Director of Public Prosecutions v Cause

[2023] VCC 1920

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00184

CR 22-02041

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS ALAN CAUSE

JENNIFER MICHELLE PORTER

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2023
DATE OF SENTENCE:	20 October 2023
CASE MAY BE CITED AS:	DPP v Cause & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1920

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:             Attempt to pervert the course of justice – Perjury – Pleas of guilty

Sentence (Cause):  36 days’ imprisonment in combination with a 2 year Community Corrections Order

Sentence (Porter):    2 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For Offender Cause	Mr R. Backwell	Tyler Tipping & Woods
For Offender Porter	Mr J. Miller	SP Legal

HIS HONOUR: 

1Nicholas Alan Cause, you have pleaded guilty before me to a charge of attempt to pervert the course of justice which carries a maximum penalty of 25 years' imprisonment, and a relevant summary offence of driving an unregistered vehicle.

2You have no criminal record and this is a significant matter in sentencing you to these offences.

3Jennifer Michelle Porter, you have pleaded guilty to perjury which carries a maximum penalty of 15 years' imprisonment. 

4You do have relevant prior matters, in particular matters for dishonesty.

Circumstances of Offending

5The facts of the matters you are both to be sentenced for are as follows.

6On Thursday 7 October 2021, in the evening, police saw your unregistered yellow Hyundai Elantra, Mr Cause, turning north onto Bridle Road and police stopped at the intersection on a red light. Your car passed through the intersection, pursuit then followed, eventually you left the vehicle on foot. You had left your wallet behind on the driver's seat, keys were in the ignition, ignition in the 'on' position.  In the vehicle was also some dog food and a receipt from Woolworths.  Police could not locate the driver of the vehicle they were looking for.  Onlookers said that the driver had left on foot. 

7You, the next morning, phoned police and reported the vehicle as having been stolen from Ms Porter's address.  Later that day police attended to obtain a statement in relation to theft of the vehicle.  You, Mr Cause, were not home, however, Ms Porter was outside the address and stated to police that you had been with Cause all night and that you were willing to provide a statement to that effect.  This was of course false.

8A statement was taken.  You, Ms Porter, were advised prior to signing the statement that if the contents were not true and correct you may be liable to the charge of perjury.  You freely signed the statement.

9There were then investigations done in relation to the receipt and the wallet, of course, CCTV footage was looked at from Woolworths.  There were also investigations done in relation to your phone data, Mr Cause, all leading fairly promptly, I would think, to the conclusion that you had been in fact driving the vehicle and what flowed from that was Ms Porter's account was false.

10On Sunday 14 November, you, Mr Cause, were arrested at your home address and conveyed to Morwell police station.  During that period of being in police custody, police telephoned you, Ms Porter, and during that phone call you advised police that everything in your statement was accurate except the time.  You corrected that aspect and stated that the accused man arrived between 11.00 to 11.30 pm on 7 October.  You agreed to amend your statement to reflect the correct time.  There was then some telephone contact between you, Mr Cause, and you, Ms Porter.

11Police attended again at your address, Ms Porter, in relation to your statement at around 5.00 pm – this is still on 14 November as I understand it – and you made a further change to the time you say the accused man, Mr Cause, arrived at your address on the night in question stating that he arrived at 9.00 pm, as Mr Cause had in fact stated in his interview.  No further statement was obtained from you at that time Ms Porter.

12You, Mr Cause, have been in custody some 36 days in relation to the matter having failed to attend court when required to do so on several occasions and you were arrested for failing to appear on 14 September this year.  You have been on remand since.

Objective Gravity of Offending

13This was serious offending.  The crimes of attempting to pervert the course of justice and perjury are both crimes which strike at the heart of justice.  They also have the effect of draining police resources, causing unnecessary enquiries to be made.  Police of course have limited resources, they have better things to do, and others in the community lose out from their time being taken up with these sorts of enquiries.  Having said that, it is my sense that the police were not led very far down a false path and realised the falsity of the claims fairly promptly, it would seem.

Personal Circumstances

Nicholas Cause

14Turning to matters personal to you, starting with you Mr Cause.

15I was told you are the second eldest of four children, born in New South Wales.  You left home at the age of 16.  I was told your father is a violent alcoholic man.  You left school in Year 10.  You have worked in a wide range of jobs including painter and a decorator for 10 to 11 years and you have not worked since having a motorcycle accident some three years ago.

16As Mr Backwell has reminded me moments ago, you have a history of being a daily user of cannabis.  Significantly, you have no prior criminal history.

17I also accept that you suffer a major depressive disorder.  It is likely this stems from childhood experience and your time in custody was difficult for that reason and any further period of incarceration would be more difficult for you than it would for a person who did not suffer this condition.  You have been prescribed medication for anxiety and depression. 

18When you were in custody, as you are now - but you are soon to be released on a community corrections order, I am anticipating - but your experience in custody has been difficult but you have occupied your time well working in the kitchen and completing courses, including an OH&S in food handling course and studying a Certificate 2 in cooking, which it was remarked on the plea that that shows considerable endeavour given that it is often the experience of the courts that these courses are hard to get into and have a bit of a waiting list.

Jennifer Porter

19Turning to you Ms Porter.

20You were born in Brunswick and grew up with both parents and three older brothers.  You first started your primary schooling in the Brunswick area and then moved to Gippsland when you were 11.  Your father worked for the SEC in Gippsland.  Your parents are still living in the childhood home, they are in their 80s. 

21You went to Kosciuszko Street primary school in Traralgon and then studied at Traralgon Tech, finishing Year 10 and then working full-time at Kmart.  You stayed in that job, I was told, for four years but then suffered from a condition that needed hospital admissions.  You then worked as a secretary for your brother's plumbing supplies business for a number of years before meeting your first husband and marrying and moving to Queensland for about 10 years from the age of 22.

22Your daughter, Gabrielle, who supported you in court and also provided a written reference came into your life when you were 25.  She, I was told, works in personal finance.

23At ages 22 to 32 you were in Queensland.  You arrived back to Victoria at that age in your early 30s. After the breakdown of your marriage, you bought a house in Traralgon.  You started a relationship with someone you knew from childhood and that man turned out to be, in your words, a career criminal. 

24You had a son, Darcy, when you were 33 and when he was just an infant at the age of two your second husband was sentenced to eight years' imprisonment for serious dishonesty and violent offences.  You had been subject to family violence as a consequence of that relationship.

25After his imprisonment you started a relationship with another man who introduced you to drug use and you then descended into drug use for a number of years, and the most eloquent expression of what those years entailed and the effect it had on those around you, in particular your children, is set out in the letter of Gabrielle Madex. 

26That letter is quite a powerful document and statement as to what was going on in your life at that particular period of time.  The criminal record which I referred to at the outset would seem to fall within that period of time and be related to the drug use that is described within that letter.  It would make very sad reading indeed, and reading that would not give me much confidence in your prospects of rehabilitation, were it not for the reformative aspects of that letter in the final paragraphs where your daughter is extremely forgiving, if not forgetting of the experience, but quite proud of you for the way you have turned your life around, and that encouragement and support augers well for your prospects of rehabilitation into the future.

27There were consequences for your descent into drug use and unsavoury associates, you ended up losing your house, you lost your relationship with your family.  You hit rock bottom, to use that description.

28I have received a psychological report from Ms Carla Lechner which sets out much of the background and the effects upon you as a result of that experience.  I accept the matters in Ms Lechner's report.  I also accept, although I had not referred to it, the report of Dr Aaron Cunningham on behalf of Mr Cause, in particular in relation to a major depressive disorder.

29I do accept in your case Ms Porter that you have in the shadow of these charges turned your life around significantly, and that has been a significant factor in, first, giving a sentencing indication that I would impose a non-custodial sentence, and second, having heard the plea and considered the assessment report maintaining the position that it is the appropriate outcome in your case.

30Given your prospects, given the circumstances of the offending, the circumstances in which you came to be involved in the offending – and I made comments during the course of the plea in relation to both you, Mr Cause, and you, Ms Porter, as to what a hopeless pointless exercise it all was in relation to an unregistered motor vehicle - to go down the path that you both did and find yourselves, well you Mr Cause, in custody, you Ms Porter, on the brink of it and having to deal with the stress of that throughout the court proceedings. 

31I am satisfied that for both of you, in the context of your antecedents, you have learnt a lesson, and a significant lesson.  That has been quite central to my decision to impose what I consider quite a lenient and merciful sentence for both of you in the circumstances, given the gravity of the crimes and the objective gravity of both attempting to pervert the course of justice and perjury were alluded to and set out by Mr Perry, and it is inescapable that they are serious examples of criminality.  But in both your cases I have concluded that the principles of general deterrence, which do loom large in cases such as this, can be met by the imposition of a community corrections order, in your case Ms Porter, and a combination sentence, in your case Mr Cause.  So too it can be important the principle of denunciation for crimes of this nature.  As I have touched upon, specific deterrence is not a factor which in either of your cases concerns me greatly given what I have heard and observed in relation to both of you.

Sentence

32In relation to sentence I intend to, on you Ms Porter, with conviction, I will sentence you now as follows:

33On the charge of perjury, with conviction, you are sentenced to a two-year community corrections order. 

34There is unpaid community work of 125 hours to be performed in relation to that. 

35I will credit 50 hours of therapeutic services as able to being credited toward that 125 hours. 

36There will also be a special condition of supervision, a condition of drug treatment and rehabilitation. 

37And also, notwithstanding that there was some conjecture between the MHARS report and the Corrections report, I will make a mental health assessment and treatment condition in your case in respect of your order also.

38Were it not for your pleas of guilty I would have sentenced you to a head sentence of 18 months' imprisonment with a non-parole period of 12 months.

39Mr Cause, in your case, on the charge of attempting to pervert the course of justice you are sentenced to be imprisoned for 36 days in combination with a two year community corrections order. 

40You are to perform 150 hours of unpaid community work pursuant to that order, 50 hours of therapeutic interventions can be credited towards that 150 hours of unpaid community work. 

41Special conditions will include a supervision condition and a mental health assessment and treatment condition. 

42I have acceded to Mr Backwel's submission in relation to drug treatment and rehabilitation based on your lack of criminal history and what I do not see as a real relationship between your daily cannabis use and the offence.  I made that finding notwithstanding the very helpful and astute submissions of Mr Perry on the point.

43In relation to the charge of unregistered ‑ ‑ ‑ 

44MR PERRY:  ’'m sorry, Your Honour, counsel are bonding again.  Just a separate order was required for the unregistered, Your Honour ‑ ‑ ‑ 

45HIS HONOUR:  Yes.

46MR PERRY:  I’'s a financial penalty only for a first offence.

47HIS HONOUR:  I was just moving on to that.

48MR PERRY:  May it please, Your Honour.

49HIS HONOUR:  You are ahead of me, as usual.  Driving an unregistered vehicle with conviction Mr Cause is to be fined $300.

50In relation to Mr Cause, were it not for the plea of guilty on the charge of attempting to pervert the course of justice, I would have sentenced you to a head sentence of two years with a non-parole period of 18 months.

51Now, do you consent to the corrections order Ms Porter?

52OFFENDER PORTER:  Yes, (indistinct).

53HIS HONOUR:  You can have a seat.  That will have to be signed by me and then signed by you.  And Ms Porter, I must tell you that if you breach that order, if you do not comply with the conditions of that order or you commit further offences punishable by imprisonment, it is likely you will be brought back before me and you will have to be re-sentenced.  So be aware of that.  The same for you, Mr Cause.

54Now what that requires, Ms Porter, is that within two business days you are to report to Corrections, but that is set out on the order itself.

55In your case, Mr Cause, you will be expected to report to Corrections within a couple of days of your release from custody, whenever that shall be, probably Monday perhaps. 

56Are there any disposal orders?

57MR PERRY:  No, Your Honour. 

58HIS HONOUR:  I don’t know how far away we are from getting those orders printed out – yes, 30 seconds – so ’'ll sign Ms Porter’s and ’'ll sign Mr Cause’s as well, but Mr Cause's will be sent to him.  Do you consent to the Correction’s order, Mr Cause?

59OFFENDER CAUSE:  Yes.

60HIS HONOUR:  I think it will be emailed to him in custody and Corrections will have a copy as well so he might be asked to sign it when he attends at Corrections. 

61MR BACKWELL:  Would Your Honour declare 36 days of pre-sentence detention ‑ ‑ ‑ 

62HIS HONOUR:  Yes, I forgot to do that.  I have it written down, I forgot to do it. 

63Pursuant to s18 of the Sentencing Act I declare, Mr Cause, that you have served 36 days of the sentence as pre-sentence detention.

64MR BACKWELL:  Thank you, sir.

65HIS HONOUR:  So that's Ms Porter's order.  Ms Porter, you will get a copy of that order, and Mr Cause, you will get a copy of the order too sent to you somehow.  At the very least it will be Corrections when you report there.  Anything else?

66MR PERRY:  No, Your Honour. 

67MR BACKWELL:  No, Your Honour. 

68HIS HONOUR:  Thank you everyone.

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