Director of Public Prosecutions v Barahona Mendez

[2023] VCC 1310

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01857

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUGLAS BARAHONA MENDEZ

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF SENTENCE:	23 May 2023
CASE MAY BE CITED AS:	DPP v Barahona Mendez
MEDIUM NEUTRAL CITATION:	[2023] VCC 1310

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Office of Public Prosecutions
For the Offender	Mr K. Boden

HIS HONOUR:

1Duglas Barahona Mendez, you have pleaded guilty to one charge of attempting to pervert the course of justice.  That crime carries a maximum penalty of 25 years' imprisonment.

2You are now 29 years of age.  You pleaded guilty at the earliest opportunity and I accept that that plea is accompanied by appropriate remorse.  You must also get the utilitarian benefit of that plea of guilty and in this situation your admissions have certainly assisted the Crown case, and had you defended the matter there is a possibility that you would have been successful.  I take all those matters into account.  I also take into account the fact that this plea is made still during the time of Worboyes and that means that a significant sentencing discount should be given and an observable discount should be given.  I take that into account as well.

3You do have prior convictions and indeed have been imprisoned before.  As I said to you in the course of the plea, I am somewhat suspicious about all this, but the fact of the matter is you do not have prior convictions for dishonesty and they all appear to relate to effectively some form of violence or driving in extraordinarily erratic ways whilst under the influence of alcohol.  Those matters are not for me, and you are not to be punished for them twice, I am looking at dishonesty.

4The circumstances of the offending are that on 9 December 2019 your licence was cancelled for a period of five years. 

5On 30 December 2019, just three weeks later, you were intercepted by police driving in an unregistered vehicle, clearly having a licence disqualification in place yourself, and you had, it turns out, a breath reading of 0.158 grams of alcohol.  You were clearly intoxicated – that is within three weeks of the earlier hearing.  In my view, and it does not matter what the outcome was and I am aware of that, but at that period of time any legal advice to you would have been that you were in danger, at the very least, of being significantly incarcerated.

6In any event, on 26 April 2022, you appeared before the Broadmeadows Magistrates Court and pleaded guilty to those offences. 

7During the plea submissions your counsel, for reasons I do not quite understand, handed up a number of references on your behalf.  Three of those were unsigned letters purporting to speak highly of your character and one was a signed letter.  Reliance was placed on those statements, and as I understand it – whether there is transcript of this on it, I do not know – that your counsel using somewhat extensively during the course of the plea. 

8The magistrate said that she had seen the references but the fact that they were not signed caused her concerns and indeed there was a letterhead where a signature should have been.  She stood the matter down so police could make enquiries.  Those enquiries revealed, as I now understand the full situation, that Mr Marsh had been asked to provide a reference and was told one would be prepared and sent to him.  Mr Turnley was not and Mr Thomas we do not know.  These people are all known to you.  Obviously that gives rise to the charge of attempt to pervert.  The Crown accept that the documents were not created with the intention of perverting the course of justice but were ultimately used in that way and I accept that as a proposition.

9Whilst you have ADHD, I accept that that is the case and that may well affect your sense of judgment.  In my view it does not give rise to the principles involved in Verdins but simply, when the situation arose here whereas you said, and it cannot really be disputed, that you ran out of time in terms of having them signed, that you just did not appreciate the significance of not having that done.  Whilst, as I say, I am suspicious of sentence on that basis.

10In all those circumstances, and I am well aware of many other cases of attempt to pervert, and it can range from all sorts of levels of seriousness, it is my view, in the overall situation here, that the level of seriousness is at the lowest end and I sentence on that basis. 

11The crime itself still remains serious, clearly there has to be general deterrence.  In your situation specific deterrence I think this will be sufficient for.  Denunciation I am not so sure about.  Appropriate punishment was the real difference between the defence submissions and the Crown submissions.

12I have had you assessed for a community corrections order and you have been found to be acceptable with certain conditions.

13I have read the report of Mr Campbell, a general psychologist, that was tendered on your behalf, and by and large accept what he has to say and that you do have significant mental health issues and that you do have significant alcohol issues.  Alcohol had nothing to do with the offending that is before me, and whilst I consider that your ADHD may have played a part in the overall circumstances, it is not such, as I have already indicated, to significantly at least, reduce to principles insofar as Limb 1 is concerned of moral culpability.

14The other matters in that report I accept.  I accept the history that is provided by him and as outlined by your counsel in that, as I have said, you are 29 years of age, you were 28 when this happened, you are still relatively young.  You came to Australia from El Salvador when you were a small child, your parents separated when you were about three years of age.  You had significant difficulties growing up – the report of Mr Campbell has been tendered, I do believe, and anyone with a genuine interest can see the matters that are referred to in there.  I do not think there is any need for me here to go through them in any detail.

15Your father passed away when you were four years of age.  I accept that up until this time, at least, you had a good work history.  You completed high school.  You worked in demolition work, landscaping and labouring.  You have worked as a barber, including your own business, which, as I understand it, certainly up until recent times, had still been going.  You have, as I said, worked in construction.  You married last year, your wife and also your referee are both in court and prepared to give evidence on your behalf.  I accept that you do have that family support.

16In all the circumstances, it is my view that the risk of you re-offending in this way is low.  The risk of you re-offending, insofar as your psychological difficulties are concerned, is probably fairly high, and that will, I suspect, relate to your ability to control alcohol.  But as I say, this offending is unrelated to alcohol and it is not my position to be taking on the role of a general psychologist.

17In any event, when I take all those matters into account, it is a situation where I think a community corrections order is the appropriate disposition.  As I have indicated to counsel, that is what I am going to do.  Accordingly, if you agree, and you have been assessed and accepted, if you agree it will be a community corrections order, it will be 120 work hours, it will be for two years, it will be with conviction, and there will be the supervision and the mental health treatment.  Alcohol was, as I indicated before, suggested, but I do not think that is part and parcel of what I am here for today.

18Any hours spent in mental health can be regarded as hours worked under the 120 hours - I think I have indicated that will be with conviction and for two years.  There are no other orders I have to make if he signs that.

19MR TAMBURRO:  Just as a formality, Your Honour, to withdraw Summary Charge 8, the commit indictable offence on bail ‑ ‑ ‑ 

20HIS HONOUR:  Yes, sorry, thanks for that. 

21MR TAMBURRO:  Thank you, Your Honour.  That's it from the prosecution.

22HIS HONOUR:  Insofar as s6AAA is concerned, I don’t think I do it, do I?

23MR TAMBURRO:  Not obligated in these ‑ ‑ ‑ 

24HIS HONOUR:  No.

25MR TAMBURRO:  No.

26HIS HONOUR:  It just would have been a bigger CCO.

27MR TAMBURRO:  Yes.

28HIS HONOUR:  All right, so have you prepared that for me?  If you want to go down with my associate, if you wouldn't mind, Mr Boden, while your client signs this.

29MR BODEN:  Yes, Your Honour.

30HIS HONOUR:  When I revise, I might go through the detail a little bit – in a little bit more.

31MR TAMBURRO:  Yes, Your Honour.  I should also note as well, I actually have just double checked 6AAA, it's a community corrections order of two years or more, the obligation kicks in.

32HIS HONOUR:  Okay, 6AAA will make it three years and 200 hours.

33MR TAMBURRO:  As the court pleases.

34HIS HONOUR:  So do you understand what you just signed?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  If you breach it and get brought back before me for any sort of dishonesty, significant dishonesty, I will put you in.  All right?  Understand each other?

37OFFENDER:  Thank you, Your Honour.

38HIS HONOUR:  Subject to what your counsel might have to say at the time.  All right, thanks gentlemen.  Can I also indicate, it was well done, that plea, I enjoyed the way it was put and argued and, yes, appreciate it.

39MR TAMBURRO:  Thank you, Your Honour.

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