Director of Public Prosecutions v Argyropoulos

[2022] VCC 2329

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-00337

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILL ARGYROPOULOS

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JUDGE:	JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	DPP v Argyropoulos
MEDIUM NEUTRAL CITATION:	[2022] VCC 2329

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence              

Catchwords:              Plea of guilty – offences of attempting to pervert the course of justice, trafficking and possession of a drug of dependence, cultivation of cannabis, theft, possession of firearm holster contrary to a firearm prohibition order, theft, failing to comply with reporting obligations and related summary offences, including unlawful assault and installing, using and maintaining a tracking surveillance device – relevant prior criminal history – gravity of offence of attempting to pervert the course - strikes at the heart of the administration of justice – aggravated by having occurred in the context of an intimate relationship marked by violent and controlling behaviour culminating in surveillance of the victim – trafficking in methylamphetamine inherently serious – Verdins principles apply but moderated given withdrawal from mental health treatment and drug use – prospects of rehabilitation guarded and reliant on compliance with mental health treatment into the future.

Legislation Cited:      Sentencing Act (Vic)1991

Cases Cited:R. v. Verdins (2007) 16 VR 269; DPP v. O’Neill [2015] VSCA 325; R. v. Buscema [2011] VSC 206; Carter v The Queen [2020] VSCA 156; DPP v Farrugia [2019] VCC 505; Zakkour v The Queen [2020] VSCA 72

Sentence:                  Total effective sentence of two years and five months’ imprisonment to be followed by an 18-month community correction order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Office of Public Prosecutions Victoria
For the Accused	Mr A.J. Patton	Valos Black and Associates

HER HONOUR:

1Bill Argyropoulos, you have pleaded guilty to the following offences on Indictment:

(a) Charge 1 - failing to comply with reporting obligations contrary to s 46(1) of the Sex Offenders Registration Act 2004, the maximum penalty for which is 5 years’ imprisonment;

(b)   Charge 2 - attempting to pervert the course of justice contrary to the common law, the maximum penalty for which is 25 years’ imprisonment;

(c)   Charge 3 – cultivation of a narcotic plant, namely Cannabis L, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act), the maximum penalty for which is 1 year’s imprisonment and/or 20 penalty units;

(d) Charge 4 – theft contrary to s 74(1) of the Crimes Act 1958, the maximum penalty for which is 10 years’ imprisonment;

(e) Charge 5 – possessing a firearm related item contrary to a firearm prohibition order contrary to s 112B of the Firearms Act 1996, the maximum penalty for which is 10 years’ imprisonment;

(f)    Charge 6 – trafficking in a drug of dependence contrary to s 71AC(1) of the DPCS Act, the maximum penalty for which is 15 years’ imprisonment; and

(g)   Charge 7 – possession of a drug of dependence contrary to s 73(1) of the DPCS Act, the maximum penalty for which is 1 years’ imprisonment or 30 penalty units.

2In addition, you have also pleaded guilty to the following related summary offences:

(a) Possess a prohibited weapon without exemption/approval contrary to s 5AA of the Control of Weapons Act 1990, the maximum penalty for which is 2 years’ imprisonment (summary charge 6);

(b) Possess a controlled weapon without lawful excuse contrary to s 6(1) of the Control of Weapons Act 1990, the maximum penalty for which is 1 year’s imprisonment (summary charge 7);

(c) Unlawful assault contrary to s 23 of the Summary Offences Act 1966,  the maximum penalty for which is 3 months’ imprisonment and/or 15 penalty units (summary charge 9);

(d)   Install, use and maintain a tracking surveillance device without consent contrary to s 8 of the Surveillance Devices Act 2007, the maximum penalty for which is 2 years’ imprisonment and/or 240 penalty units (summary charge 11); and

(e) Contravening a conduct condition of bail contrary to s 30A(1) of the Bail Act 1977, the maximum penalty for which is three months’ imprisonment or 30 penalty units (summary charge 29).

3The charges relate to various offences committed by you, the majority of which were committed between April 2021 and May 2021, when you were 53 years old. You were charged and remanded on 20 May 2021 and have remained in custody since that date.[1]

[1]An application for bail was refused on 12 August 2021.

Summary of offences

4The circumstances of your offending are set out in the Summary of Prosecution Opening dated 6 July 2022 which is the agreed basis upon which you are to be sentenced.

Offending relating to Ms Zara Tolmer[2]

[2] A pseudonym

5I deal first with your offending against Ms Zara Tolmer.  You had been dating Ms Tolmer in the four months leading up to these offences, having met through an online dating service and the two of you had commenced a sexual relationship. However, by April 2021, the relationship had begun to deteriorate. On 23 April 2021, Ms Tolmer was at your home. You became angry after asking why Ms Tolmer was not spending as much time with you. You wanted to know who she was spending time with and demanded to see her phone, snatching it out of her hand.

6As Ms Tolmer struggled to retrieve her phone from you, you kneed her in the ribs causing her pain. You then reached across and tried to unlock the phone using the facial recognition feature. While doing so, you hit Ms Tolmer in the face with her phone. She screamed and you let go. Ms Tolmer sought medical treatment from her general practitioner on 27 April 2021 for bruising to her face and tenderness to her chest. This is the conduct that gives rise to the summary offence of unlawful assault (summary charge 9).

7At around the time of this incident, you installed an iPhone, which you had set as a tracking device, in the grill behind the front licence plate of Ms Tolmer’s car. You did this without her knowledge or consent. On 3 May 2021 you told Ms Tolmer that you were tracking her movements in her car. You then told her where the tracker was located, and she took her car to a mechanic who located and removed the device. This conduct is the subject of the summary offence of installing, using and maintaining a tracking surveillance device without consent (summary charge 11).

8On 5 May 2021, Ms Tolmer made a statement to police regarding your conduct.

9On 12 May 2021, you were arrested by police and interviewed in relation to the allegations made by Ms Tolmer, which you denied. When asked about hitting Ms Tolmer to the face with her phone, you replied, “that’s fucking bullshit”, “no comment” and “Yeah, that’s crap”. You said, ‘I’ve got evidence that it’s not true. And whoever wrote this has got a wild imagination.’ You first denied ever installing a tracker on her vehicle, stating, “that’s bullshit’, later admitting, “I put a tracker – it wasn’t a tracker – and I found out she was lying’. You admitted to police you used an iPhone as a tracker.

10You were arrested and bailed that day subject to a condition that you not contact the victim in any way.

11The offence of attempting to pervert the course of justice  - charge 2 - arises from the content of a series of text messages you sent Ms Tolmer two days later, on 14 May 2021. These messages included the following statements:

·        “I want you to go there and tell them you want to retract your statement. I will give you the intervention order like you want on court on Tuesday”;

·        “Please don’t let them use you like a puppet to get me. Your (sic) smarter than that Zara”;

·        “You need to go there and be strong and don’t listen to the bullshit they tell you. Please think of my kids baby please. I’m so good with them now, if I go to jail for a year it will kill them”;

·        “After your work you need to go to the Werribee police station and ask to speak to the Sergeant. Tell him your (sic) unhappy with results and wish to retract your statement. If they say bullshit like you won’t get restraining order you say that’s fine. But I’ll give you the restraining order for one year at court on Tuesday. Whatever you do don’t tell them we spoke or message because then I’m fucked”.

12Ms Tolmer replied to the effect that she would make another statement to police confirming she never wanted criminal charges laid, but only sought an intervention order. On 17 May 2021, Ms Tolmer attended the Werribee Police Station and made a further statement indicating that she did not wish to pursue the charges against you.

13In addition to the text messages sent on 14 May 2021, between that date and 19 May 2021 you regularly contacted the victim by phone. You did so in contravention of the conduct conditions of the bail entered on 12 May 2021. This is the subject of summary charge 29 – contravene bail conditions.

Drug-related and weapons offences

14I now turn to the drug-related and other offences that arise following the execution of a search warrant at your property on 20 May 2021.

15In the garage of your property, the police located a hydroponic setup with several cannabis plants growing. A forensic biologist subsequently identified six plants which had been grown for at least 17 weeks and a further 272.4 grams of dried cannabis. The total weight of the six plants and other cannabis was 79.35kg. This gives rise to the charge of cultivating a narcotic plant (charge 3).

16An electrical bypass was also located concealed in the ground lounge room wall. After you alerted police to the presence of the bypass, this was disconnected. The energy provider calculated that the bypass resulted in the illegal use of approximately 9361 kWh for the period 22 January 2021 to 20 May 2021. This conduct gives rise to the charge of theft (charge 4). The prosecution led no evidence as to the value of the electricity stolen by use of the bypass.

17On 11 September 2020 you were served with a Firearm Prohibition Order (‘FPO’). During the search, police located a gun holster in a box in the second bedroom, which is the subject of the charge of possessing a firearm-related item contrary to a FPO (charge 5).

18The police also located two plastic bags with a yellow crystal substance in the bedroom cupboard. Subsequent forensic analysis confirmed the substance to contain 35.5 grams of methylamphetamine, which is the subject of the charge of trafficking in a drug of dependence (charge 6).

19The further offence of possession of a drug of dependence (charge 7) arises from the police locating four bottles of clear liquid in various rooms of the house, which were analysed and found to contain 58.7 grams of 1, 4-butanediol.

20During the search warrant, the police also located a large number of prohibited weapons throughout the house, including credit card knives, throwing knives, butterfly knives, flick knives, batons, daggers, Kubatons, and a Samurai sword.[3] This is the subject of summary charge 6 – possess prohibited weapon without exemption or approval. In addition, the police located a series of controlled weapons, including double edged knives, double sided knives, folding knives, hunting knives and a ceremonial knife.[4] This is the subject of summary charge 7 – possess controlled weapon without excuse.

[3]1 x Credit Card Knife, 3 x Extendable Batons, 4 x daggers, 5 x throwing knives, 3 x butterfly knives, 6 x credit card knives, 10 x flick knives, 3 x money clip knives, 1 x Push knife, 2 x Kubatons, 1 x trench knife, 1 x Samurai Sword

[4]3 x double edged knives, 9 x double sided knives, 22 x folding knives, 8 x hunting knives, 5 x miscellaneous knives, 1 x Ceremonial knife

21You were then arrested and interviewed a second time. Amongst other things, you told police that you collected the knives and other weapons but did not know the gun holster was there. You also told police that you had no knowledge of the bags containing the yellow crystals and believed the clear liquid was likely to be water.

Failure to comply with reporting obligations

22Charge 1 – being a charge of failing to comply with reporting obligations relates to your conduct in failing to report an email account you created between 5 October 2020 and 20 May 2021 contrary to your reporting obligations under the Sex Offenders Registration Act 2004.

Procedural history

23After being charged, the matter resolved prior to committal hearing on 4 March 2022. The prosecution accepts that this was a plea entered at the earliest opportunity. An earlier date for the hearing of your plea was not reached and the matter proceeded before me on 13 October 2022, some seven months after the matter resolved. The plea was then adjourned to today’s date for a comprehensive community correction order assessment to be undertaken.

Gravity of offending and victim impact

24The objective gravity of the offence of attempting to pervert the course of justice is marked by the maximum penalty of 25 years’ imprisonment. The authorities make it clear that the seriousness of this offence is derived from the fact that it strikes at the heart of the justice system and therefore, ordinarily warrants the imposition of a custodial sentence.[5] Given the nature of this offence, it is objectively the most serious of the charges to which you have pleaded guilty.

[5]R v Buscema [2011] VSC 206

25The offence is aggravated by the fact it occurred in the context of a brief intimate relationship marked by an incident of violence and more particularly, of ongoing controlling behaviour directed at the victim, culminating in the installation of the tracking device. Although you are not to be punished twice for separate offences, the messages you sent to Ms Tolmer in an attempt to avoid prosecution for your conduct, was an extension of your manipulative and controlling behaviour towards her. It was in that context that Ms Tolmer did, in fact, withdraw her complaint to police about your conduct.

26I accept the submission made on your behalf that this is not at the upper end of seriousness for the offence of attempting to pervert the course of justice. For instance, your messages were not accompanied by violence, threats of violence or inducements directed at the victim. The offending was of limited duration. However, this is not a low level example of this offence either. You sent multiple messages pleading with Ms Tolmer to withdraw her complaint against you, undeterred by the fact of your prior arrest or the existence of bail conditions prohibiting any contact with Ms Tolmer. Moreover, you were aware that the tenor of your messages was wrongful, as clearly indicated in your final plea to Ms Tolmer not to tell the police about the messages ‘or else I am fucked’. There is a need for the sentence I impose to deter both you and others from conduct designed to undermine the proper administration of justice.

27Viewed in their totality, the offending against Ms Tolmer over the those few months driven by jealousy and paranoia, followed by your attempt to avoid any punishment for your behaviour marks the seriousness of your conduct. The need for the sentence to operate as a deterrent to others who may be minded to engage in such behaviour towards their partners is a significant sentencing consideration.

28Your offending had a significant impact on Ms Tolmer. In her victim impact statement she speaks of experiencing ongoing panic attacks and a heightened fear for her safety. She struggles at work and has trouble sleeping. Ms Tolmer states she has sought medical advice for her anxiety. Ms Tolmer feels that she is ‘no longer the person she was’ prior to your offending. I have taken the impact your offending had on Ms Tolmer into account in sentencing you.

29I turn now to the drug-related offences. Trafficking in methylamphetamine is a serious offence. Here however, I accept there is no evidence that your trafficking was  sophisticated or part of a broader criminal enterprise, but rather was motivated by a willingness on your part to supply the drug to associates. Although it does not aggravate this offending, it is relevant to the sentence I impose that you have a prior conviction for trafficking in a drug of dependence, namely heroin, from 2015.

30As to the charge of cultivating cannabis, it is the quantum of the cannabis grown by you that also marks the seriousness of this offending. However, it is not suggested you grew the cannabis for any reason other than personal use.

31The seriousness of your offending in possessing the prohibited and controlled weapons is reflected in the sheer quantity of weapons in your possession. However, beyond that indicator, it is accepted by the prosecution that your motivation in possessing these items was as a collector of such weapons. Specifically, I accept there is no evidence you possessed the weapons for a criminal purpose. Similarly, the seriousness of possessing the gun holster relates to the fact you subject to a firearm prohibition order but beyond that fact, there are no other aggravating features of that offence. However, your prior history for weapons offences means the sentence I impose must deter you from possessing such items without a lawful excuse.

32Finally, a person who is subject to the sex offender registration obligations is under a strict obligation to comply with those requirements. You failed to do so. There is no other aggravating feature of that offending. Specifically, there is no evidence you used the email account to facilitate any contact with children.

Personal circumstances

33I turn to your personal history and background.

34Despite enjoying a predominantly stable childhood and early adolescence, your adult years have been marred by both drug abuse and mental illness that have  impacted on each of your three relationships of significance. Your intense jealously and mistrust undermined every one of those relationships. Your behaviour was identified as a form of ‘delusional jealousy’ at the time of two involuntary psychiatric admissions in 2009.[6]

[6]Exhibit 1 - Psychological report of Sandra Cokorilo dated 5 April 2022 at [51]

35You were born in Melbourne in 1968 and were close to both of your parents until they passed away; first your mother in 2018 followed by your father in 2021. You describe your mother as your ‘rock’ and your father as a ‘good man’ although you report he was a strict disciplinarian. You are one of four siblings and remain close to one your brothers. Your relationship with your two other siblings is made difficult by their own mental health conditions.

36You completed your secondary school education to Year 10 and then began an apprenticeship in plumbing. You worked in the family plumbing business for a period but after a disagreement with your father and brother, began your own plumbing company which you operated until 2015. You ceased that work only after you were remanded in custody, which you report was for breaking into your former partner’s home.  You have been variously diagnosed with depression, bipolar disorder and schizophrenia since that time for which you have been hospitalised in the past. You have not worked since 2015 and remain on a disability support pension.

37Your first relationship with your ex-wife lasted 22 years and together you have an adult daughter and son. You report this marriage broke down because you believed you wife was having an affair. After the relationship ended in 2014 you had no contact with your children for four years. You now have a positive relationship with both of your adult children.

38Your second relationship ended after 18 months when you were remanded in 2015. This was followed by a volatile six-month relationship with a woman 26 years your junior which ended due to conflict caused by mutual jealousy.

39You began using illicit drugs in your late teens, predominantly cannabis. Although you had a period of abstinence prior to your mother’s death in 2018, you then returned to daily use of up to one ounce per week. Between the ages of 25 and 27, you were using a gram of methamphetamine daily up until 2017. You ceased all methamphetamine use after completing a four-month residential rehabilitation program, but again relapsed following your mother’s death in 2018. Up until your remand on these matters, you were smoking methamphetamine around three times a week.

40Following your remand, you have been employed as a screen printer within prison industries and provide computer support for the inmates in your unit. You have participated in video calls to your children and telephone calls to your siblings.

41You admit your prior criminal history. You have had ten separate court appearances since 1998, when you were first convicted for unlawful assault. In May 2008, you were sentenced to a three month term of imprisonment, which was wholly suspended for recklessly causing injury and a 24-month community based order for offences including theft, recklessly causing injury, weapons and handgun offences and possessing cannabis and methylamphetamine.

42In October 2013, you were convicted and sentenced to a 12-month community correction order for contravening a family violence intervention order and using a carriage service to menace. It was a condition of that order that you complete a Men’s Behavioural Change Programme.  This order was breached by you and in 2015, you were resentenced to 25 days’ imprisonment for the offending.

43In July 2015 you were sentenced to 120 days’ imprisonment for weapons offences, trafficking heroin and recklessly causing injury. In November 2016 you were sentenced to 2 days’ imprisonment for unlawful assault, bail offences and possession of methylamphetamine.

44Between February 2017 and July 2020 you had a further five court appearances for offences including persistent contravention of a family violence order, weapons offences, using a carriage service to menace, false imprisonment, threat to inflict serious injury and unlawful assault. You were sentenced to imprisonment on each occasion. On 24 July 2017 you were also sentenced for the offence of inducing a child to take part in sex work, for which you were sentenced to 12 months’ imprisonment and subject to the registration obligations imposed under the Sex Offenders Registration Act 2004 for 8 years.

45Of concern, your previous sentences, including custodial sentences, failed to deter you from this offending. This is relevant to my assessment of your future prospects, to which I return later in my reasons.

Mental health

46You were assessed for the purposes of the plea by Ms Sandra Cokorilo, psychologist on 21 March 2022. Her report dated 5 April 2022 was tendered on your plea.

47You were asked about the circumstances of your offending by Ms Cokorilo. You told her that after commencing your relationship with the victim, you ‘could tell she was lying’. You said you believed she was ‘faking’ her location with her iPhone and that you began questioning yourself and thought you were ‘going crazy again’.  You told Ms Cokorilo you placed the tracking device on her car to prove the victim was lying to you. You said you argued about her dishonesty towards you, grabbed her phone, which hit her in the face.

48You told Ms Cokorilo that you engaged with a psychologist for eight years after your marriage broke down and attended monthly sessions with a psychiatrist for a number of years. A report from your general practitioner, Dr Peter Vu dated 24 February 2020 states you were treated for ‘Delusional Jealousy” between 2007 and 2010; and for ADHD and Affective Bipolar Disorders from 2016, being a diagnosis made by your then psychiatrist Dr Luis Reibl. Dr Vu’s report states that up until November 2019 you regularly attended his clinic for monthly depot injections and other treatment. With treatment, Dr Vu noted that your mental health condition was ‘much improved and stable’. However, at the time of this offending, you had ceased all medical and pharmacological treatment.

49Ms Cokorilo’s report outlines that you were subject to two involuntary psychiatric admissions in 2009.

50Having undertaken psychometric testing during your assessment, Ms Cokorilo confirmed that you met the diagnostic criteria for a diagnosed Delusional Disorder, Bipolar Disorder, ADHD, cannabis abuse disorder and stimulant abuse disorder. You also presented with mild levels of anxiety.

Matters in mitigation

51On your behalf, Mr Patton provided detailed and considered written submissions highlighting the factors relevant in mitigation of your sentence, which he expanded upon during your plea hearing.

52First, and significantly is your early plea of guilty to each of the offences. Given you entered a plea prior to any committal hearing, you saved the victim from having to relive the offending by giving evidence in court. Your plea is an acknowledgment of responsibility for your offending and through which you express remorse. There is heightened utility in entering a plea at this time when trials are delayed due to the impact of the pandemic. You are entitled to, and will receive, a significant sentencing discount for entering a plea at the earliest opportunity.

53Moreover, I accept that you have expressed some remorse for your offending in your discussions with Ms Cokorilo. In her report, Ms Cokorilo states:

Mr Argyropoulos appeared genuine in his expression of remorse for his behaviour, stating he is sorry that the phone hit the complainant in the face, and he “did not mean to hurt her”. He acknowledged that he “took it too far” and should not have installed a tracking device in the [victim’s] car. He explained that he did it as he “thought I was going crazy, I knew she was lying to me”.

54Although these indications of remorse are positive, your future prospects of rehabilitation will largely depend on your effective engagement in ongoing mental health and drug treatment to address your offending behaviour and to improve your insight into the impact of your conduct. As Ms Cokorilo observed, you demonstrate ‘poor insight into [your] emotional states’.[7]

[7]Op. cit. at [61]

55The second matter relevant in mitigation of your sentence is the fact that you have a long-standing, complex array of mental health conditions, with a standing diagnosis of Bipolar Affective Disorder, Delusional Disorder and ADHD. Where there is a connection between an offender’s impaired mental functioning and the offending, the principles enunciated in the authority of Verdins[8] are enlivened, and may operate to reduce the offenders moral culpability for the offending and the need for the sentence to operate as a general and specific deterrent.  

[8]R. v. Verdins (2007) 16 VR 269

56To operate in mitigation, the mental impairment must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.[9] An offender must establish that the mental impairment affected their ability to appreciate the wrongfulness of the conduct or their ability to make calm and rational choices or to think clearly at the time of the offence.[10] The court must make this assessment based on cogent evidence.

[9]DPP v O’Neill [2015] VSCA 325, 47 VR 395 at [74]

[10]Ibid at [75]

57In Ms Cokorilo’s opinion, some aspects of your offending conduct was causally connected to your impaired mental functioning, namely your diagnosed ‘Delusional Disorder - jealousy type’. Ms Cokorilo states that your ‘delusions and paranoid ideation, including suspicion, mistrust, hostility and projections’ place you at a higher risk of reacting disproportionately to social circumstances you misinterpret. Ms Cokorilo states that your diagnosed Bipolar Disorder and ADHD also heightened your risk of engaging in poor decision-making and exercising self-control. As to the nexus between these conditions and your offending, Ms Cokorilo  states:

Whilst his drug use may have contributed to his offending, his delusions, affective instability, marked impulsivity and impairment in self-regulation and inhabitation are thought to be key factors in his offending. Although Mr Argyropoulos appears genuinely remorseful for his offending conduct, the concern is that his psychiatric conditions will continue to pose a risk of recidivism unless he is supported to consistently adhere to his pharmacological treatment and abstain from illicit drugs.

58Based on Ms Cokorilo expert opinion, I am satisfied that your diagnosed mental health disorders were connected with some of your offending behaviour towards Ms Tolmer, and operate in mitigation of the sentence to be imposed. Your moral culpability for your offending is not as great as that of a person without your complex and long-standing mental health conditions, the effect of which was to contribute to your delusional thinking and impulsivity. In Ms Cokorilo’s opinion, which I accept, these disorders heightened your paranoia and fuelled your delusions regarding Ms Tolmer’s infidelity, prompting you to snatch her phone to view its contents and to track her movements by installing the device on her car.

59However, as Mr Patton appropriately conceded, the extent to which your mental health disorders operate in mitigation can only be modest in circumstances where you had disengaged from mental health treatment, had ceased all medication and were self-medicating with illicit drugs at the time of the offending.

60Moreover, there is no evidentiary basis to find your conduct in attempting to pervert the course of justice was causally connected to your mental health disorders. Your moral culpability for this conduct, to avoid any punishment for your offending, is substantial.

61Ms Cokorilo assessed you as a high risk of future offending, having regard to your prior criminal history, prior polysubstance abuse, limited supports and the characteristics of your long-term psychiatric illness. On a positive note she states that many of your risk factors ‘are amenable to treatment’ including treatment for your history of drug abuse and ongoing psychiatric and psychological treatment. She also emphasises, as ‘imperative’, her recommendation that you adhere to your anti-psychotic medication to reduce future risk. Noting Dr Vu’s observation of your improved mental health and stability whilst medicated, compliance with your medication regime will be critical to your long-term prospects of rehabilitation.

62At present, I am guarded as to your future prospects, particularly when this offending is viewed in light of your prior criminal history. The protection of the community remains a relevant sentencing consideration in your case. Your future prospects will very much depend on your commitment to mental health treatment, sustained compliance with your medication regime, and remaining abstinent from illicit drugs.

63Finally, it is also relevant to the sentence I impose, that your time on remand has run in parallel to the restrictions imposed in custodial settings to respond to the risks posed by COVID-19. You were remanded on 20 May 2021 and have now spent 18 months in custody. During this period you have been subject to periods of 23-hour lockdown, limitations on educational and vocational programs, and the cessation of in-person visits. I accept that this has added considerably to the burden of your time in custody and have given this weight in reducing the sentence I impose. 

64In addition, your physical health has deteriorated in custody, requiring three admissions to hospital during your time on remand. Dr Vu’s report dated 24 February 2020 confirms your suffer from mild coronary disease and dyslipidaemia and require regular cardiological monitoring. On each of your admissions to St Vincent’s Hospital, you required treatment for acute angina. At the conclusion of each admission, you were subject to the 14-day quarantine requirement imposed in custody. I have taken these hardships in custody into account in sentencing you.

Other sentencing considerations

65In sentencing you for this offending, the paramount sentencing considerations are those of general deterrence, denunciation and just punishment. Others must be deterred from offending against their intimate partners fuelled by jealousy and anger. However, I accept that the role of general deterrence in respect of some of your offending against Ms Tolmer is lessened to some degree by the application of Verdins principles.

66The sentence I impose must also deter others from undermining the proper administration of justice by seeking to dissuade victims from making complaints to police and to clearly denounce such conduct.

67In light of your prior convictions, the sentence must also operate as a specific deterrent to you, including for drug-related offences, whilst promoting your prospects of rehabilitation. Community protection is achieved where an offender is supported to address their offending behaviours.

68I have also had regard to current sentencing practices to the extent they are comparable with your offending. In Carter v The Queen[11], the offender was aged 33 and had relevant prior convictions. He had been in an ‘on again, off again’ relationship with the victim for some years. At the time of the offending, the offender was on bail. The offending consisted of recklessly causing injury by grabbing the victim by the throat and pushing her against a wall, causing her bruising and difficulty breathing. He then punched the wall next to her. The next day the offender was present in the house with a sawn-off firearm when the victim returned to collect her belongings. He was then remanded and a family violence order taken out against him. In contravention of that order, the offender made 13 calls to the victim during which he threatened her with violence to retract her statement. A sentence of 2 years’ imprisonment was imposed for the offence of attempting to pervert the course of justice with a total effective sentence of 3 years’ imprisonment.

[11]Carter v The Queen [2020] VSCA 156

69In Carter’s case, the Court of Appeal considered the fact the attempt to pervert the course of justice was accompanied by threats and abuse elevated the offending beyond offences where the act consisted of attempting to dissuade or ask the victim to retract their statement. Your offending falls into the latter category.

70In the case of DPP v Farrugia,[12] the offender was a 33 year old with prior convictions. In that case, the offender instructed the victim to make a false statement and threatened her with violence if she did not. The offender was subject to a family violence intervention order at the time of the offending. For the offence of attempting to pervert the course of justice, he was sentenced to 2 years, six months imprisonment.

[12]DPP v Farrugia [2019] VCC 505

71Finally, in the case of Zakkour v The Queen,[13] the accused had prior convictions for weapons offences. In that case, the offender went to his former partner’s house and pulled off a curtain by reaching through the bedroom window. He was found in possession of a laser pointer. While in custody, the offender attempted to have people call the victim and ask her to withdraw her police statement, in contravention of a family violence intervention order. For the offence of attempting to pervert the course of justice, the offender was sentenced to 18 months’ imprisonment.  He received a total effective sentence of 1 year, 10 months’ imprisonment.

[13]Zakkour v The Queen [2020] VSCA 72

72I have had regard to the sentences imposed in these cases, insofar as they are instructive. As always, every case must be determined having regard to its own facts and circumstances.

73At the plea hearing, Mr Patton submitted that all relevant sentencing considerations could be met by the imposition of a term of imprisonment followed by a community correction order. He submitted this sentence was open given the time you have now spent in custody on remand. The prosecution did not argue against such a disposition, other than to contend that time served as at the date of the plea was insufficient to meet the punitive component of your sentence, particularly for the offence of attempting to pervert the course of justice. I agree with that submission.

74At the conclusion of the plea hearing, a comprehensive assessment was undertaken as to your suitability to undertake a community correction order (‘CCO’). You were found to engage well during the assessment and despite your prior history, were found suitable for such an order. You have consented to a CCO being made.

75In the assessment of Forensicare, it is recommended that you received ongoing treatment for your mental health and were assessed as displaying insight in to your need to engage in ongoing treatment and medication.

Sentence

76Balancing the matters to which I have referred, whilst having regard to the maximum penalties for each offence, I sentence you as follows.

77On charge 1 – failing to comply with reporting obligations – you are convicted and sentenced to 1 month’s imprisonment;

78On charge 2 – attempting to pervert the course of justice – you are convicted and sentenced to 18 months’ imprisonment. This is the base sentence.

79On charge 5 – possess a firearms related item in contravention of a FPO - you are convicted and sentenced to 2 months’ imprisonment.

80On charge 6 – trafficking in a drug of dependence – you are convicted and sentenced to 14 months’ imprisonment.

81On summary charge 6 – possess prohibited weapon – you are convicted and sentenced to 6 months’ imprisonment.

82On summary charge 7 – possess controlled weapon – you are convicted and sentenced to 3 months’ imprisonment.

83On summary charge 9 – unlawful assault – you are convicted and sentenced to 2 months’ imprisonment.

84On summary charge 11 – install, use and maintain a surveillance device – you are convicted and sentenced to 6 months’ imprisonment.

85On summary charge 29 – contravene a conduct condition of bail – you are convicted and sentenced to 1 month’s imprisonment.

86I make the following orders for cumulation. I order that 2 weeks of the sentence imposed on charge 5, 4 months of the sentence imposed on charge 6, 2 months of the sentence imposed on summary offence 6, 1 month of the sentence imposed on summary offence 7, 1 month of the sentence imposed on summary charge 9, 3 months of the sentence imposed on summary charge 11 and 2 weeks of the sentence imposed on summary charge 29 be served cumulatively upon the sentence imposed on charge 2 and upon each other. All other sentences are to be served concurrently. In fixing the amount of cumulation on summary charge 29, I have had regard to s 16(3C) of the Sentencing Act 1991 but also had regard to the sentencing principle of totality.

87This gives a total effective sentence of 2 years, 5 months’ imprisonment.

88Pursuant to s 18 of the Sentencing Act 1991 I order that 573 days of pre-sentence detention be reckoned as already served under this sentence.

89On charge 3 – cultivate cannabis, charge 4 – theft and charge 7 – possess a drug of dependence, you are convicted and sentenced to an 18-month community correction order to commence upon completion of your sentence of imprisonment. I make this order noting these offences either arise from the same set of facts or are alike in nature.

90In addition to mandatory conditions, I attach the following special conditions to the community correction order:

·supervision;

·mental health treatment and rehabilitation;

·drug treatment and rehabilitation (including testing);

·programs to reduce re-offending.

91Having considered the report of Corrections, I do not propose to impose hours of unpaid community work. The primary focus of the CCO is treatment aimed at best promoting and sustaining your rehabilitation and the community protection which will naturally follow.

92In addition, I order that, at least initially, your compliance with the CCO be monitored. I propose to list the matter for judicial monitoring before me no later than one month after your release from custody.

93In addition  to these special conditions, there are standard conditions which apply. First, and foremost you must not commit any other offences punishable by imprisonment during the 18-month order.  You must report within two working days of your release to the nearest community corrections office.  You are required to advise your supervising corrections office of any change of address where you are living and working and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections office.

94You should be aware that the order can be breached if you do not comply with it in terms of the conditions or if you re-offend whilst it is in place.  If you do, you may be charged with breaching the order. You could then be sentenced for breaching the order and can be resentenced on the charges that are the subject of the CCO.

95Pursuant to s 6AAA of the Sentencing Act 1991,  I declare that had you not pleaded guilty, the sentence I would otherwise have imposed would have been a sentence of five years’ imprisonment with a non-parole period of three years, six months.

96Finally, I make the disposal and forfeiture orders sought by the prosecution, noting they are not opposed.