused it to finalise Martin’s case on an incorrect factual basis. The series of acts the applicant engaged in had the tendency to pervert the course of justice.

Charge 3: attempting to pervert the course of justice (Raydan)

On 7 June 2017, Christopher Raydan, aged 30, appeared in the Melbourne Magistrates’ Court, where he was sentenced to a community correction order (‘CCO’) for a period of 20 months. The order included a condition that Raydan undergo treatment and rehabilitation for drug abuse or dependency as directed, and to return to the Melbourne Magistrates’ Court on 8 September 2017 for a judicial monitoring hearing.

On 17 August 2017, the applicant was contacted by Corrections regarding Raydan. The applicant confirmed that Raydan (who the applicant knew) could engage in the program with the applicant again. The applicant told Corrections that Raydan’s drug tests would come up positive for methylamphetamine due to medication he was taking. Following his telephone call with Corrections, the applicant told Raydan that they ‘need[ed] to get [their] story right for [the magistrate]’. The applicant and Raydan then had a conversation during which the applicant told Raydan that ‘[the magistrate] is a cunt of a magistrate ... He won’t know if you’re using fucking ice or dexamphetamine ... You leave that up to me’.

The applicant told Raydan to be careful with Corrections, as they would ‘breach him’. The applicant told Raydan what he had told Corrections, and told him to stick to that story if anyone asked him. The applicant then told Raydan, ‘I have a personal problem with my grandson. He once told me you can get hold of anything’. Raydan said he could do so and the applicant told him that he needed ‘one of each, one for a sheila and one for my grandson, if you want to take that off the fee, take that off the fee ...’. Raydan confirmed that he knew what the applicant was talking about and confirmed that he ‘should be able to sort something out’. The expression ‘one for the sheila’ was a reference to methylamphetamine, and the expression ‘one for my grandson’ was a reference to cocaine.

The applicant told Raydan ‘Now, don’t forget — you’ve seen me once a week, and I haven’t tested you because you’re going to come up positive anyway ... We’re just going to have to convince [the magistrate]’.

On 4 September 2017, Raydan contacted the applicant to tell him that he had the rest of his money (referring to the remaining fees owed by Raydan for his participation in the program with St Paul’s). The applicant and Raydan arranged to meet on 5 September 2017. The applicant asked Raydan ‘If you have some of the lollies you gave me, (that would) be good. My friend loves them’. Raydan confirmed that he could get some and the applicant told him, ‘I stand by you always’.

On 5 September 2017, the applicant received a message to telephone Corrections in relation to Christopher Raydan. The applicant first attempted to contact Raydan, leaving a message that he needed to speak to him (the applicant) before he spoke to Corrections again. The applicant then telephoned Corrections back and advised that Raydan had never missed an appointment and was always drug-free when he attended. The applicant said that he did not drug test Raydan as it would have come up positive due to the prescription medication he was then taking.

The applicant advised Raydan that he had spoken with Corrections, but he should not worry as he knew what to say. Raydan said that he would see the applicant in person with the money and the ‘lollies’.

On 7 September 2017, Raydan was unable to deliver the ‘lollies’ and money to the applicant himself and instead stated he would organise an Uber and place them inside a phone. The applicant said he would be at the Taylors Lakes Hotel at 2:00 pm, and Raydan said he would organise for the Uber to attend there. The applicant told Raydan to seal the envelope and delete all his messages. He told Raydan, ‘If you [are] just sending me those lollies by Uber — don’t in case they fall into the wrong hands’. The applicant and Raydan then made an agreement to meet outside court on 8 September 2017, and that Raydan would put the ‘lollies’ into an envelope and give it to the applicant.

On 8 September 2017, the applicant told Raydan to meet him outside the Court at about 9:30 am. Raydan advised the applicant, ‘I’ll bring your friends favourite hard boiled-lollies’. Later that day, Raydan attended Melbourne Magistrates’ Court in relation to a breach of his CCO. Raydan met the applicant at court and provided him with an envelope. Raydan and the applicant collaborated to provide Corrections with false information regarding Raydan’s participation in rehabilitation in order to conceal the fact that Raydan had not participated in rehabilitation with the applicant, and was dealing in illicit drugs. After receiving a report from Corrections, the Court found the breach proven, but no further orders were made. The applicant’s actions in misleading Corrections, and thus the Court, had a tendency to pervert the course of justice.

Charge 4: trafficking in a drug of dependence (cocaine and methylamphetamine)

Between 20 June 2017 and 12 September 2017, the applicant trafficked cocaine on more than ten occasions to his grandson Anthony. The total amount trafficked was not less than 13.5 grams. Between 20 June 2017 and 12 September 2017, the applicant trafficked methylamphetamine on three occasions to two other people. The amount trafficked totalled not less than 2 grams.

Charge 5: trafficking in a drug of dependence (diazepam, oxycodone, alprazolam)

Between 20 June 2017 and 12 September 2017, the applicant trafficked diazepam on five occasions to a number of people, including Eden, in a total amount of not less than 350 milligrams. Between the same dates, the applicant trafficked oxycodone on at least four occasions to Eden and another person in a total amount of not less than 3,460 milligrams. During the same period, the applicant trafficked alprazolam on at least six occasions to his grandson and others.

Charge 6: attempting to pervert the course of justice (Violatzi)

John Violatzi (‘John’ or ‘Violatzi’), born 2 May 1987, was remanded in custody prior to 26 June 2017. The applicant was engaged to support John’s application for bail to be made in the Supreme Court on 26 June 2017.

On the morning of 26 June 2017 the applicant had a conversation with John’s father, Lambrose (‘Lambrose’). The applicant advised him that he was quite confident of getting bail for John that day. The applicant and Lambrose discussed a mutual associate, Steven Sioulas, who was also remanded in custody at the time. The applicant told Lambrose that Sioulas used to supply drugs to him. The applicant asked Lambrose whether he was able to supply the applicant with drugs until he could source them from Sioulas again. Lambrose said, ‘I’ll see what I can do’. The applicant stated that he would not charge him the $500 for the court appearance to support his son’s bail application, stating, ‘I’m the type of fella, you help me out, I help you out’.

The applicant attended the Supreme Court at Melbourne that day and gave evidence in support of John’s application for bail. While on oath, the applicant was asked what John’s involvement in the program with St Paul’s would be, should he be bailed. The applicant responded that John would receive two counselling sessions a week, and that he would be drug tested at random by Melbourne Pathology. When asked under oath whether he would be prepared to give an undertaking to the Court that he would notify the informant if John returned a positive drug screen or failed to attend appointments without reasonable excuse, the applicant said, ‘Absolutely, your Honour’.

When the applicant was asked to provide a further undertaking that, should John not comply with any of the applicant’s lawful directions or bail conditions, the applicant would report that breach or failure to the informant or another member of Victoria Police, the applicant again responded, ‘Absolutely, your Honour’.

Violatzi was granted bail, with conditions including that he undertake any assessment, treatment and counselling that was recommended by the applicant; that he would undergo random supervised drug screening; and that he would abide by all of the applicant’s lawful directions; and not associate with his girlfriend, and co-accused, Chloe Scott.

Following the court appearance, Lambrose handed the applicant approximately $600 in cash. That afternoon, the applicant and Lambrose arranged to meet the following day to discuss the arrangement whereby Lambrose would supply the applicant with the drugs. The applicant also told Lambrose that, contrary to the evidence he had just given to the Supreme Court, he was not going to require his son to attend counselling twice a week but instead, ‘once a week will be fine’.

On 28 June 2017 the applicant advised John in relation to the condition of his bail not to contact Scott, saying:

As far as I’m concerned so long as you keep your appointments on Monday and you give a clean test, who you associate with is your business, and I don’t interfere with that, even though I know you shouldn’t be associating with her, if you were to meet up with her I would not be against that … As a matter of fact if I could organise to meet at a restaurant and have dinner and a chat in my presence, I’ll even do that to help you out.

The applicant told John not to associate with Scott on his own or to live with her, as ‘the coppers know you and the coppers know her, and it’s on computer that you’re not to associate with your co-accused’.

The applicant told John that if he went to court with a good report from the applicant, his ‘chances of getting a CCO are very good’. The applicant then discussed with John the importance of deleting text messages after sending them or using another person’s phone or SIM card in order to avoid detection. The applicant told John that he bought old Nokia phones and swapped the SIM cards. Additionally, the applicant said:

You never ever talk on the phone ... If I had to hazard a guess that my phone is monitored from time to time, I’d say I’d be right ... but I never say anything that can incriminate myself or anyone else, and if I ask for something, and sometimes, a couple of friends, I do ask for something, I always use different language and they know what I’m talking about. Nothing that can be pinned against me as a criminal matter.

The applicant also told John never to talk on the phone and that, if he wanted to facilitate contact with Scott, to do it through his aunt, or wait for a few weeks.

On 3 July 2017, the applicant spoke to John and asked if he had done a drug test that day. John said he had not, but would speak to the applicant about that when he next saw him. On the same day, the applicant was advised by Lambrose that, in breach of his bail conditions (which included not using any drugs of dependence), John had smoked methylamphetamine over the weekend. The applicant responded, ‘Well he’s not going to be able to do a test then’. The applicant said that he would sort it out somehow and then said, ‘I can keep a blind eye today, as long as he’s able to give me a test this week sometime’. The applicant assisted John to avoid drug testing on 3 July 2017 in order for John’s use of drugs of dependence to remain undetected.

On the same day, the applicant was advised by John’s mother that he was given a pipe by Lambrose and that he had been speaking to his girlfriend, again in breach of John’s bail conditions.

On 7 July 2017, John submitted a urine sample to Melbourne Pathology in which drugs of dependence were not detected. That was the only test submitted in the name of John Violatzi between the date he was bailed, 26 June 2017 and September 2017.

On 9 July 2017, the applicant was advised by Lambrose that John had used drugs of dependence. The applicant replied that he would not ‘breach’ John if he had not provided a positive test. On the same day the applicant spoke with John and asked him if he had used drugs on 8 or 9 July 2017. John replied, ‘Yes I did Anthony’.

On 22 July 2017, the applicant spoke with John, saying that he had not received any drug tests from him, or seen or heard from him. The applicant said to John ‘I don’t want to breach you because I think you’re a nice bloke’.

Between 26 June 2017 and 22 July 2017, Violatzi failed to participate in rehabilitation with the applicant as required by the Court. The applicant allowed Violatzi to breach conditions of his bail, and worked with him to conceal his breaches by ensuring he did not submit drug tests if the results would be positive for drugs of dependence. The applicant also offered to facilitate a breach of Violatzi’s bail conditions by offering to organise contact between him and Scott.

The applicant was aware of several breaches of Violatzi’s bail conditions, including his failure to complete drug tests or attend appointments with the applicant, as well as Violatzi’s use of drugs of dependence. The applicant failed to report any of the breaches to the informant, thus concealing the commission of an offence and failing to honour his sworn undertaking to the Supreme Court. The applicant’s conduct had the tendency to pervert the course of justice.

Charge 7: attempt to pervert the course of justice (Elabed)

On 30 May 2017 Abdul Elabed, aged 31, was granted bail by the Melbourne Magistrates’ Court to reappear in court on 28 July 2017 with conditions which included:

(a)Report to Craigieburn Police Station Tuesdays and Thursdays between 6:00 am and 9:00 pm.
(b)To reside at [a specified address].
(c)Not to leave the place of residence between the hours of 9:00 pm and 6:00 am except in the company of his father.
(d)To present at the front door of the residence during curfew hours upon the request of any member of Victoria Police.
(e)Not to use drugs of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under the Act.

Some time before 21 June 2017, the applicant confirmed that Elabed had submitted tests for that week. The applicant advised Elabed that he was not going to test him for a week, and that he could use drugs of dependence if he wanted to.

On 22 July 2017 at about 5:40 am, Elabed was in a vehicle that was pulled over by police. Elabed was in breach of his curfew at the time of the incident. Police issued a penalty notice as a result of the incident. That day, the applicant and Elabed discussed the risk of Elabed being in breach of his bail due to not adhering to his curfew. They agreed that Martin would contact the wife of Elabed’s boss in order to obtain a letter stating that Elabed had to work early on that date, therefore justifying why Elabed was in breach of his curfew. The applicant stated that with the letter from Elabed’s boss, he would be able to ensure Elabed received bail without even Elabed’s lawyer being present.

On 28 July 2017, the applicant appeared in the Melbourne County Court with Elabed. Elabed advised the Court that he was unable to obtain funds for his solicitor and that he was working, and therefore not eligible for legal aid. The matter was adjourned for six weeks to 11 October 2017, to allow Elabed to obtain legal representation. Elabed’s same bail conditions were continued. The next day, the applicant spoke to Elabed about the appearance the previous day (28 July), stating, ‘Look at the fucking shifty I pulled yesterday with you, if I hadn’t pulled that shifty with you yesterday ... 99% certainty that cunt would have locked you up’.

At about 6:10 pm on 30 July 2017, the applicant met with an unknown third party at the Taylors Lakes Hotel where he organised for that person to provide clean urine in order to supply to Elabed. The applicant obtained the urine sample from the male and then placed it in his vehicle. After the applicant obtained the clean urine, at 6:17 pm, he advised Elabed ‘I have your drink mate’. Following the meeting, the applicant phoned Martin, stating in reference to Elabed ‘I have something for him, because he’s got to do a test tomorrow, … I got a good friend of mine to make sure he comes up clean’.

Martin confirmed that she would bring Elabed to St Paul’s the following morning in order for Elabed to collect the clean urine. The applicant instructed Martin that Elabed must do two tests a week between 30 July 2017 and his court appearance on 11 October 2017, further stating, ‘I can’t promise that we will win the appeal, but if he does what I tell him, chances are greatly increased’. The applicant told Martin that they would discuss Martin’s situation further when they met in the morning, ‘because I don’t like to say things over the phone’.

On 31 July 2017, the applicant met with Elabed at St Paul’s where the applicant provided him with the clean urine. On 11 August 2017, Elabed submitted the clean urine obtained from the third party for testing. No drugs of dependence were detected in the urine. The applicant’s conduct in facilitating Elabed’s submission of clean urine from a third party had a tendency to pervert the course of justice.

Charge 8: attempt to pervert the course of justice (Georgiou)

Nicholas Georgiou was born on 13 July 1987. While engaged in a court-ordered bail condition to participate in drug rehabilitation with the applicant, Georgiou failed to attend appointments with the applicant. Georgiou also trafficked in drugs of dependence with the applicant, by agreeing to supply the applicant with cocaine and methylamphetamine in exchange for money.

The applicant and Georgiou, by their conduct, denied the sentencing court the full facts and circumstances of Georgiou’s case, and caused the Court to proceed to finalise Georgiou’s case on a factually incorrect basis, which had the tendency to pervert the course of justice.

On 31 December 2016, Georgiou appeared in the Melbourne Magistrates’ Court where he was granted bail on conditions which included a requirement that Georgiou comply with all lawful directions of the applicant.

Bail was initially opposed by the prosecution due to concerns regarding Georgiou’s drug use. The applicant gave evidence in the bail application that he had assessed Georgiou and would ‘be able to look after’ him should he be granted bail. The applicant said he would provide one-on-one counselling with Georgiou twice a week. The applicant told the Court:

I work too hard for my name and reputation, and I will not allow anything to interfere with that. If any drug tests come back positive, or he fails to attend any appointments, I won’t hesitate to contact the informant.

The applicant gave an undertaking that should Georgiou not comply with any lawful direction given by him, he would contact the informant. The applicant said that, if Georgiou returned a positive drug test, the applicant would contact the informant. The magistrate advised Georgiou that if he breached any conditions imposed, he would be remanded in custody.

On 30 June 2017, Georgiou failed to attend an appointment with the applicant. The applicant told Georgiou to go and do a (drug screening) test, but only ‘if it’s clean’ and then come and see him Monday morning. Georgiou failed to attend his appointment with the applicant on the Monday. The applicant and Georgiou agreed to meet the following day, however Georgiou again failed to attend. The applicant told him ‘As long as I get clean tests from you, you are safe’.

On 5 July 2017, the applicant told Georgiou he had been covering for him and looking after him, both in relation to Georgiou missing appointments and also the applicant advising him when to schedule drug testing appointments so as to ensure that they returned negative results for the presence of drugs. The applicant then told Georgiou that in return he needed a favour and in coded terms requested that Georgiou provide a ‘ball’ or 3.5 grams each of methylamphetamine and cocaine.

Georgiou stated that $2,000 would cover everything. He confirmed that if the applicant can get ‘paper’ (money) then he could help him with it. The applicant confirmed that he would organise the ‘paper’. Georgiou confirmed that he could help the applicant with ‘a ball’ for $850 for the one that Georgiou used (methylamphetamine), and that he could source the ‘Pepsi cola’ (cocaine) from a third party. The applicant told Georgiou not to say too much over the phone.

On 7 July 2017, the applicant told Georgiou that he is ‘keeping a blind eye’ regarding Georgiou’s conduct on bail. The applicant asked Georgiou when he last used, and Georgiou confirmed that it was ‘just after court’. The applicant told Georgiou that he would back him up 100 per cent and that the ‘magi [magistrate] will believe whatever I tell him but I will need some clean tests’.

The applicant told Georgiou to collect forms from him to do more tests. He told Georgiou that in relation to the two items he discussed with him on the phone, he needed one of each urgently. Georgiou advised the applicant that it would be ‘800 to play basketball for the cold’ and for the other one, ‘Pepsi-cola, it [would] be around 1200 for a basketball’. The applicant confirmed that he wanted it that night. The expression ‘8 to play basketball ... for the cold’ referred to $800 in exchange for the supply of 3.5 grams of methylamphetamine, and the expression ‘Pepsi-cola, around 1200 for a basketball’ referred to $1,200 in exchange for the supply of 3.5 grams of cocaine.

On 4 August 2017, Georgiou missed his appointment with the applicant. The applicant spoke with Georgiou, stating that he was doing well and all of his tests were clean. The applicant said ‘You are going to walk out of there with a community based order, no problems mate’. The applicant told Georgiou ‘You know what I’ve told [the magistrate], he’ll believe whatever I fucking tell him mate’.

Georgiou submitted nine tests to Melbourne Pathology between 4 January 2017 and 13 April 2017, and a further eight tests between 12 May 2017 and 1 August 2017. All tests submitted returned negative results for the presence of methylamphetamine.

On 11 August 2017, the applicant told Georgiou that the magistrate would believe ‘whatever I fucking say’ in reference to Georgiou’s next court appearance. On 18 August 2017 the applicant told Georgiou that he would look after him on his corrections report, saying ‘I’m certainly not going to breach you’. Corrections did not receive any correspondence from the applicant regarding Georgiou.

Between 31 December 2016 and 21 August 2017, the applicant did not report any breaches of bail to the informant, notwithstanding Georgiou’s failure to attend appointments and ongoing drug trafficking and use of drugs of dependence.

On 21 August 2017, Georgiou appeared in Sunshine Magistrates’ Court, accompanied by the applicant. Submissions were made on behalf of Georgiou that he be sentenced to a CCO. The submissions included that Georgiou had remained drug-free since the start of 2017, as evidenced by the ‘clean’ results of drug testing which had been arranged by the applicant.

Georgiou was sentenced to a CCO. The overall effect of the applicant’s conduct was to deny the sentencing court the full facts and circumstances of Georgiou’s case, which thus caused it to finalise Georgiou’s case on a factually incorrect basis, and which had the tendency to pervert the course of justice.

Charge 9: false accounting

St Paul’s was founded in 1984 as a charity. Its founder met the applicant when the applicant sought guidance from him for his alcohol dependency. The applicant said that he wished to help others with addiction and the charity was established. Its objective was to help people become drug free while residing in their home environments and for the applicant to attend schools and educate students about the risk of drugs.

The applicant was the sole ‘counsellor’ for the charity and operated like a case worker. The charity was initially funded by its founder but, as it grew, it sought and received donations, grants and the benefit of fundraisers.

St Paul’s was formally registered as an incorporated association in July 1987. CAV manages the registration of such associations. Requirements include the lodgement of annual statements on behalf of the association. In approximately 1997, the applicant took over all of the administrative functions of St Paul’s.

It was the understanding of others who were concerned about, or involved in, St Paul’s that the accused was paid as an employee of St Paul’s. The applicant listed mortgage payments on financial reports, together with vehicle leasing expenses and phone expenses which were accepted by them as covering the applicant’s living expenses.

Donors to St Paul’s were led to believe that St Paul’s had small salary costs and incidentals. They were not aware of the extent that money was directly taken by the applicant. Their donations were for the primary purpose of advancing the charity.

The applicant was the only person with the power to distribute funds for wages, car leases, phones, stationery and the like. It was assumed that the amounts declared by the applicant to have been deposited into the St Paul’s bank account, less the applicant’s entitlement, were used for the benefit of the charity.

Over the seven-year period between 2011 and 2017, the charity sourced a total of $1,087,895.79 primarily through donations and direct transfers/cash/cheque deposits. Of that total amount, $1,084,463.24 was withdrawn from the account, with $349,158.26 deposited into accounts belonging to the applicant and his wife; $76,950 withdrawn in cheques made out to cash; $10,402.50 paid to Civic Compliance for infringements; and $11,645 paid to travel company Helloworld for travel undertaken by the applicant’s wife.

In the CAV annual financial statements covering the period 2011-2017, the applicant declared his total entitlements to be $370,460. The documents submitted to CAV by the applicant were false, and the declarations he made were made with a view to gain for himself. The benefit he derived was the undocumented receipt and use of $448,805.76.

Charges 10 and 11: possession of firearms

On 12 September 2017, a search warrant was executed at the home of the applicant and his wife. During the course of the search, the applicant told investigators that there was a shotgun under his bed. A loaded FABARM model EURALFA 23 gauge break open shotgun was then found (charge 10, possessing a general category longarm).

The applicant told investigators that the shotgun belonged to a former client who was remanded in custody. The former client’s mother had asked the applicant to take the shotgun from her premises. The applicant did not provide the name of the former client. It was subsequently established that the shotgun had been reported to police as stolen on 12 September 2016.

In the bottom drawer in the bedroom inside a space bag box, investigators located a loaded Browning Fabrique Nationale .22 calibre semiautomatic handgun that was not registered (charge 11, possessing a general category handgun).

Inside the top drawer in the office, investigators located a deal bag with blue symbols on it containing a white crystal substance and a small zip-lock bag containing a small quantity of white crystal substance. Those drugs were part of the facts founding charge 4, trafficking in a drug of dependence (methylamphetamine).

Sentencing reasons

After summarising the circumstances of the applicant’s offending,[3] the judge turned to the objective gravity of the offending and relevant sentencing principles. The judge observed that the offence of attempting to pervert the course of justice is a serious offence, reflected in the statutory maximum of 25 years’ imprisonment.[4] In explaining why the offence is a serious one, the judge said that it was an offence which struck at the heart of the justice system — having the capacity to undermine and manipulate that system, causing unjust outcomes.[5]
[3]Reasons [1]–[113].
[4]Ibid [114].
[5]Ibid [115].

The judge said that the behaviour the applicant engaged in misled three different courts; it misled police who were involved in charging various individuals, later given bail; it misled Corrections, who have the responsibility for monitoring the performance of offenders on CCOs; and it misled prosecuting authorities and those representing the individuals concerned.[6] The judge then said:

Of necessity and in the facilitation of the criminal justice system, each one of those organisations must be able to rely on people in positions of authority and responsibility who are giving evidence or providing information. That is particularly so when a person holds himself out as assisting offenders and thereby assisting the courts to make an assessment of an offender’s efforts towards rehabilitation.[7]

[6]Ibid [116].

[7]Ibid [117].

Another reason the judge gave for saying that the offence of attempting to pervert the course of justice was a serious offence was that it is an offence which is often difficult to detect. Here, as her Honour observed, it was uncovered by the use of telephone intercepts and covert surveillance.[8]
[8]Ibid [118].

The judge considered that the objective gravity of the applicant’s offending over the six attempting to pervert the course of justice charges placed that offending ‘at the upper range of seriousness’.[9] Her Honour observed that each of the six charges was serious in its own right, ‘representing a range of deceptive conduct and behaviours committed over a period of weeks or months’.[10] The judge said that, taken together, ‘the offending as a whole [was] extremely serious’.[11] Her Honour said that she made that assessment, taking into account the following matters:
[9]Ibid [119].
[10]Ibid [120].
[11]Ibid.

First, you gave evidence on oath on multiple occasions. You gave evidence on oath in bail applications to the Supreme Court in the matter of Violatzi, and to the Magistrates Courts in the matters of Grae, Martin and Georgiou. Each time you gave evidence outlining a program of rehabilitation which you clearly did not intend to impose. Each time you gave undertakings on oath to inform police informants of any breaches of bail.
The Judge and Magistrates relied on your evidence. It formed a critical plank in those applications, as reflected in the conditions ultimately imposed. The breach of those undertakings is extremely serious.
On the very day you gave evidence in the Supreme Court you were organising Violatzi’s father to provide you with illicit drugs.
You also gave false evidence on the plea of Patricia Martin at Broadmeadows Magistrates Court, and attended with Raydan at his hearing at Melbourne Magistrates Court and Georgiou at his plea at Sunshine Magistrates Court where submissions were made about their compliance with your program based on your false reports. You supported Elabed in seeking an adjournment in this Court.
Second, you did not simply fail in your undertaking, you deliberately set about advising and encouraging your co-offenders as to how they might go about avoiding their obligations and avoiding any breaches.
You did that in a variety of ways, namely, by telling them when you would and would not require them to undertake urine testing; by actively organising the provision of urine from third parties which they could then substitute for their own to avoid detection of drug use; you actively encouraged Violatzi to breach his bail by having contact with his girlfriend and co-accused, which you offered to facilitate; you advised Elabed how to dishonestly deal with his breach of curfew; you encouraged Raydan in the telling of a false story to Corrections Victoria to account for positive drug screens; you organised provision of medical authorisation which you knew would include allowing for unsupervised urine screening; you organised provision of medical prescriptions which would falsely explain positive urine testing; you did not counsel the offenders; and you then requested in each and every case that your client supply you with illicit drugs.
The breach of trust here is breathtaking. It is a breach of trust to the relevant Court, to the prosecuting authorities and to those meant to be under your care and guidance.
Third, and most compelling in my assessment of the objective gravity of your offending, you were a person embedded in the legal system. Persons who work as counsellors working to rehabilitate people who have committed criminal offences, are adjunct to the criminal justice system. They are allies in the pursuit of combatting crime by way of reclaiming those who are addicted to drugs. Instead of working with the system, you were a mole, undercutting it from within. It was a monumental betrayal of your role.
Fourth, you created an atmosphere whereby your co-offenders were beholden to you. The content of the telephone calls shows that your requests for the co-offenders to provide you with drugs were made in conversations which were intertwined with conversations about their legal matters. Your comments ‘You help me out I help you out’ is a clear example of the dynamic.
In your relationship with each of your co-offender[s] you held the power. You held the power to breach them, to report those breaches to police or to Corrections Victoria. You held a power which they would understand could result in their return to custody.
Fifth, your offending was deliberate and calculated. It was done in full knowledge of the way in which Magistrates and Judges rely on evidence given to them. In particular in the busyness of the Magistrates’ court, where there is more limited capacity to fact check each and every piece of evidence given, it was done with brazen disregard for the truth.
Sixth, your offending was sustained and repetitive. The Prosecution summary is broken up into sections referable to co-offenders. However, a consideration of the chronological order of these events shows that these conversations, interspersed with appearances at Courts, and with episodes of drug trafficking, were happening day in day out during the period covered by the indictment. Your Counsel sensibly conceded that your behaviour did not start on the day of the first telephone intercept. I could not and do not draw any conclusion as to how long you had been operating in this manner, however by the time of the charged period this behaviour was your modus operandi. It was your modus operandi day in day out over a period of

10 months.
Seventh, by your behaviour and encouragement of those persons under your supposed guidance, you also embroiled them in charges of attempting to pervert the course of justice.
Eight, you failed each and every one of those co-offenders listed on the indictment. You had the capacity to assist them reclaim their lives as you had once done, but your actions in fact had a tendency to encourage them back into criminal activity.[12]

[12]Ibid [122]–[135].

The judge then turned to the two trafficking offences. In relation to those offences, the judge:

·observed that trafficking drugs of dependence, in particular methylamphetamine and cocaine, is serious offending with a maximum penalty of 15 years, and that those drugs are a ‘scourge on our community’;[13] and that people who facilitate the movement of such drugs must be ‘sternly dealt with’;[14]
·accepted a submission that the amounts trafficked were at the lower end, but did not accept that the applicant’s trafficking was at a low end;[15]
·observed that the fact that the applicant was acting in the role of a drug counsellor, supposedly facilitating the recovery of his co-offenders from drug addiction, made his trafficking an objectively serious example of that offending;[16]
·noted that the applicant’s trafficking was to a number of different people; was protracted; was repetitive; and involved the use of ‘surreptitious pressure [which the applicant] placed on persons beholden to [him]’ — all of which increased the applicant’s moral culpability;[17]
·observed that receiving drugs from persons who the applicant was meant to be rehabilitating, and then (in some cases) passing those drugs on to others, was ‘serious’;[18] and
·said that the moral culpability in the applicant trafficking to his 25 year old grandson was ‘extremely high’.[19]

[13]Ibid [138].

[14]Ibid.

[15]Ibid [139].

[16]Ibid.

[17]Ibid [140].

[18]Ibid.

[19]Ibid [141].

In relation to the false accounting charge, the judge observed that the amount of moneys for which the applicant did not properly account was high, being over $440,000, and that the maximum penalty for that offence is 10 years.[20]
[20]Ibid [142].

In relation to the firearms charges, the judge said that the possession of these weapons showed how enmeshed the applicant was with the criminal milieu. Her Honour noted that there was no evidence to support the applicant’s claim that a client’s mother had given him one of the firearms. She then said that the fact that the applicant kept the weapons that were found, both loaded and easily accessible, was ‘most concerning’.[21]
[21]Ibid [143].

Turning to sentencing principles, the judge said that the principles of general deterrence, denunciation and just punishment were paramount in the sentencing of the applicant. She said that this was particularly so for the charges of attempting to pervert the course of justice.[22]
[22]Ibid [144].

Next, the judge dealt in some detail with the applicant’s personal history, noting that the applicant was born in October 1947 and was 72 years old at the time of sentencing.[23] The judge described the applicant’s childhood, his limited formal education and his early adult life.[24] The judge then noted that, in his late adolescence and early twenties, the applicant began to consume increasing amounts of alcohol — ultimately leading to periods of hospitalisation in relation to liver issues related to alcohol consumption.[25] The judge described the applicant’s wife’s attempts to obtain help for the applicant, the applicant’s engagement in short-term rehabilitation programs without success, attempts at detoxification, and an admission of the applicant to the Ararat Mental Hospital in 1979.[26]
[23]Ibid [148].
[24]Ibid [149]–[153].
[25]Ibid [154]–[157].
[26]Ibid [157]–[161].

The judge noted that the applicant had a criminal record for some minor offending a number of decades ago, ‘but nothing relevant for [the judge’s] purposes’.[27]
[27]Ibid [160].

The judge referred to the circumstances of St Paul’s coming into existence, and the applicant’s involvement in its creation,[28] before referring to various reports, character references and documents tendered on the plea.[29] The judge noted that, in 1997, the applicant was awarded the medal of the Order of Australia for ‘service to the community through [St Paul’s] for people with addiction to drugs and alcohol’,[30] before observing, ‘[h]ow [the applicant had] progressed from those heights to [his] current nadir [was] difficult to fathom’.[31]
[28]Ibid [162]–[164].
[29]Ibid [165]–[169].
[30]Ibid [172].
[31]Ibid [173].

Next, the judge summarised the detailed psychological and neuropsychological evidence called and tendered on the plea.[32] The judge accepted that this evidence showed that the applicant had been diagnosed with a Narcissistic Personality Disorder, a Major Depressive Disorder and a Mild Neurocognitive Disorder[33] — the likely cause of the neurocognitive disorder being a ‘neurodegenerative disorder likely of a dementia type’.[34] It was the latter two conditions which founded submissions to the judge that principles 3, 4, 5 and 6 identified in R v Verdins[35] were engaged.
[32]Ibid [174]–[190].
[33]Ibid [191].
[34]Ibid [187].
[35](2007) 16 VR 269 (‘Verdins’).

The judge accepted that the Mild Neurocognitive Disorder enlivened principles 5 and 6 of Verdins, saying that she would take into account that any time in custody was likely to be more onerous for the applicant as a result of that cognitive impairment, and that it was likely that there would be a further decline in the applicant’s condition.[36] Her Honour also said that she would take into account the applicant’s Major Depressive Disorder ‘as part of those conclusions, namely that it too [was] likely to lead to a decline of [the applicant’s] mental state when incarcerated’.[37]
[36]Reasons [194]–[199].
[37]Ibid [200].

As to Verdins principles 3 and 4, the judge recorded the applicant’s submission that the expert evidence enlivened these principles so as to moderate the applicability of general and specific deterrence.[38] Under the headings ‘General Deterrence’ and ‘Specific Deterrence and Prospects of Rehabilitation’, the judge then said:

I reiterate the importance of general deterrence when sentencing for offending of this type. In light of your age, Mild Neurocognitive Disorder and the matters I have referred to surrounding your decline both recent and expected, I will give some moderation in sentencing you, however general deterrence still remains an important sentencing consideration. That is so especially in relation to the charges of attempting to pervert the course of justice, though it is also relevant to each of the other offences here.
In taking into account the need for specific deterrence in sentencing you, that is bound up with your prospects of rehabilitation. In my view your prospects of rehabilitation are poor. The psychological evidence bears out your lack of insight into the seriousness of your offending, coupled with your justifications, your lack of remorse, and your rigidity of thinking. Those factors suggest an inability to change.
However, I accept on a practical level you are already 72, you will be elderly on release from custody, you will be unlikely to work and certainly not in your previous field. For those reasons your opportunity to reoffend will be limited and in that sense I accept there is almost no role here for specific deterrence.[39]

[38]Ibid [201].

[39]Ibid [202]–[204].

The judge then referred to pre-sentence detention; the existence of the pandemic, and the fact that custody is more onerous as a result; the applicant’s physical health; the applicant’s age; the physical health of the applicant’s wife; and the prospect that a pecuniary penalty order might be made after sentencing.[40] In relation to the applicant’s age, the judge said that she was ‘acutely aware of the fact that given [the applicant’s] age and health [he] may die in custody’.[41]
[40]Ibid [205]–[218].
[41]Ibid [215].

The judge referred to the applicant’s plea of guilty, saying that she had taken this into account.[42] Her Honour noted that the value of the applicant’s plea was increased in circumstances where the COVID-19 pandemic had caused the considerable delay of all trials.[43] After setting out part of the procedural chronology, the judge noted that the applicant’s plea was not an early plea and that it was not argued that it was a reflection of remorse.[44] The judge, however, noted that the plea was of ‘significant benefit’ as it had avoided a ‘lengthy series of trials’.[45] Her Honour said there was ‘great utilitarian benefit’ in the applicant’s plea, as it had saved the community the cost and time of those trials, and had also saved witnesses from being cross-examined.[46]
[42]Ibid [219].
[43]Ibid [220].
[44]Ibid [223].
[45]Ibid.
[46]Ibid.

The judge referred to issues of parity with sentences imposed upon the applicant’s co-offenders, ultimately concluding that parity was ‘not strictly applicable’, having regard to the differences between the positions of the applicant and his co-offenders.[47]
[47]Ibid [224]–[229].

Under the heading ‘Current Sentencing Practice’, the judge identified a number of cases to which she had had regard in relation to the charges of attempting to pervert the course of justice.[48] Her Honour noted that the offence of attempting to pervert the course of justice covers a wide range of factual scenarios and seriousness. As such, she said, past sentences were of limited assistance. Her Honour concluded that there were ‘no truly comparable cases, still less a clear pattern of sentences for such serious examples of [the] offending’[49] committed by the applicant.
[48]Tognolini v The Queen (2011) 32 VR 104 (‘Tognolini’), and the table of cases referred to therein; Pantazis v The Queen [2013] VSCA 59; DPP v Oksuz (2015) 47 VR 731 (‘Oksuz’); DPP v Middleton [2018] VSCA 23; Carter v The Queen [2020] VSCA 156 (‘Carter’); and a table contained in Judicial College of Victoria, Victorian Sentencing Manual, Chapter 8.1.
[49]Reasons [230].

Finally, under the heading ‘Cumulation and Totality’, the judge said:

I accept that I must have regard to the principle of parsimony as it applies to the length of sentence, and to the principle of totality. You are to be sentenced for a range of several discrete offences. There will be a degree of cumulation of sentences to reflect the separate actions which found those individual offences.
In assessing the extent of cumulation appropriate for each charge of attempting to pervert the course of justice I have taken into account that although separate transactions with different co-offenders, they are overlapping both in nature and temporally. The opportunity for offending at its base level arose out of the same circumstances. The extent of cumulation will therefore be moderated to a degree.
There will be cumulation of a significant portion of the sentence I impose on the false accounting charge. That is a charge reflecting entirely separate criminality which occurred over a 5 year period.
In making the orders for cumulation I have been mindful of the principle of totality. I am particularly aware that for an older offender in ill health, the sentence will represent a significant portion of the rest of your life. I am acutely aware of the fact that given your age and health you may die in

custody. I have adjusted the non-parole period downward to reflect those factors including your neurocognitive disorder and probable decline.
The sentence I impose must reflect your serious criminality, however I have endeavoured in making orders for cumulation not to make it crushing.[50]
[50]Ibid [231]–[235].

Parties’ contentions

In light of the concession made by the respondent that the total effective sentence and non-parole period are manifestly excessive, the applicant’s submissions focused on the contention that, in addition to that sentence and order being manifestly excessive, the sentences imposed on each of the charges of attempting to pervert the course of justice and the charge of false accounting were also manifestly excessive.

In relation to the attempting to pervert the course of justice charges, the applicant submitted that the judge erred in sentencing him on the basis that, when the applicant gave evidence to the various courts that he would supervise the relevant offender, and report breaches of bail conditions to the relevant informant, the applicant committed perjury because he had no intention of doing what he said he would do.[51]
[51]Ibid [1], [119], [122].

The applicant submitted that the judge also erred when she concluded that ‘most compelling in [her] assessment of the objective gravity of [the applicant’s] offending’, was that the applicant was ‘a person embedded in the legal system’; and that the applicant was an ‘adjunct to the criminal justice system’.[52] The applicant submitted that, in fact, he had no standing role in the justice system; and he had not, as magistrates, judges, police and lawyers do, sworn an oath to serve the administration of justice.
[52]Ibid [129].

Additionally, the applicant noted that he was not an officer of the Court; nor an expert witness whose qualifications to give opinion evidence depended on the acceptance of a duty to the Court; nor an employee of the justice system; and also that neither he nor St Paul’s was paid by the State. The applicant submitted that his obligations to the Court arose solely on an ad hoc basis as a result of taking an oath to give true evidence, or giving an undertaking to the Court, and that his offences of attempting to pervert the course of justice were less serious than equivalent offences committed by a judicial officer, lawyer or police officer — the seriousness of their offending inhering in the ‘special position they occupy in connexion with the administration of justice: a position maintained by formal qualifications and oaths for admission, adherence to professional codes of conduct, ethical norms and continuing education’.

Having made these submissions, the applicant then relied upon various authorities in an attempt to show that each of the individual sentences on the attempting to pervert the course of justice charges were manifestly excessive. Those authorities included R v Baba,[53] R v Aydin,[54] R v Buscema,[55] Einfeld v The Queen,[56] Tognolini, Pantazis v The Queen,[57] Smith v The Queen,[58] Oksuz, Middleton v The Queen,[59] and Carter.
[53][1977] 2 NSWLR 502.
[54][2005] VSCA 87.
[55][2011] VSC 206 (esp at [6]).
[56](2010) 200 A Crim R 1.
[57](2012) 38 VR 446.
[58][2014] VSCA 241.
[59][2018] VSCA 23.

In relation to the false accounting charge, the applicant submitted that the basis of this charge was that he had the ability to use the amount of $448,000 ‘without it having been declared’. The prosecution accepted on the plea that ‘it could not establish whether the applicant was or was not entitled to the undocumented amounts’. Moreover, the prosecution had specifically eschewed any claim that the applicant had stolen the money. The applicant submitted that it followed from the way that the false accounting charge was put that regard should be had to the entire amount of the pecuniary penalty order as constituting additional punishment of him. He contended that no part of the amount could be regarded for the purposes of sentencing as ‘profits’ from the commission of the offence.[60]
[60]See Sentencing Act 1991 s 5(2A)(c) and (d).

In support of his submission that the sentence on the false accounting charge was manifestly excessive, the applicant relied upon a number of authorities, including R v Heinze,[61] R v Grant,[62] DPP v Penny,[63] and R v Ellery.[64]
[61][2005] VSCA 124.
[62][2006] VSC 235.
[63][2012] VSCA 203.
[64][2012] VSC 349.

The applicant’s counsel on the plea[65] specifically disavowed reliance upon the applicant’s Narcissistic Personality Disorder as giving rise to Verdins considerations, and any reliance upon principles 1 and 2 of Verdins.[66] Relying upon this Court’s decision in Brown v The Queen,[67] however, the applicant submitted in this Court that his Narcissistic Personality Disorder should be taken into account as reducing his moral culpability, and that principles 1 and 2 of Verdins were engaged. In order to make good that submission, the applicant referred extensively to passages in the reports and evidence of the neuropsychologist, Dr Borg, and the report from the clinical psychologist, Ms Mynard, tendered on the plea.
[65]Not counsel who appeared for the applicant in this Court.
[66]Reasons [192]–[193].
[67](2020) 62 VR 491 (‘Brown’).

As we have already noted, the respondent conceded that the total effective sentence and non-parole period were manifestly excessive. The respondent contended, however, that there was no substance in the applicant’s contentions that the judge erred in her analysis of the seriousness of the applicant’s offending. Specifically, the respondent submitted that the judge was entirely correct when she described the applicant as being ‘embedded’ in the legal system. All of the judge’s conclusions about the seriousness of the applicant’s offending were, it was submitted, well-open to her Honour.

That said, during the course of argument, in addition to accepting that the total effective sentence and non-parole period were manifestly excessive, the respondent ultimately conceded that the individual sentences imposed on each of the attempting to pervert the course of justice charges and the false accounting charge were manifestly excessive as well.

So far as resentencing the applicant was concerned, the respondent contended that, on the evidence called and tendered on the plea, this Court should not accept that the applicant’s Narcissistic Personality Disorder reduced his moral culpability, or that principles 1 and 2 of Verdins were engaged. The respondent submitted that the necessary causal nexus between the applicant’s Narcissistic Personality Disorder and his offending was not established by the evidence.

Consideration

There is no substance in the applicant’s submission that the sentencing judge erred in her assessment of the gravity of the attempting to pervert the course of justice charges.

First, it was well open to the judge to conclude that at the time the applicant gave evidence and/or an undertaking that he would supervise a relevant offender, and report breaches of bail conditions to the informant in that offender’s case, the applicant had no intention of doing what he said and gave an undertaking (on oath) he would do. When one examines the offending constituting charge 6 (the Violatzi matter) it is plain, from the conversations the applicant had with Lambrose on the morning and afternoon of the very day on which he gave evidence on the bail application, that at the time he gave evidence the applicant knew that he would not comply with the undertaking he gave the Court.

While the temporal connection between the applicant’s evidence and undertakings about what he would do and the offending in the other attempting to pervert the course of justice charges is not as close as it was in relation to charge 6, we see no basis for concluding that her Honour was wrong in coming to the conclusion that, on the occasions the applicant gave evidence in support of Violatzi, Grae, Martin and Georgiou, he ‘gave evidence outlining a program of rehabilitation which [he] clearly did not intend to impose’.[68]
[68]Reasons [122].

Secondly, we see no error in the judge’s conclusion that the applicant was ‘a person embedded in the legal system’[69] and that this fact, coupled with the other matters relied upon by the judge, placed the applicant’s offending on the attempting to pervert the course of justice charges ‘at the upper range of seriousness’.[70]
[69]Ibid [129].
[70]Ibid [119].

The applicant’s submission that, because he was not an expert witness whose qualifications to give evidence depended on the acceptance by him of a duty owed to the Court, his offending was less serious than equivalent offending that might have been engaged in by such an expert witness, must be rejected. To the contrary, the applicant’s misleading of the courts was at least as serious (if not more so) than equivalent offending which might have been committed by an expert witness in the context of a court proceeding where the parties may have engaged competing experts.

Specifically, in recent years the courts have become particularly conscious to impose sentences that are directed to the rehabilitation of offenders in cases in which the offending was the product of, or related to, the offender’s drug abuse. In the lower courts, and in particular in the Magistrates’ Court, conditions imposed in respect of the grant of bail are frequently directed to assisting the offender’s rehabilitation. In such cases, the imposition of such conditions involves a stick-and-carrot approach. The ‘stick’ consists of the risk to the offender of the loss of liberty if the conditions of bail are not complied with. The ‘carrot’ is that, on sentencing, the steps taken by the offender to genuinely rehabilitate himself or herself, while on bail awaiting the resolution of proceedings, will likely ensure a more lenient sentence. Conduct of the kind engaged in by the applicant was calculated to undermine the important therapeutic approach taken by courts on such occasions.

As the judge noted,[71] the lower courts in particular are most reliant on the assurances and undertakings given by people in the position of the applicant, in respect of the compliance with conditions imposed on grants of bail, or the imposition of non-custodial sentences. The applicant’s conduct very much undermined the necessary trust which courts place in people who give evidence and undertakings of the kind given by the applicant in this case.
[71]Ibid [123].

For the reasons given by the judge, the offending giving rise to the attempting to pervert the course of justice charges was objectively serious, and the applicant’s moral culpability was high. The applicant was not motivated by any misplaced sense of compassion in respect of the offenders for whom he took responsibility. Rather, it would seem from the report of Ms Mynard that he was driven by ego and a desire to be self-important. In effect, instead of guiding and encouraging the offenders, who were entrusted to his supervision, away from their drug habits, he provided cover for their continued abuse of drugs. In that way, he significantly undermined the rehabilitative purposes for which the offenders were either bailed or sentenced.

The objective seriousness of the applicant’s offending is, however, not the only matter that must be considered when determining whether the sentences imposed upon him were manifestly excessive. However, there were a number of aspects of the applicant’s personal circumstances that, together, constituted substantial mitigating factors. The applicant’s personal circumstances (including his plea of guilty and the issues created by the COVID-19 pandemic) need to be synthesised as part of the sentencing process. In addition to the matters we have already referred to when summarising the judge’s reasons for sentence (including the applicant’s neurodegenerative condition), each of which were significant mitigating considerations, the following matters personal to the applicant need to be taken into account:

·the applicant was born in 1947, and was 72 at the time of sentencing;
·at the time of sentencing, he suffered from a range of serious health issues;
·in September 2018, he was diagnosed with cancer in his right lung; he underwent a partial lung resection in December 2018 with removal of the right lower lobe and a segment of the right upper lobe; and, while in remission at the time of sentencing, his prognosis was less than 50 per cent for long-term survival; he suffered from ischemic heart disease, type 2 diabetes, emphysema and bronchiectasis, causing him to suffer shortness of breath, coughing which affected his sleep, and some chest wall pain; and
·because of COVID-19, the applicant’s respiratory problems were, as the judge put it, ‘particularly relevant’.[72]

[72]Ibid [214].

Collectively, those factors have the consequence that a term of imprisonment will be significantly more burdensome for the applicant than for a younger prisoner in good health.

Notwithstanding the objective gravity of the offending, having regard to the applicant’s personal circumstances (specifically, his age, his neurodegenerative disorder and his other health issues), we accept the respondent’s concession that the total effective sentence and non-parole period imposed by the judge are both manifestly excessive. We also accept that the individual sentences on each of the attempting to pervert the course of justice charges were manifestly excessive. If the applicant had fallen to be sentenced on any one of these charges in isolation, it would not have been open to the sentencing court to sentence him to any of the individual terms of imprisonment imposed by the judge. That said, her Honour was entirely correct in concluding that each charge of attempting to pervert the course of justice required a term of imprisonment measured in years.

It is not necessary to say anything about whether the sentence originally imposed on the false accounting charge was manifestly excessive. The respondent conceded (again correctly in our view) that the making of the pecuniary penalty order in the sum of $448,000 was fresh evidence which this Court could take into account. In the circumstances, we are persuaded that, in addition to setting aside the sentences on the attempting to pervert the course of justice charges, the sentence on the false accounting charge will also be set aside.

As we have already said, counsel for the applicant in this Court submitted that the applicant’s Narcissistic Personality Disorder gave rise to Verdins considerations, specifically engaging principles 1 and 2 set out in that decision. Counsel submitted that the applicant’s Narcissistic Personality Disorder reduced his moral culpability because the evidence of Dr Borg and Ms Mynard supported a conclusion that the disorder had one or more of the effects identified by the Court in Verdins, namely:

(a) impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.[73]

[73]Verdins (2007) 16 VR 269, 275 [26] (citations omitted).

Having scrutinised carefully the evidence of Dr Borg and Ms Mynard,[74] we are not persuaded that the applicant’s Narcissistic Personality Disorder reduced the moral culpability of the applicant’s offending. At best, the applicant’s Narcissistic Personality Disorder may explain aspects of his offending. The present case does not involve a personality disorder of such severity that it resulted in any of the effects identified in Verdins.[75]
[74]As to which, see Brown (2020) 62 VR 491, 493 [6], 507–9 [61]–[67].
[75]Verdins (2007) 16 VR 269, 275 [26]. See further, Brown (2020) 62 VR 491, 507 [59]–[60], 509 [68]–[69].

During the course of the hearing in this Court, the applicant appeared over a video link sitting in a wheelchair. Counsel for the applicant told us that the applicant uses a wheelchair to avoid the risk of falls from which he suffered. The applicant’s counsel wished to place up-to-date neuropsychological evidence before the Court as to the applicant’s current condition. There was no objection to this course by the respondent and, in the circumstances, we gave the applicant leave to file an up-to-date report of an examination which was to be conducted of the applicant three weeks after the hearing.

In accordance with the leave granted, the applicant filed an up-to-date report from Dr Borg. Dr Borg reviewed the applicant on 2 February 2022. On review, she confirmed her diagnosis of a mild neurocognitive disorder. At the time of the plea hearing, Dr Borg’s opinion was that this disorder was of unknown aetiology. In her latest report, she said that she now considered the disorder to be likely secondary to poorly controlled diabetes. Dr Borg said that her current findings indicated subtle declines (since her examinations in 2020) in aspects of attention and executive functioning. She said that these declines would be anticipated given his consistently elevated blood sugar levels as well as ongoing vascular complications and medical comorbidities.

While Dr Borg found that the applicant continued ‘to impress with a severe degree of cognitive rigidity’, and that he continued to demonstrate impairments to non-verbal reasoning, with his planning capabilities being ‘severely compromised’, there had been some mild improvements secondary to the cessation of his benzodiazepine treatment. However, Dr Borg also expressed the opinion that there is an increased risk of the applicant developing vascular dementia — meaning that the possibility of the applicant’s cognitive functioning deteriorating further in the future could not be discounted. Dr Borg said that this was particularly so given the challenges associated with the applicant’s diabetic management.

Having regard to all of the circumstances of the offending, the circumstances personal to the applicant (including his age and current medical condition) and the applicant’s plea of guilty (including the very significant utilitarian value in that plea),[76] we would resentence the applicant as follows:
[76]See Worboyes v The Queen [2021] VSCA 169, [35], [39].

Charge

Offence

Sentence

Cumulation

1

Attempt to pervert the course of justice (Grae)

3 years and 3 months

1 year

2

Attempt to pervert the course of justice (Martin)

3 years and 6 months

Base

3

Attempt to pervert the course of justice (Raydan)

2 years and 9 months

8 months

4

Trafficking in a drug of dependence (cocaine and methylamphetamine)

2 years

6 months

5

Trafficking in a drug of dependence (diazepam, oxycodone and alprazolam)

1 year

—

6

Attempt to pervert the course of justice (Violatzi)

3 years and 3 months

1 year

7

Attempt to pervert the course of justice (Elabed)

3 years

10 months

8

Attempt to pervert the course of justice (Georgiou)

3 years

10 months

9

False accounting

1 year

8 months

10

Possess a general category longarm

1 month

—

11

Possess an unregistered general category handgun

3 months

—

Total Effective Sentence:

9 years

Non-Parole Period:

5 years

In resentencing the applicant, we have concluded that while the original sentences on charges 1 to 3 and 6 to 8 should be set aside, the orders for cumulation made by the judge in relation to those sentences were entirely appropriate. Additionally, because of the applicant’s age and health problems, we have fixed a relatively short non-parole period.

Conclusion

The application for leave to appeal will be granted, the appeal allowed and the appellant resentenced as we have foreshadowed above.

- - -

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to pervert the course of justice (Grae), common law and s 320 Crimes Act 1958	25 years	7 years	1 year
2	Attempt to pervert the course of justice (Martin), common law and s 320 Crimes Act 1958	25 years	7 years and 4 months	Base
3	Attempt to pervert the course of justice (Raydan), common law and s 320 Crimes Act 1958	25 years	6 years	8 months
4	Trafficking in a drug of dependence (cocaine and methylamphetamine), s 71AC Drugs, Poisons and Controlled Substances Act 1981	15 years	2 years	6 months
5	Trafficking in a drug of dependence (diazepam, oxycodone and alprazolam), s 71AC Drugs, Poisons and Controlled Substances Act 1981	15 years	1 year	—
6	Attempt to pervert the course of justice (Violatzi), common law and s 320 Crimes Act 1958	25 years	7 years	1 year
7	Attempt to pervert the course of justice (Elabed), common law and s 320 Crimes Act 1958	25 years	6 years and 6 months	10 months
8	Attempt to pervert the course of justice (Georgiou), common law and s 320 Crimes Act 1958	25 years	6 years and 6 months	10 months
9	False accounting, s 83(1)(b) Crimes Act 1958	10 years	4 years	22 months
10	Possess a general category longarm, s 6(1) Firearms Act 1996	2 years	1 month	—
11	Possess an unregistered general category handgun, s 7B(1) Firearms Act 1996	7 years	3 months	—
Total Effective Sentence:		14 years
Non-Parole Period:		9 years
Pre-Sentence detention:		283 days
Section 6AAA statement:		17 years with a non-parole period of 13 years

10	Possess a general category longarm		1 month	—
11	Possess an unregistered general category handgun		3 months	—
Total Effective Sentence:		9 years
Non-Parole Period:		5 years

[2022] VSCA 16

24 February 2022