Director of Public Prosecutions v Buckley
[2022] VCC 1366
•17 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-01927
CR-21-02550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE BUCKLEY |
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JUDGE: | HER HONOUR JUDGE QUINN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2022 | |
DATE OF SENTENCE: | 17 August 2022 | |
CASE MAY BE CITED AS: | DPP v Buckley | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1366 | |
REASONS FOR SENTENCE
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Catchwords: Attempt to pervert the course of justice; Persistent contravention of a Family Violence Order; Attempt to contact a protected person under a
Family Violence Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Guesdon | OPP |
| For the Accused | Ms N. Valos | Valos Black & Associates |
HER HONOUR:
1
Jake Buckley, you have pleaded guilty to one charge of attempting to pervert the course of justice and four charges of persistent contravention of a Family Violence Order. You have also agreed to have dealt with by me and pleaded guilty to two summary charges of attempting to contact a protected person under a
Family Violence Order.
2On 12 July, I conducted a sentence indication hearing, though it was necessary for that to be adjourned so that details regarding your time in custody could be clarified. The matter returned before me on 12 August and immediately after that indication was given, you pleaded guilty to these charges and your counsel put a plea on your behalf.
3The maximum penalty for the first charge is 25 years and for Charges 2, 3, 4 and 5 is five years or 600 penalty units.
4The circumstances of your offending are set out in the prosecution opening for sentence indication dated 20 June 2022 (Exhibit A) and can be summarised as follows. You commenced a relationship with Angela Duggan[1] in March 2020, soon after your release from custody. In the course of that relationship, you were at times jealous, controlling and violent. Following incidents in June and July 2020, Ms Duggan went to the police. You were arrested and remanded on 23 July 2020. You were charged with various offences, including assault, causing injury, robbery, false imprisonment, stalking, using a carriage service to harass, and damaging property. These are collectively called the June/July offences.
[1]A pseudonym.
5The following day, a final Family Violence Intervention Order (FVIO) was made for a period of 10 years. The FVIO included conditions prohibiting you or you engaging someone else to contact or communicate with Ms Duggan. Whilst on remand, you were able to make phone calls from prison on the Arunta telephone system (PTS). Prisoners are only able to make calls to numbers that are approved and registered on the PTS account and all calls are recorded. Your mother was on your PTS account, as well as that of another prisoner and you contacted your mother via those two avenues. You also registered a phone number belonging to Ms Duggan on your PTS account, indicating that that account was held by a false name.
6
Police obtained recordings of your Arunta calls and identified a large number of calls between 31 July 2020 and 17 November 2020 that showed you contacting
Ms Duggan and directing your mother to do so. The records show you persistently breached the FVIO by (a), directly contacting or communicating with Ms Duggan
65 times between 1 August and 17 November and (b), directing your mother to contact or communicate with Ms Duggan, which she did 187 times. On 50 of those occasions your mother communicated your messages and instructions to
Ms Duggan. Charges 2-5 are drafted to reflect a period of approximately a month; for August Charge 2, September Charge 3, October Charge 4 and November Charge 5 over the relevant time.
7In your calls with your mother, you used false names to refer to Ms Duggan and on occasions when your mother used her name, that is, Ms Duggan’s name, you would correct and admonish her. On 72 occasions between 3 August and 17 November, in the course of conversations, you or your mother on your behalf, applied pressure on Ms Duggan to retract her statements that she had made to police or to attend court and vary the FVIO. You told her if she did as you instructed you had a chance of being released.
8Your conduct posed a real risk and/or possibility of interfering with the administration of justice, as Ms Duggan was pressured (1), to attend court to vary an order on false pretences and (2), to retract statements that would undermine the prosecution case against you and their ability to secure a conviction. That is the conduct relating to Charge 1, attempt to pervert the course of justice.
9Police became aware of the relevant Arunta calls in October 2020 and you were charged for these matters on 4 December 2020. In respect of the summary matters, on 14 December and 27 January, another prisoner was caught attempting to smuggle out letters addressed to Ms Duggan on your behalf.
10As to your personal circumstances, I received a psychiatric report from Dr Nina Zimmerman dated 28 June 2021. I also received a number of CISP reports from your current case manager and counsellor, prepared as part of that program since you were bailed on 2 December 2021. I take all that material into account.
11You are currently aged 29. Your parents separated when you were young. Your father struggled with alcohol issues and died in 2004 for asbestosis. You continue to have a close and supportive relationship with your mother and your sister. The latter has the care of your child Kai. You completed Year 11 at school and then commenced a mechanics apprenticeship which you did for about 30 months though did not complete. You have worked in various jobs since, though your ability to have constant and consistent work has been negatively impacted by your drug use. I was informed that you have been employed since February as a concreter.
12You started using cannabis when 15, then progressed to MDMA and ice at around the time of your other sister's death in 2012. Your drug use has been consistent since then, with the exception of a two-year period in 2013-14. During that period, you were in a relationship and had stable employment as a spray painter. At the end of that relationship, you returned to drug use. Your son Kai was born in 2014 as the result of a short-term relationship with his mother and, as noted, Kai currently lives with your sister, though you maintain frequent contact with him.
13
You have a significant criminal history, most relevantly since 2016. You have been before the court on five occasions for numerous driving, dishonesty and violent offences. Of significance, you were previously convicted of breaching a
Family Violence Order in 2016. You have been sentenced to Community Corrections Order, as well as having served time in custody, your first period of imprisonment being imposed in December 2016. You have not successfully completed either of the Community Corrections Orders that have been imposed.
14In January 2019, you were sentenced for a number of dishonesty, firearm and bribing offences to a period of two years' imprisonment with a non-parole period of 10 months. That sentence has now expired and I was informed that you do not currently owe any time to the Adult Parole Board.
15
In respect of the June/July offences, I was provided with the relevant summary of that offending to put these matters in context. You were before the
Magistrates' Court on 26 April 2022 and were sentenced to 12 months' imprisonment. PSD was declared as 505 days. I note that there was, therefore, some dead time that you served. You were bailed with the condition to comply with CISP on 2 December 2021 and have been on bail in the community since then.
16The reports from your case manager and counsellor at CISP have been provided, relating to the period from December 2021 to date. These reports have consistently referred to the positive progress you have made, particularly in addressing your drug use through counselling sessions. In the most recent report, your counsellor, consistent with her other reports, notes you have remain motivated in maintaining abstinence from substance abuse and have continued to focus on establishing a positive future for yourself, free of substance use and further contact with the justice system.
17Given that you have been engaged in AOD counselling for eight months, maintained abstinence during that time, maintained employment, are stable and compliant on your medication, have stable accommodation and have commenced seeing a psychologist, a review of your treatment needs will occur. It is apparent you have made the initial progress. Now the challenge for you will be to maintain it. You offered to plead guilty to the family violence matters at the conclusion of the committal. I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit. This is particularly so within the COVID situation and the impact that has had on the administration of criminal justice in this State. I accept your plea is indicative of some remorse.
18It was submitted on your behalf that, with appropriate supports, your prospects for rehabilitation should be viewed as positive. I am more cautious about your prospects, given your criminal history and drug use, though I accept that the following factors all go well for your rehabilitation; (1), your plea of guilty (2), your positive engagement and progress with CISP over eight months and the services they provided, including AOD counselling (3), the support of your mother and sister and (4), that you have full-time employment. As long as you are able to utilise that support that you need and remain drug free, I view your rehabilitation prospects as good.
19The offence of attempting to pervert the course of justice strikes at the heart of the justice system. The maximum penalty of 25 years is reflective of the seriousness with which Parliament regards this kind of offending, though it is encompassed by a wide variety of conduct. You were facing serious charges relating to your previous partner. You engaged in persistent conduct to try to ensure those charges did not proceed and in breach of court orders designed to protect her and ensure you did not contact her.
20
Although your conduct did not involve physical threats or abuse, Ms Duggan was overwhelmed by your persistent conduct. Your conduct was not spontaneous but involved planning, subterfuge and the involvement of a third party, your mother. You actively persisted with the conduct over a period of time of about
three-and-a-half months. Your conduct was such that the sentencing considerations of general deterrence, denunciation and just punishment are important. Further, your criminal history and drug use is such that specific deterrence is also a relevant consideration. These features must be balanced against matters in your favour, particularly the progress you have made towards your rehabilitation.
21The prosecution submitted that a disposition involving an immediate term of imprisonment was required. At the sentence indication hearing, I was satisfied it would not be necessary for you to serve an immediate term of imprisonment. As the parties are aware, that indication was given, taken into account amongst other matters. Renzella kind of considerations, particularly relating to the dead time you spent in custody referred to in these reasons. Also relevant was the conditions under which you served that period in custody, being under COVID restrictions. I had you assessed by Corrections as to your suitability for a Community Correction Order and received a favourable report. I propose to sentence you in respect of each charge as follows.
22
You are convicted and sentenced in respect of each charge to a
Community Correction Order for a period of two years. I note in the Corrections assessment that it is indicated that it had not been possible to link your drug use with this offending. I will include a condition regarding drug treatment and rehabilitation and leave it to Corrections to determine whether further assistance is needed after they have contacted your counsellor. Therefore, the conditions will be those recommended by Corrections in addition to a condition for drug treatment and rehabilitation. There is a condition relating to programs to reduce reoffending. There is a supervision condition. I will also put in a judicial monitoring condition. The matter will come back before me in about six months' time.
23The purpose of that, Mr Buckley, is that I will just ensure that things are progressing. Hopefully, they will still be progressing as they have been and then you will not be required to attend court again if I have received a positive report. I will get a date from my associate as to six months' time when we come back to court.
24ASSOCIATE: Your Honour, six months makes it to January.
25HER HONOUR: All right, we'll make it 1 February. Sorry, 2 February. Wednesday, 2 February at 9.30.
26OFFENDER: Would that be a video link, Your Honour?
27HER HONOUR: Look, we'll just have to see, Mr Buckley, it's still a way down the track. I don't know what position the court's going to be in at that time.
28OFFENDER: Okay, no worries.
29HER HONOUR: You need to understand, Mr Buckley, that being on one of these orders means that if you commit another serious criminal offence or breach the conditions of the order, that you will be required to come back to me if breach proceedings are brought by Corrections and I will have to re-sentence you in respect of these matters. Do you understand that?
30OFFENDER: Yes, I understand that.
31HER HONOUR: Thank you. In respect of the two summary charges, you are convicted and fined $100 each in respect of each one of them. Are there any other matters?
32MS GUESDON: No, Your Honour.
33HER HONOUR: Thank you.
34MS VALOS: No, Your Honour. Sorry, I was on mute.
35HER HONOUR: That's all right, thank you.
36MS VALOS: As the court pleases.
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