Director of Public Prosecutions v Constable

[2020] VCC 1439

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00509

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN CONSTABLE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2020
DATE OF SENTENCE:	10 September 2020
CASE MAY BE CITED AS:	DPP v Constable
MEDIUM NEUTRAL CITATION:	[2020] VCC 1439

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:  Sentence – Plea of guilty – Attempt to pervert the course of justice –Threatening letter sent from gaol– Payment of $10,000 – Medium risk of re-offending – Community correction order – Fine

Legislation Cited: s.320 Crimes Act 1958

Cases Cited:DPP v. Aydin & Kirsch [2005] VSCA 86 – R vBuscema [2011] VSC 206 – DPP vDalgliesh [2017] 91 ALJR 1063

Sentence:Convicted and sentenced to a 3-year community correction order with conditions. Convicted and ordered to pay a fine in the sum of $3,000 with a stay until 10 March 2022. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Naimo (Sentence) Mr L. Harrison (Plea)	Office of Public Prosecution
For the Accused	Mr J. Brancato	Armstrong Legal

HIS HONOUR:

1Mr Constable, you can remain seated while I read the details of your sentence.  It is necessary for me to do this obviously for your benefit. Your counsel can explain to you in due course the particulars of the sentence, but also for the public record it is important to have this recorded.  I will ask you to stand in due course.

2Mr Jordan Constable is now aged 36, born on the 14th day of April in 1984, pleaded guilty to one charge in Indictment No.L10191374.  The plea was heard before this Court on 10 August 2020. On that day Mr Harrison appeared on behalf of the Director, and Ms Naimo appears today.  Mr Jonathan Brancato appeared on behalf of Mr Constable, who appears today.

Circumstances of the Offending

3The circumstances, which really were not in dispute, as to this criminality were set out in Exhibit A, the prosecution opening.  The charge is one of attempt to pervert the course of justice on 4 March 2019, when a letter, Exhibit B, the particulars thereof are set out at [9] of the prosecution opening, was sent to the victims.

4Such is an offence under common law and pursuant to s.320 of the Crimes Act, the maximum penalty for such an offence is 25 years imprisonment.  The penalty itself gives an indication of the view of Parliament as to the seriousness of charges of this type.  I will come back to talk about those matters in due course. 

5As is demonstrated from Exhibit B, the letter itself contained both a threat and an incentive, the threat being to the younger daughter of the Pereira, the incentive being the offer of payment of $10,000.

6In so far as penalty is concerned it should be pointed out that whether it is an attempt or, if the perversion of the course of justice is achieved, the same penalty applies.  Of course this charge relates only to an attempt.

7In so far as the circumstances are concerned, given in particular the threat to the daughter, the description by Mr and Mrs Pereira of the letter as ‘threatening’ and their reaction set out in Exhibit C and D, being their victim impact statements, seemed to be appropriate in all the circumstances.  It was not suggested at any stage by Mr Brancato that the comments made therein were exaggerated in any way.  I am not quite certain why in the circumstances the change of location of their daughter occurred, but there we are, that was their individual reaction.

8Subsequent to this offence, Mr Constable was dealt with by way of sentence in the Magistrates' Court for the actual burglary, whereby Mr Constable was able to get the details which enabled him to make the particular threat by way of reference to the daughter.  He obviously obtained those when he effected the burglary, on the 19^th of January 2019.

9As I say in regard to that burglary, he was subsequently arrested, and has been on remand from 4 February 2019.  Hence this crime was committed while in gaol.  On 10 September 2019, in so far as the Magistrates' Court sentence was concerned, a combined sentence given by way of 217 days gaol which was essentially the service of gaol to that date, plus a community correction order for 18 months. Essentially the sentence related to a number of consolidated charges, and was subsequently varied upon a breach.

10The post offence simply explains how he came to be in gaol at the time of the commission of this offence. In regard to prior offences Mr Constable really has not got a significant record at all, apart from a theft matter for which was dealt with in December 2018 and for which a further community correction order was imposed, for a number of matters, essentially related to drugs, deal proceeds, family violence and driving matters.  The only other prior was a drug offence in Dandenong in May 2018 for which he got a community correction order.

11As I said in regard to this crime, the circumstances and the impact upon the victims were set out in the victim impact statements Exhibit C and D.  The exhibits tendered were in addition for the prosecution, the outline of prosecution submissions in regard to sentence.  Those submissions were dated 7 August 2020, I found them of much assistance as I did the oral and written submissions of Mr Brancato.

12The totality of the circumstances in this case have proved somewhat troubling to me.  I accept the prosecutor's submission in Exhibit E as to the seriousness of this crime.  The seriousness is demonstrated, albeit an attempt, by the maximum penalty.  I accept, as both parties did, the principles set out in DPP v Aydin [2005] VSCA 86, as to the need for appropriate graduation of criminality.

13I also accept the principle set out in Buscema [2011] VSC 206 which really goes to the very important factor, given the importance of the maintenance of the rule of law in this State, being general deterrence.

14As pointed out in the submission of the prosecutor, the letter had in fact been sent from gaol, it both included an inducement and a threat in regard to the daughter, although as put by both counsel there was no further actions taken.

15In so far as the circumstances of that letter being sent, it was put by Mr Brancato that I should take into account the impact upon Mr Constable, of this being the first considerable sentence that he was going to suffer, albeit that he had not been dealt with at that stage.  That he was in a process of recovering from a significant drug addiction. Mr Brancato submitted to me that I should accept that the reason this was sent because his thinking process had gone somewhat askew.

16It was also submitted to me that it was spontaneous, the prosecution disputed this. It seems to me that given the content, and indeed the other sample letter that was referred to, not that in any way Mr Constable stands to be sentenced on that, but in assessing the issue of spontaneity one needs to take the totality of the circumstances into account.

17I think it was a considered letter, however it is important to understand that no further action was taken upon it.  Ultimately I also accept the cases put to me and argued by both counsel. Of course pursuant to the determination of the High Court in Dalgliesh [2017] 91 ALJR 1063, 1075, Mr Constable is entitled to a just sentence upon the facts of this case.

18I accept however the cases presented to me by both counsel and the arguments put therein as appropriate guideposts in the totality of the calculus here.  As I said Mr Brancato had no issue with the level of seriousness put by the prosecution, but for the issue as to the spontaneity. 

19It was the ultimate submission of the prosecution, given the serious nature of the crime, despite taking into account all of the ameliorating factors, that were to be put on behalf of Mr Constable, that a period of immediate goal should be imposed.

20The alternative proposition put by Mr Brancato was that a community correction order would be appropriate given the totality of the circumstances in this matter, despite the accepted seriousness, that is that I should pass a sentence which involved no further gaol.  By that I do not want to be misunderstood.  I understand there has been no gaol imposed for this offence, but there has been a period of seven months served for the burglary.

21Mr Constable is now 36, and he was 34 when this offending took place.  He came to Australia from New Zealand in April 2010.

22The particular offending in his life, not only the matters that I am now dealing with, but in particular the matters which arose in 2018 and into 2019, seems to accord with the break-up of his relationship with a subsequent partner, a Rachel Vriend.  There were issues apparently in so far as access to his children, and also unfortunately he became involved with drugs, in particular from mid-2018 with cocaine.

23Hence as I said he was in February 2019 remanded on the burglary charges.  He had earlier served seven days awaiting sentence for which he got the community correction order in December 2018.  These offences were therefore committed approximately one month later, and as I have already said, subsequently to the commission of this offence, the rolled up cases were dealt with in the Magistrates' Court, when he was placed on a community correction order, after seven months service of gaol.

24Mr Brancato submitted that such sentence should be taken into account, although it cannot be taken as pre-sentence detention. It should be noted on the totality argument that that was indeed service of gaol and a community correction order for the burglary itself, and the associated offences, which form the background to this attempt to interfere with the course of justice.

25Further, although I do not have actual proof of the matter in the sense of screens, it was submitted that this first significant period of incarceration has been a learning process for Mr Constable. That from when he was incarcerated, he has, as a result of coming to a comprehension of what drugs have done to him, been free of drugs.

26In this regard I note firstly Exhibit 2, the reference of his current partner, and her support of him and confirmation of his remorse.  Equally I note his own letter of apology to this Court where he expressed remorse.  There is confirmation for the manner in which he has conducted himself reported in Exhibit 5 which is the report of the case manager at Corrections, dated 6 August 2020 and it comes with a further report from the drug counsellor, Exhibit 4.

27As to the comments in regard to his progress, as to supervision, it is noted that he was assessed at that stage as a medium risk of re-offending, that he complied with all directions to that stage, accrued no issues with compliance and was, due to the COVID-19 issue, receiving ongoing telephone supervision sessions and engaging well.

28Mr Constable had undertaken some 15 sessions by way of counselling in so far as drugs are concerned, and was exited from that program.  Given the intensity of his addiction, it seems to me that a longer program is necessary but it also noted his treatment and rehabilitation to the extent that was able to be achieved to that time.

29Today has been tendered, Exhibit F, from the Community Corrections Office. It was a positive report, and I thank the community correction officer, Ms Rebecca Edwards.  The medium risk of reoffending was confirmed, the recommendation as to ongoing support and supervision was also confirmed and I take that matter into account.

30In the plea Mr Brancato was at pains to talk of the appropriate discount for the early plea in this matter, the fact that not only did he serve the period of gaol since this offence but has effected rehabilitation to date. The issue of totality, given the matter could have been dealt with at the time, of the sentence below, also has to be accepted.

31In addition of course when one is considering a sentence of gaol, at the moment one has to take into account that Mr Constable will endure, the personal risk of contracting COVID-19 but of course there is the ongoing restrictions within the prison system. As I understand essentially it is lock down for half a day in all prisons, and of course the impact in particular in so far as he is concerned of the inability to see his support persons, his partner and indeed his children.

32As I said this is a troubling sentence.  On the one hand we have the seriousness of the crime and the strong submission from the prosecution. On the other hand we have a person before the Court, albeit pleading to a serious offence, who essentially apart from the impact of drugs, which I think have had a large impact on not only the offending for which he has already been dealt with but this case as well, somehow his life came unstuck. I need to effect a balancing process.

33Doing as best I can in the totality of the circumstances that have been presented to me, and applying the sentencing calculus that I must, I have determined that it is appropriate to grant a community correction order.  Mr Brancato, I do not intend to do this until you have spoken to your client, and I will stand down while you do it. What I intend to do subject to his consent, is impose a community correction order for a three year period.  Now that is as he knows no easy task, he has already previously breached such an order.

34The conditions that will be imposed upon him are supervision for the whole period, drug counselling, random sampling and testing.  I also would request that he be subject to offending behaviour therapy, that he provide and carry out community work for a period during that three years of 200 hours. I do not accept the proposition that any counselling should offset those work programs, that is the reference to s.48CA and will not be accepted by me.

35But I want to say this, Mr Constable, no point me giving you a community correction order if you are going to spit in the Court's face.  This is not meant to be easy, but you have got to solve your issue of drugs. You have got to resume the life that you were leading before you allowed your life to go askew with drugs.  You have got a lot of support. However I am imposing upon you a period of three years and the breach would be to commit further criminality in that period, or in this particular case, to breach the conditions. I tell you now, before you accept, you come back here having breached it and just bring your toothbrush, you will not need counsel because you will go to straight to gaol, all right, I want that clear, no mucking around. 

36So Mr Brancato, it will be a community correction order for three years.  A fine of $3,000 with a stay of 18 months, I do not see that as a great issue given your client's capacity for employment,  a work requirement of 200 hours, I understand the difficulties at the moment with COVID-19, but that 200 hours has to be served over the whole period of three years, but most importantly the drug counselling and the therapy in regard to criminal behaviour, the appropriate reporting will be Sale Community Corrections.

37I will stand down while you talk to your client, because I want it made clear that this sentence has been very troubling. I have given him a break because of his background, despite the serious nature of the crime, but there will not be any second chance.

(Short adjournment.)

38MR BRANCATO:  Your Honour, thank you for that, my instructions from
Mr Constable, my instructions are to consent to a community corrections order.

39HIS HONOUR:  And you have explained the expectation of the Court, that these conditions will all be complied with and the consequences thereafter if not.

40MR BRANCATO:  Crystal clear, Your Honour, and he is grateful for that further opportunity.

41HIS HONOUR:  Yes, if you could stand please, Mr Constable.  As I have indicated you will be convicted of this offence.  For such an offence you will be firstly fined a sum of $3,000 for which I will give you a stay of 18 months.  You will also be placed on a community correction order for a period of - there is no pre-sentence detention ‑ ‑ ‑

42MR BRANCATO:  No, Your Honour.

43HIS HONOUR:  ‑ ‑ ‑ in this because it was all served on the other.

44MR BRANCATO:  That is correct, Your Honour, no presentence.

45MS NAIMO:  That is correct.

46HIS HONOUR:   For a period of three years, and be subject to supervision for all of that period, drug counselling I would think it is necessary for all the period but I will leave that to the specialists, but in particular I order that you be subject to random testing.  I also order that you be given the benefit of offending behavior therapy and that a work condition be imposed as part of this community correction order, that being to perform 200 hours of community work, I understand as a result of the COVID situation that some, if not all of those conditions will be restricted until we get over the COVID stage, you are well aware of that at the moment. You might thank your current supervisors for their very positive comments about you, but of course that all relates to the way that you have acted since you have got out of goal.  The whole purpose of the conditions is to make sure you do not go back to goal, all right.

47OFFENDER:  Yes, Your Honour. 

48HIS HONOUR:  You have got to report to Sale, I will have you sign the order which sets out those matters, Mr Brancato, if you just satisfy yourself that those matters are so detailed. 

49MR BRANCATO:  Of course.

50HIS HONOUR:  Madam Prosecutor, are there any matters that I need to attend to which I have not?

51MS NAIMO:  No, Your Honour.

52HIS HONOUR:  Did you prepare the sentencing submissions?

53MS NAIMO:  I didn't, Your Honour, I believe Mr Harrison prepared those.

54HIS HONOUR:  Who?

55MR NAIMO:  Mr Harrison.

56HIS HONOUR:  All right, yes, they are very helpful. 

57MR NAIMO:  I will pass that on, Your Honour.

58HIS HONOUR:  Thank you.  All right, Mr Brancato, we have got a copy of the order there which we will be able to give you.  Now there is no impediment on your client since he has actually been on bail to coming out of the dock now.

59MR BRANCATO:  Thank you, Your Honour.

60HIS HONOUR:  Yes, you can come out of the dock.

61MR BRANCATO:  Thank you gentlemen, for your assistance.

62COUNSEL:  Thank you. 

63HIS HONOUR:  Yes, do not let me down, Mr Constable.

64OFFENDER:  I plan not to, Your Honour.

65HIS HONOUR:  Thank you.

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