Director of Public Prosecutions v Bacon
[2022] VCC 1508
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00531
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MAKAELA BACON |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2022 | |
DATE OF SENTENCE: | 13 September 2022 | |
CASE MAY BE CITED AS: | DPP v Bacon | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1508 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Perjury – Borderline Personality Disorder - Verdins – reduced moral culpability – young offender – good prospects of rehabilitation – community correction order, mental health condition
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic.)
Cases Cited:R v Morgan (1995) 82 A Crim R 518; Brown v The Queen (2020) 62 VR 491; Verdins v The Queen (2007) 16 VR 269; Veen v The Queen (No 2) (1988) 164 CLR 465; Azzopardi v The Queen [2011] VSCA 372; Boulton v The Queen (2014) 46 VR 308; DPP v Malikovski [2010] VSCA
Sentence: 18-month Community Correction Order with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Lauren Gurry | Office of Public Prosecutions |
| For the Accused | Mr Tim Marsh & Ms Ran Zaydan | Stary Norton Halphen |
HIS HONOUR:
Makaela Bacon, you have pleaded guilty to five charges of perjury contrary to s 314(1) of the Crimes Act 1958 (Vic). The maximum penalty for each of those charges is 15 years’ imprisonment.
In addition, you have pleaded guilty to the related summary offence of making a false report to police contrary to s 53 of the Summary Offences Act 1966 (Vic). The maximum penalty for that offence is 120 penalty units or 1 year of imprisonment.
I sentence you on the basis of the Summary of Prosecution opening dated 26 August 2022, which is an agreed summary. The following summary of your offending is drawn from the opening.
Factual Background
The victim of your offending is your ex-partner Bryce Cadby. At the time of the offending, you had known Mr Cadby for approximately two years and had been in a relationship with him since late December 2019.
Circumstances of the Offending
Charge 1 – 24 February 2020
On 24 February 2020, you attended the Werribee Police Station and reported that a family violence incident had occurred between you and Mr Cadby the previous evening. You made a statement to Victoria Police in which you reported that the following events had occurred:
i)You had been in a relationship with Mr Cadby for approximately two months and that you had started dating after Christmas 2019, having known each other for around two years.
ii)On Sunday 23 February 2020, you had travelled to Mr Cadby’s house in the early afternoon and you cuddled and watched TV together. Mr Cadby attempted to become more intimate with you and you refused his advances. You told police that after you suggested that you should take a break in the relationship, the two of you began to argue in his bedroom, and that Mr Cadby choked you, causing you to lose consciousness. You said that you later regained consciousness and left his house.
The statement signed by you contained an acknowledgement that the statement was true and correct and that a person making a false statement is liable to the penalties of perjury. In signing the statement, you acknowledged that it was true and correct knowing that it was false (Charge 1 – Perjury).
As a result of this statement, Mr Cadby was arrested and interviewed at Pakenham Police Station the following day, being 25 February 2020. He denied all allegations. The police also noticed that Mr Cadby walked with a heavy limp. He advised Victoria Police officers that he had an acquired brain injury which effectively prevented him being able to move half of his body. Mr Cadby was subsequently served with a Complaint and Warrant for a Family Violence Intervention Order and was bailed to appear at Dandenong Magistrates’ Court on 27 February 2020.
Charge 2 – 26 February 2020
On 25 February 2020, you underwent a medical assessment and examination at Werribee Mercy Hospital as part of the police investigation of your allegations. Photographs were taken of your injuries and a CT scan was taken of your neck. The scan returned a normal result with no apparent acute injuries. The photographs revealed marks that spanned the entire way around your neck and were considered to be inconsistent with bruising caused by strangulation.
On 26 February 2020, you attended the Dandenong Multi-Disciplinary Centre and provided a second, more detailed statement to Police about the events that you claimed took place on 24 February 2020. In this statement, you made the following further allegations:
i)When you told Mr Cadby that you should take a break in the relationship, you left to walk downstairs from his bedroom. You told police that he followed you and pushed you from behind causing you to fall down the stairs. You said that as you fell forwards you somersaulted, and hit your head, but were not seriously injured.
That statement also contained an acknowledgement that it was true and correct and that a person making a false statement is liable to the penalties of perjury. You signed the statement and acknowledged that it was true and correct knowing that it was false (Charge 2 – Perjury).
Related Summary Offence – 7 March 2020
On 27 February 2020, an interim Family Violence Intervention Order was granted at Dandenong Magistrates’ Court listing you as the Affected Family Member and Mr Cadby as the Respondent.
On 7 March 2020, you attended the Werribee Police Station to report what you described as a breach of this Intervention Order. You produced a screenshot of a Facebook message ostensibly sent to you by ‘Bryce’ on 1 March 2020. The message stated:
“I fucking hate you. Im going to kill you. Your a slut and whore and hope you rot in hell. You deserved to die that day.”
Although you did not provide a statement, the incident was recorded as a breach of the Family Violence Intervention Order and the Police made arrangements to have Mr Cadby arrested. The report was false and you knew that. (Related Summary Charge 5 – Make False Report to Police).
Charge 3 – 9 March 2020
On 9 March 2020, you again attended the Werribee Police Station and reported what you said was a further breach of the Intervention Order. In support of this allegation, you produced screen shots of over 10 messages sent by ‘Bryce’ on 8 & 9 March 2020. The messages variously stated:[1]
i)“I know where you are and I’m coming for you watch out. your not safe and you belong to me now. you will do as i say or else your family and friends will pay Im going to slit your thought [sic.] then stab like u should of done that day. you deserve everything coming your way you’re an ungrateful whore”
ii)“Slut Whore Mentally Unstable Im going to kill you I’m going to slit your throat and stab you to death”
iii)“you better come back to me or everyone you love dies a slow and painful death”
iv)“Your where you belong in the hospital. no one believes you and now your my girl forever. U will do as I command. otherwise you die. i have put a location chip in you and has been active since the day i had you by the throat.”
[1] The messages are reproduced verbatim.
On this day you provided a further statement to the Police stating that you did not reply to these messages due to concerns that Mr Cadby would come to your house and carry out the threats.
The statement contained an acknowledgement that the statement was true and correct and that a person making a false statement is liable to the penalties of perjury. You signed the statement and acknowledged that it was true and correct knowing that it was false (Charge 3 – Perjury).
On 17 March 2020, Mr Cadby was again arrested and interviewed by Victoria Police at Pakenham Police Station. He denied the allegations that he had been messaging you and stated that he had abided by all conditions of the Family Violence Intervention Order. After reviewing the contents of his phone, Police became concerned that the messages may have been fabricated. Mr Cadby was released pending summons.
Charge 4 – 25 March 2020
On 25 March 2020, you again attended the Werribee Police Station and reported what you described as another breach of the Intervention Order. In support of this allegation, you produced a screenshot of a Facebook message apparently sent by ‘Bryce’ which stated as follows:
“Did you really think you could get away that easily. Well you were wrong I’m coming for you… I know your address… I’m going to slit your throat and watch you die a slow painful death… I know what I did was wrong… I raped you. Your a slut and a whore. Your no good for anything.”
You provided a fourth statement to Victoria Police officers in relation to the circumstances surrounding this message that you claimed to have received from Mr Cadby.
The statement contained an acknowledgement that the statement was true and correct and that a person making a false statement is liable to the penalties of perjury. You signed the statement and acknowledged that it was true and correct knowing that it was false (Charge 4 – Perjury).
Following this statement, an application to remand Mr Cadby was sent to Pakenham Police Station.
The following day, you consented to an E-Crime analysis of your mobile phone and initial analysis showed image files stored on the phone titled ‘Fake Texts’. Your phone was returned to you while Victoria Police awaited the result of call record analysis.
Charge 5 – 27 March 2020
On 27 March 2020, despite knowing that police were analysing your phone records, you attended the Werribee Police Station and reported what you said was a further breach of the Intervention Order. In support of this allegation, you produced a screenshot of text messages you said were sent by ‘Bryce’ which appeared to show photographs of your house and an image of a knife with the message, ‘murder weapon your not safe. I’ll have you. No one will love you like I loved you or believe you’.
You provided a fifth statement to Victoria Police officers in relation to the circumstances surrounding these messages that you claimed to have had received from Mr Cadby.
The statement contained an acknowledgement that the statement was true and correct and that a person making a false statement is liable to the penalties of perjury. You signed the statement and acknowledged that it was true and correct knowing that it was false (Charge 5 – Perjury).
Admission, Arrest & Interview
On 1 April 2020, you phoned Victoria Police and admitted that the messages you had previously claimed to have received from Mr Cadby had, in fact, been fabricated by you. Analysis of your mobile telephone records confirmed that there had been no contact between you and Mr Cadby except an unanswered call made to you by him on 17 March 2020. All police investigations concerning Mr Cadby then ceased.
You were arrested at Dandenong Police Station on 8 April 2020 and interviewed by Victoria Police officers. In your record of interview, you made a number of admissions and denials about your offending conduct, including that:
i)You had faked messages from Bryce but claimed this was because he had committed an offence against you, and you thought that if there were breaches to the intervention order it would be taken more seriously;
ii)You recalled making and signing statements and having a Police Officer explain to you that making a false statement could make you liable to the penalties of perjury.
iii)You faked the messages using the ‘Fake Messaging’ application but said that the substance of the messages was true;
iv)Mr Cadby did not breach the intervention order;
v)Mr Cadby did not push you down the stairs; and
vi)The bruising on your neck was partly from an incident of self-harm but some of the marks were from Mr Cadby’s hands.
Personal circumstances and mental health
28.I turn now to outline your personal background and history. You were born in Victoria in October 2000 and were 19 years old at the date of the offending. You are now 21 years of age. You have no prior criminal history.
29.You were an only child and lived with your parents until they separated when you were 10. Your father was controlling. Your mother re-partnered and you remain close to your step-father who provided a reference for you and attended the court hearing to support you.[2]
[2] Letter (undated) from Cameron Bacon (exhibit D5).
30.After leaving school part way through Year 12 in 2018, you worked as a stable hand which you continue to do. This work has enabled you to pursue your love of horses. The court received a reference from your employer which speaks positively of your work ethic.[3]
[3] Letter dated 23 August 2022 from Alicia Palmer (exhibit D6).
31.Your counsel relied on two detailed reports prepared by Dr Nina Zimmerman.[4] Dr Zimmerman is a forensic psychiatrist and has been a Fellow of the Royal Australian and New Zealand College of Psychiatry since 2002. She worked in a consulting capacity at Forensicare in acute and rehabilitation settings in prisons and at Thomas Embling Hospital between 2002 and 2014. Dr Zimmerman’s reports were of considerable assistance to the court.
[4] Psychiatric Report of Dr Zimmerman dated 25 June 2021 (exhibit D1) and Psychiatric Report of Dr Zimmerman dated 29 March 2022 (exhibit D2).
32.Dr Zimmerman’s first report drew on both what you told her when she assessed you on 26 May 2021 and the records of your extensive history of treatment at a number of mental health services.[5]
[5] For example, ex D1 at [21]-[22], [38]-51], [94]. The court was provided with some of those records – see exhibit D4.
33.Dr Zimmerman records in detail your unremarkable childhood. You told her that your father was a ‘controlling narcissist’ who you were never able to please. Although you did well in primary school, you struggled in high school and were asked to leave part way through year 12 in 2018 because you were not coping and self-harming.
34.Dr Zimmerman details your psychiatric history dating back to a diagnosis of anxiety when you were 13 for which you were prescribed the antidepressant, fluoxetine. You self-harmed for the first time at age seventeen and were admitted to the Banksia unit, the Royal Children’s Hospital mental health unit for adolescents. In total you have had four inpatient admissions for mental ill health.
35.Dr Zimmerman reports of you hearing voices and continuing to self-harm by cutting yourself. You have taken overdoses. You have a history of auditory and visual hallucinations and delusional themes that a perpetrator of sexual violence implanted a chip in you.
36.You were case managed by Orygen Youth mental health service from 26 April 2018 until 20 September 2019. You were discharged and referred to another service, Headspace. You told Dr Zimmerman that it ‘didn’t feel great’ being discharged from Orygen. On 22 October 2019, you self-presented to the Emergency Crisis Assessment and Treatment Team reporting that you had been sexually assaulted on 8 October 2019.
37.You tried to hang yourself and took an overdose in December 2019 and were admitted to St Vincent’s private psychiatric ward for about one and a half weeks. You also started dating Bryce Cadby at about this time having talked to him on-line for six months. This was your first sexual relationship.
38.Dr Zimmerman reports that in January/February 2020, you ceased taking your prescribed medications and felt there was no-one in your life. You also made suicide attempts. Your offending commenced on 24 February 2020 in the circumstances I have earlier described.
39.Dr Zimmerman concludes that you demonstrate ‘a pattern of instability of interpersonal relationships, self-image and affects associated with marked impulsivity and it is my opinion that Ms Bacon suffers from borderline personality disorder …’.[6] She opines thatthe associated features of the disorder in your case include psychotic-like symptoms (auditory and visual hallucinations) present at times of stress’. Dr Zimmerman adds that your experience of the reality of situations can be skewed. She gives as an example that your response to a boyfriend ending a relationship can produce an intense rage that is ‘atypical and directly related to [your] personality disorder’.[7]
[6] Ex D1 at [104], emphasis in original.
[7] Ex D1 at [107].
40.Dr Zimmerman is of the view that ‘there is a direct relationship between [your] offending and [your] diagnosis of borderline personality disorder’ and that your disorder ‘was present over the period of the offending’.[8] She considers that your offending consisted of ‘fabricated and increasingly elaborate allegations made in February and March 2020’ but the pattern of allegations of sexual assault and an increasingly disturbed mental state with self-harming and suicide attempts began in October 2019’.[9] Dr Zimmerman identifies that the event that triggered the deterioration in your mental state and your dysregulated emotions and behaviour was your discharge from Orygen youth mental service in September 2019.
[8] Ex D1 at [109].
[9] Ex D1 at [110].
41.Dr Zimmerman opines that there is no doubting the veracity of your distress over this period and she concludes as follows:
I believe that Ms Bacon engaged in the offending behaviour over a period when she was dysregulated, frequently self-harming and lashing out against a partner who had in some way aggravated her hypersensitivity to feeling neglected. Her personality style impacted on her ability to think clearly about the repercussions of her behaviour as her ex became a symbol for all who had abandoned or mistreated her over her life.[10]
[10] Ex D1 at [114].
42.Turning to an assessment of your risk of re-offending, Dr Zimmerman notes that you have a history of engaging well with sustained case management care and that, as at May of 2021, you were well engaged with an adult area mental health service.
43.Finally, Dr Zimmerman makes the following observations in her first report about your future treatment:
I believe that it will be useful for Ms Bacon to engage in a therapy such as Cognitive Analytic Therapy or Dialectical Behaviour Therapy, both designed to assist patients with borderline personality disorder to identify and understand maladaptive behaviours….However, such work needs to be undertaken at a time when the patient is keen to engage – it may be that Ms Bacon is not yet ready to embark on formal therapy but can continue to benefit from supportive case-management.[11]
[11] Ex D1 at [120].
44.On 2 March 2022, after your case had been removed to this Court, you were again assessed by Dr Zimmerman. Dr Zimmerman prepared a further report for the court dated 29 March 2022.
45.Dr Zimmerman states in this later report that she has received no information or made any further assessment to change her previously stated belief of the ‘direct relationship between [your] offending and [your] diagnosis of borderline personality disorder’.[12]
[12] Ex D2 at [127].
46.Dr Zimmerman opines that your mental state was less stable when she met you in March 2022 than had been the case in 2021.[13] She states that you remained compliant with your medication and are on a wait-list to see a psychologist.
[13] Ex D2 at [136].
47.Dr Zimmerman remains of the view that you are a low risk of acting in a manner harmful to others for the reasons explained in her first report.[14] She also remains of the view that a term of imprisonment would weigh more heavily on you than on an individual without borderline personality disorder.[15]
[14] Ex D2 at [139].
[15] Ex D2 at [142].
48.Dr Zimmerman also remains of the view that specialised therapy by a psychologist is advisable but that you continue to express ambivalence about the usefulness of working with a psychologist. She considers that this may be due to your youth and that any treatment should focus on practical day-to-day support and engagement until you are older.[16]
[16] Ex D2 at [147]-[148].
49.Finally, reference should be made to a report dated 26 August 2022 from the Wyndham Community Mental Health Team.[17] The report is signed by Ms Poonam Arora-Kapila your case manager, who attended the court hearing and gave brief evidence at the request of the court. The report explains that you have been a voluntary client of the Service since April 2020. You have been reliable at keeping appointments and have a good compliance record with medication.
[17] Ex D3.
50.You have a history of self-harming and your most recent suicide attempt was in August 2022. The report notes that you are ‘willing to work with a psychologist for emotional regulation’ and you are awaiting psychology sessions. You have the long term goal of becoming a teacher after completing a Diploma of Education.
Objective Gravity of your offending
51.Section 5(2)(c) of the Sentencing Act 1991 requires the court to have regard to ‘the nature and gravity of the offence’ for which you are to be sentenced.
52.The offence of perjury is inherently serious as it ‘strikes at the heart of the criminal justice system’. Considerations of deterrence are paramount in sentencing and offenders can normally expect to be sentenced to custody. Perjury undermines the whole basis of the administration of justice and is usually not easily detected.[18]
[18] Morgan (1995) A Crim R 518 at 525.
53.Yours is a grave and serious example of perjury. You made not one but five false statements to police over a period of one month. On each occasion the statement you signed contained an acknowledgement that the statement was true and correct and that a person making a false statement is liable to the penalties for perjury.
54.You created a number of false messages which you told police were sent to you on Facebook Messenger by Mr Cadby. There was clearly a degree of planning associated with the creation of these messages. This was not a case of perjury where a witness in a court case spontaneously tells a lie in desperation in an attempt to extricate themselves from a difficult situation.
Moral culpability
55.Section 5(2)(d) of the Sentencing Act requires the court to have regard to ‘the offender's culpability and degree of responsibility for the offence’.
56.It is well established that an offender’s culpability may be diminished due to the effect of a mental disorder from which they suffer.[19] In Verdins v The Queen,[20] the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.
[19] For the purposes of this principle, it is now accepted that borderline personality disorder falls under the definition of ‘impaired mental functioning’: Brown v The Queen (2020) 62 VR 491.
[20] (2007) 16 VR 269 at [32].
57.In such a situation, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’. The impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[21]
[21] Romero v The Queen [2011] VSCA 258 at [13] (Redlich JA).
58.Where the principles in Verdins apply, not only will the moral culpability of the offender be reduced, but the mental health condition may have a bearing on the kind of sentence that is imposed.[22] Further, depending on the nature and severity of the symptoms exhibited by the offender, both specific and general deterrence may need to be moderated or even eliminated as sentencing considerations.[23]
[22] Verdins (2007) 16 VR 269 at [32], limb 2.
[23] Verdins (2007) 16 VR 269 at [32], limbs 3 and 4.
59.The Verdins principles are and should be regarded as ‘exceptional’.[24] It is for the offender to establish on the balance of probabilities the facts that enliven the Verdins principles. This will normally be done by calling expert evidence which must be ‘rigorously scrutinised’.[25]
[24] Charles v R [2011] VSCA 399 at [162].
[25] Brown (2020) 62 VR 491 at [6].
60.I discuss the application of these principles below.
Impact of your offending
61.Section 5(2)(daa) of the Sentencing Act 1991 (Vic.) requires a sentencing court to have regard to ‘the impact of the offence on any victim of the offence’.
62.I consider that there are two ‘victims’ of your perjury. The first and more obvious victim is your former partner Bryce Cadby. Mr Cadby, who has not made a victim impact statement, was subjected to an unwarranted police investigation. He was arrested twice and made the subject of a family violence intervention order. It was then alleged that he had breached the Order by sending violent messages to you. Although he was not charged with a criminal offence and placed on trial, there can be no doubt that his experience must have been stressful and a course of anxiety for him.
63.The second and less obvious victim of your offending is the broader community. The community is a victim in at least one way and possibly two. The first way in which the community is affected is through the diversion of limited police resources from the investigation of actual crimes. Considerable resources were deployed to respond to your false complaints. The resources were not available to be deployed for other purposes.
64.The second way in which the community may be affected by offending such as yours is through the possibility that police may hesitate to respond speedily to allegations of family violence as the community expects them to. If police doubt the veracity of complaints of family violence and feel the need to investigate such complaints thoroughly before seeking interim intervention orders, the protective intent of the legislation[26] will be undermined. There is no evidence before the court that this has happened so I don’t take it into account as part of my sentencing of you.
[26] Family Violence Protection Act 2008 (Vic.), s 53.
Current sentencing practices
65.The court was referred by the prosecution to a number of sentencing decisions involving perjury.[27] I have considered each of these cases but derive little assistance from them because the unusual facts of the present case set it apart from the ‘normal’ perjury case.
[27] R v Patniyot [2000] VSCA 55; DPP v Toma [2007] VSCA 315; Boyton v R [2016] VSCA 13 and DPP v Shaing [2021] VCC 336.
Submissions
66.Your counsel accepted that yours is serious offending and that deterrence is generally the paramount sentencing consideration in cases of perjury. However, after referring to your early plea of guilty, your youth, the low risk of you re-offending and the medical and other evidence before the court, he submitted that ‘in the unusual circumstances of this offending’, the Court should ‘give consideration to imposing a Community Correction Order with mental health treatment conditions’.[28]
[28] Submission on Plea dated 2 August 2022 at [56].
67.The prosecution accepted that it is ‘open to the Court to find that a Community Correction Order is an available sentencing disposition’ in the circumstances of your case.[29]
[29] Prosecution Submissions for Plea Hearing dated 26 August 2022 at [1].
Assessment of suitability
68.At the request of the court, you were assessed on 31 August 2022 by Corrections Victoria pursuant to s 8B of the Sentencing Act 1991. A report of the assessment dated 31 August 2022 is before the court.
69.Corrections Victoria assessed you as a medium risk of re-offending and assessed you as suitable for a Community Correction Order with the following conditions:
i)Treatment and rehabilitation – mental health; and
ii)Supervision.
70.You were also assessed by the Court’s Mental Health Advice and Response Service (MHARS). The MHARS report of that assessment is dated 8 September 2022. The assessor had available to them the two reports by Dr Zimmerman.
71.The MHARS report describes you as a person with reasonable insight into your mental health and the need for ongoing treatment. The assessment endorsed the recommendation that a mental health condition be mandated in any Community Correction Order that the court makes. No barriers to your effective management by the Community Corrections Service were identified.
Analysis and conclusion
72.Under the Sentencing Act, sentencing an offender may seek to achieve a number of purposes including punishment, deterring both the offender and others from committing similar offences and promoting the rehabilitation of the offender.[30] As has been observed on more than one occasion by the High Court, these various purposes may pull in opposite directions – some requiring a harsher penalty and some a more lenient or merciful one.[31] Cases such as yours exemplify this dilemma. Your offending was serious but your reduced moral culpability and your youth must be considered.
[30] The only purposes for which a sentence may be imposed are those listed in s 5(1).
[31] See, for example, Veen v The Queen (No 2) (1988) 164 CLR 465 at [13].
73.Having regard to the objective seriousness of your offending and the impact it must have had on Mr Cadby, I consider that there is a role in your case for punishment. However, the court is required to punish you only ‘to an extent and in a manner which is just in all of the circumstances’.[32]
[32] Sentencing Act 1991, s 5(2)(a).
74.Based on the cogent evidence contained in the reports of Dr Zimmerman, the Verdins principles, limbs 1-4 are enlivened in your case. This means that general and specific deterrence, both of which would ordinarily be prominent sentencing considerations in a case of intentional perjury, are substantially moderated as sentencing considerations in your case.
75.I consider that Verdins limbs 5 and 6 are also relevant. In relation to limb 5, it is abundantly clear from the report of Dr Zimmerman that, due to your symptoms at the current time, a ‘term of imprisonment would weigh more heavily on [you] than on an individual without borderline personality disorder’.[33]
[33] Ex D1 at [108].
76.I accept in relation to limb 6 that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. Dr Zimmerman opines that any interruption to your current treatment ‘is likely to be associated with a deterioration in [your] mental state’.[34]
[34] Ex D2 at [143].
77.These are factors that mitigate punishment.
Prospects of Rehabilitation
78.Dr Zimmerman reported in March 2022 that you have a supportive family network and a stable network of professionals working with you. As noted, your current service provider describes you as compliant and reliable.
79.You have no criminal record and no alcohol or drug abuse concerns and you have stable part time employment.
80.I note that, in addition to volunteering to police in April 2020 that you had made false reports to them, you accepted full responsibility for your offending when you were assessed for a Community Correction Order on 31 August 2022.[35] The author of the report stated that you presented as remorseful for your actions. You told the assessor that you felt ‘like the worst person in the world’ for your offending.
[35] Community Correction Order Assessment Outcome Report dated 31 August 2022, p 2.
81.You are currently 21 years old, and were only 19 years old at the time of this offending. The law provides that one purpose of sentencing is to facilitate the rehabilitation of the offender[36] and the authorities make clear that rehabilitation of youthful offenders is a very important purpose in sentencing.[37]
[36] Sentencing Act 1991, s 5(1)(c).
[37] Azzopardi v The Queen [2011] VSCA 372.
82.According to Dr Zimmerman, because the features of your disorder that contributed to your offending, (such as intolerance of stress and perceived neglect) remain, there is an ongoing risk that you will again behave in a dysregulated fashion in times of stress. This is most likely to manifest in self harm although there is a low risk that you may act in a manner harmful to others. The reason that the risk is low, according to Dr Zimmerman, is that you have no history of other offending and no history of disinhibiting substance misuse.
83.Further, the consequences of your current offending ‘are likely to act as protective factors when considering reoffending’.[38] Dr Zimmerman considers that your engagement in supportive case-management and treatment with a low-dose mood stabilising agent ‘will further reduce the likelihood of reoffending’. She notes that, because of your youth, the structure of further training or work will be very beneficial.
[38] Ex D1 at [119].
84.There has been a considerable delay in finalising your case through no fault of yours. Your offending occurred in early 2020. Two and a half years later there is no evidence of any further offending by you and all of the reports before the court suggest you are compliant with your treatment. I take this period into account noting that the court should not do anything that would jeopardise your efforts by way of rehabilitation.
85.In light of all of the above, I consider that, provided you receive the treatment that you need, your prospects of rehabilitation are good.
86.It is well established that a CCO is a punitive sentencing option that may be appropriate, even for relatively serious offences. A CCO can be imposed to rehabilitate and punish simultaneously. These principles were clearly set out by the Court of Appeal in the authority of Boulton.[39] Contravention of any condition of a CCO is itself an offence and also carries with it the prospect that an offender will be resentenced on the original offence.
[39] Boulton v The Queen (2014) 46 VR 308.
87.I have regard to s 5(4C) of the Sentencing Act 1991, which provides that a court must not impose a sentence that involves the confinement of an offender unless it considers that purpose or purposes for which a sentence is imposed cannot be met by a CCO.
88.I consider that all of the relevant sentencing purposes in your case including just punishment, can be met by a CCO.
89.I consider such a sentence balances the punitive aspects of the sentence with the need to promote and support your ongoing rehabilitation under supervision. I have fashioned the conditions of the order, and its duration, to best achieve this outcome, noting that community protection is enhanced when the long-term rehabilitation of offenders is achieved.[40]
[40] See DPP v Malikovski [2010] VSCA 130 at [51] (Maxwell P).
90.In the circumstances, and taking account of all relevant sentencing considerations, I consider that the most appropriate sentence in your case is a community correction order of 18 months’ duration with conviction. In addition to the standard conditions, there will be three special conditions. The first is that you will be required to engage in treatment for your borderline personality disorder to reduce your risk of re-offending. The second is that you will be supervised by Corrections Victoria in light of the assessment of your prospects of re-offending. Thirdly, the court will monitor your progress through judicial supervision.
91.In relation to your mental health treatment, I am concerned about your apparent ambivalence to engage in the treatment with a psychologist proposed by Dr Zimmerman although I note that your case worker suggests that you may now be more inclined to engage with a psychologist. It has not been suggested by your counsel that the treatment Dr Zimmerman considers necessary is in any way inappropriate. However, it is not appropriate for this court to mandate such treatment. What I propose to do is request that copies of the reports of Dr Zimmerman and these sentencing remarks be provided to Corrections Victoria to inform its oversight of the order and especially the treatment and rehabilitation condition. I will monitor the progress of your treatment through the reports provided to the court to inform its judicial supervision of the order.
Sentence
92.Accordingly, balancing these matters whilst having regard to the maximum penalty for each offence, you are convicted on charges 1 – 5 (perjury) and on summary charge 5 (making false report to police) and sentenced to an 18 month community correction order subject to the following conditions:
· you are to be supervised for the duration of the order;
· you are to be assessed for mental health treatment and if assessed as suitable, you are to complete all mental health treatment and counselling programs as recommended; and
· that you be assessed for and complete all programs recommended by Corrections that are directed at reducing the risk of your offending.
93.I intend, at least initially, that your compliance with the community correction order be subject to judicial monitoring by me. I direct that you appear before me for judicial monitoring on Monday 12 December 2022 at 9.15am.
In addition to the conditions I have imposed there are several standard conditions. 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 to the nearest community corrections office. You are required to advise your supervising corrections office of any change of address where you are living or 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.
95.You have given me confirmation that you understand and agree to these conditions.
In my view this order presents you with a chance to continue to change your life in a positive fashion, provided you take up that opportunity and the supports that will be made available. The order can be breached if you do not comply with either the conditions of the order or if you re-offend whilst it is in place. If you do, you will have to come back in front of me for breaching the order. I may have to resentence you for this offending, and I may have to sentence you for breaching the order.
97.Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a term of 6 months’ imprisonment with an 18 month CCO to follow.
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