Director of Public Prosecutions v Cruikshank and Tassopoulos

[2021] VCC 2121

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01275, CR-21-01276

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRUIKSHANK, JAKE

and

TASSOPOULOS, EUGENIA

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	DPP v Cruikshank & Tassopoulos
MEDIUM NEUTRAL CITATION:	[2021] VCC 2121

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempt to pervert the course of justice – co-offenders - youth - pleas of guilty - community corrections order.

Legislation Cited:      Criminal Procedure Act 2009; Sentencing Act 1991.

Cases Cited:R v Verdins & Ors (2007) 16 VR 269.

Sentence:                  Mr Cruikshank - Community Corrections Order of two years duration with conditions. Ms Tassopoulos Community Corrections Order of 12 months duration with conditions.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Keks	Solicitor for the Office of Public Prosecutions
For the Accused, Cruikshank	Mr L. Dean	Slades & Parsons Solicitors

For the Accused, Tassopoulos Ms S. Vardy Balmer & Associates

HIS HONOUR:

Introduction

1Jake Cruikshank and Eugenia Tassopoulos, you have both pleaded guilty to one charge of attempt to pervert the course of justice contrary to the common law. The maximum penalty for this offence is 25 years’ imprisonment.

2Pursuant to ss 145 and 242 Criminal Procedure Act 2009, Ms Tassopoulos, you have also pleaded guilty to Summary Charge 3, commit indictable offence whilst on bail. The maximum penalty for this offence is 30 penalty units or three months’ imprisonment.

Summary of Offending

3A Summary of Prosecution Opening[1] was read aloud in court and in short your offending is summarised as follows:

[1]Prosecution Exhibit 1.

4On 16 August 2020 Mr Cruickshank drove a car into a police vehicle and then left the scene. The incident occurred outside the residence of Jayden Kennett. Mr Kennett was an associate of Mr Cruickshank and Ms Tassopoulos and has autism.

5Mr Cruickshank ultimately entered pleas of guilty and received a total effective sentence of seven months' imprisonment on 23 November 2020 at Frankston Magistrates’ Court for offences including those related to the collision. This offending relates to the course of justice that was on foot prior to those pleas being entered.

6Between 22 August 2020 and 1 September 2020, Mr Cruickshank made a series of telephone calls whilst in custody at Port Phillip Prison to Ms Tassopoulos. These calls were recorded.

7Mr Cruickshank encouraged Ms Tassopoulos to approach Jayden Kennett and persuade Mr Kennett to give a false statement to police. You, Mr Cruikshank, intended that this would stop your prosecution for the 16 August 2020 incident.

8By encouraging Ms Tassopoulos, you, Mr Cruickshank, engaged in conduct that had the tendency to pervert the course of justice, intending to bring about that result.

9Following Mr Cruickshank’s encouragement, you, Ms Tassopoulos, approached Mr Kennett. You had multiple contacts with Mr Kennett and reported your progress back to Mr Cruickshank. It was your intention to persuade Mr Kennett to provide a false statement to police. In doing so, you, Ms Tassopoulos, engaged in conduct that had the tendency to pervert the course of justice, intending to bring about that result. At the time of this conduct, you, Ms Tassopoulos were on bail for matters that are still pending hearing in the Magistrates' Court.

Nature and Gravity of Offending

10The offence of attempting to perverted justice is a serious one. It is inherently an attack on the integrity of the justice system. It can, however, be committed in a very broad array of circumstances.

11In this case, the offence was intended to manipulate a witness into providing evidence which both of you knew to be false. The course of action was embarked upon by you Mr Cruickshank for the sole purpose of avoiding conviction and punishment for charges flowing from your collision with the police car. You were prepared to exploit the vulnerabilities of Mr Kennett in order to get yourself out of a situation you created. You, Ms Tassopoulos, were prepared to act on Mr Cruickshank’s encouragement and direction to get the false statement from Mr Kennett.

12The conduct was unsophisticated and immature. It was motivated by self-interest. It persisted over a series of phone calls and actions that spanned 10 days. Neither of you seemed to have any regard for the potential consequences for Mr Kennett.

13Whilst the gravity of the offences sought to be impacted by the false statement were not at the highest level of seriousness, they were still serious criminal charges as was evident from the period of imprisonment eventually imposed.

14The nature and persistence of the conduct both you engaged in means that this offending is, in my assessment, somewhat above the lowest end of the range.

15The offending was intended to extract you, Mr Cruickshank, from the circumstances that led to you being imprisoned. You were the intended beneficiary of this criminal endeavour to obtain false exculpatory evidence. In order to achieve this you have exploited the loyalty of your then girlfriend, Ms Tassopoulos, in persistently directing her to take the required actions. This included encouraging Ms Tassopoulos to bribe Mr Kennett to give a false statement.

16You, Ms Tassopoulos, acted to assist Mr Cruickshank. You were, however, a voluntary and willing participant over the 10 days of the offending conduct. On 22 August 2020, the first date of the charge period, you told Mr Cruickshank that you were taking Mr Kennett to the police so that Kennett could say that Cruickshank was not present on the night of the incident. In a call on 30 August 2020, you reported to Cruickshank that you had in fact bribed Kennett in order to persuade him to make a false exculpatory statement.

17On 1 September 2020 you emailed police effectively encouraging them to take a statement from Mr Kennett. Based on the phone calls that preceded this, it is reasonable to presume that you expected Mr Kennett to provide a false account that benefited Mr Cruickshank.

18As to your relative culpability, it was contended by the Crown there was little to distinguish between your involvement in the offending. It was conceded, however, that the false statement was intended to benefit you Cruickshank and that you exploited your relationship with Ms Tassopoulos. For these reasons, it was said that you were somewhat more culpable than Ms Tassopoulos. I accept this analysis.

Personal Circumstances

Jake Cruikshank

19Jake Cruickshank, you are 21 years old and were 20 at the time of offending. You are one of 10 siblings and half-siblings. Your family has been involved with the Department of Health and Human Services Child Protection since you were born. Your family life has been dysfunctional and characterised by a lack of supervision, substance use and neglect. You instruct that both of your parents have spent periods in custody. You attended three different primary schools and ceased schooling in Year 7.

20In 2015 you briefly resided in Berry Street residential care before residing with your elder half-sibling and then your father. You have been living with Ms Tassopoulos and her family, despite the relationship between you ending. You were employed for a period of months at the Caulfield Racecourse however that employment ceased when the stable relocated to Ballarat. Tendered on the plea were a bundle of payslips from Rob Hickmott Racing dated between 2 June 2021 to 14 December 2021.[2]

[2]Cruikshank Defence Exhibit 5.

21It is also significant that since the commission of the offence you have completed the sentence that you saw you imprisoned and then on a community corrections order that is now completed.

22Tendered on the plea were, at Exhibit D3, a Youth Justice pre-sentence report dated 22 November 2018 and D4, a road trauma awareness program dated 27 June 2021.

23Since the sentence indication was accepted you have obtained a copy of your birth certificate and have obtained a tax file number with the hope of getting employment.

Eugenia Tassopoulos

24Eugenia Tassopoulos, you are 20 years old and were 19 at the time of offending. You grew up in Geelong with two older brothers. Your parents separated and you subsequently resided partly in Geelong and partly in Melbourne.

25You completed Year 12 VCAL at Chisholm TAFE, Frankston before commencing work in the equestrian and racing industry. You have an excellent work history. You currently work full-time as a stable hand track rider. You were enrolled in diplomas in paramedicine and nursing, though withdrew from these courses as you were unable to secure a placement due to these pending charges. You intend to continue these courses in the future.

26You met Mr Cruickshank when you were 17 years old and were involved in a relationship with him. That relationship has now ended. You returned to live with Mr Cruickshank’s family after your home was destroyed by fire. You have previously been diagnosed with anxiety and have been prescribed Valium for that condition.

Youth

27As I said, Ms Tassopoulos you are now aged 20 and Mr Cruikshank you are now aged 21.

28Both of you are to be sentenced as youthful offenders. Rehabilitation is therefore given more prominence when considering sentence in this case. However, given this is an inherently serious offence, general deterrence still has some application to this offending.

Plea of Guilty

29You have both entered pleas of guilty following a sentence indication hearing on 28 October 2021. Whilst your pleas of guilty were not entered at the earliest possible time, I still consider them to be entered at a relatively early stage in proceedings.

30By your pleas of guilty you have saved the time and resources that would otherwise have been expended upon contested trial. You spared Mr Kennett what may have been if he had been called, the undoubtedly stressful experience of giving evidence. Your pleas of guilty have substantial utilitarian value, especially in circumstances where pandemic restrictions have resulted in extreme pressure being placed on court listings.

31I also accept that your pleas of guilty indicate an acceptance of responsibility for your actions, which contrasts with the fact that both of you denied the offending when interviewed by the police.

32You, Ms Tassopoulos, expressed remorse to the author of the pre-sentence report but engaged in denial and minimisation when discussing the offending.

33You, Mr Cruickshank, engaged in minimisation and justification of your behaviour when discussing the matter with the author of your pre-sentence report.

34In relation to each of you, I accept that you now have some limited remorse but in relation to both of you it something substantially short of complete contrition for your actions. Neither of you appear to have significant appreciation for the seriousness of the offending.

Prospects of Rehabilitation

35Ms Tassopoulos, you have no criminal history. One matter is pending in the Magistrates' court. You work full-time. You come before the court as a person of previous good character. Your offending was unwise but to some extent influenced by encouragement from your then boyfriend, Mr Cruickshank.

36A pre-sentence report to determined you to be suitable for a community corrections order. It noted that you expressed remorse for the offending, albeit as I mentioned engaged in denial and minimisation of that offending. The report author also noted that you presented with a somewhat poor attitude to the order itself, noting that it would take up a lot of your time and that you felt it to be a 'bit annoying'.

37Whilst the pre-sentence report shows that your insight into the wrongfulness of your conduct is far from complete, on balance I consider your prospects of rehabilitation to be at least very good.

38Mr Cruickshank, you do have a significant criminal history. In November 2020 you were imprisoned for seven months for offences including burglary and theft and the driving offences related to the current charges. This offending breached a community corrections order imposed in 2019 after a period of incarceration. You have a substantial history with the youth justice system prior to that.

39A psychological report from Elizabeth Warren dated 28 August 2019 was tendered on your plea.[3] Whilst it is not submitted on your behalf that the principles outlined in Verdins[4] have any application in this sentence, Ms Warren does provide important background information about your history and what might be required to assist your prospects of rehabilitation.

[3]Cruikshank Defence Exhibit 2.

[4]R v Verdins & Ors (2007) 16 VR 269.

40Ms Warren notes that you are motivated to create a good life for yourself, but states that you lack 'the skills to function pro-socially as he wishes unless he is in a structured environment'. She notes that you were exposed to illicit drug dependence and associated criminality from both your parents. She considers this hampered you at a sensitive developmental stages as you did not have good role models to emulate. She considers that your re-engagement with work and continued targeted interventions to assist you with behavioural control to be important in fostering your rehabilitation.

41A pre-sentence report was prepared to assess your suitability for a further community corrections order.[5] That report assesses you of being high risk of general recidivism. It reported that you had little insight into your risk factors or the impact of your behaviour.

[5]Cruikshank Defence Exhibit 6.

42It did, however, assess you to be a suitable candidate for a further community corrections order. Significantly, it confirms that you had successfully completed all program requirements in respect of your most recent community corrections order. It was recommended that such an order be of a length such as to allow for you to complete an offender behaviour program.

43Your prospects of rehabilitation are guarded. As a youthful offender, it is, however, strongly in the community’s interests that these prospects be fostered.

Parity

44I intend to impose somewhat disparate sentences on you, Mr Cruickshank, and you, Ms Tassopoulos. I do this because of what I have found to be the somewhat levels of culpability for your offending and your prospects of rehabilitation.

Submissions on Sentence

45Both of your counsel submitted that a community corrections order was the appropriate disposition.[6] Although Ms Lenthall further submitted on the plea that a substantial fine was also within the available range.

[6]Cruikshank Defence Exhibit 1, Tassopoulos Defence Exhibit 1.

46The Crown conceded that community corrections order was open in relation to both of you, having regard for all the circumstances of the case including your youth. The Crown further submitted that the structure of the orders should reflect the disparity of your respective personal circumstances and to a much lesser extent your disparate role in the offending.[7]

[7]Prosecution Exhibit 2.

Recording of Conviction of Ms Tassopoulos

47Ms Lenthall on behalf of Ms Tassopoulos submitted that pursuant to s 8 Sentencing Act 1991 a conviction should not be recorded. Ms Lenthall relied on Ms Tassopoulos’ lack of criminal history in relation to character and past history. Ms Lenthall further relied on instructions that a conviction for this offending would be a relevant consideration in relation to the completion of her paramedicine course and also relevant to the impact on Ms Tassopoulos’ economic or social well‑being and her employment prospects.

48However, having regard to s 8(1)(a) Sentencing Act 1991, I consider the nature of the offence too serious for a non-conviction disposition to be imposed.

49As youthful offenders I consider that rehabilitation is the primary sentencing consideration. The nature of the offence also means that general deterrence retains some significance and I must also impose a punishment that is just in all the circumstances. I must express denunciation also for your conduct.

Sentence

50Mr Cruikshank and Ms Tassopoulos, what I am proposing to do at this stage, on Charge 1 in relation to both accused, is to record convictions and place each of you on a community corrections order.

51For you, Mr Cruickshank, I intend to impose an order of two years duration.

52For you, Ms Tassopoulos, I intend to impose an order of 12 months duration.

53On Summary Charge 3 in relation to Ms Tassopoulos, commit indictable offence on bail, you are convicted and discharged.

54The conditions applicable to each order will also be different.

55But I can tell you in relation to both of you the core conditions apply to all community correction orders and to both that are being imposed in this case. Those core conditions are as follows.

56You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

57You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.

58You must report to the Community Correction Centre at Dandenong within two clear days from today.

59You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

60You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

61You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.

62Now there are a number of other conditions that apply to your order, Mr Cruickshank. All right, so this is in relation to you, Mr Cruickshank. These are conditions particular to your order.

63You have to perform 125 hours of unpaid community work over a period of two years as directed by the Regional Manager (s48C). Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).

64You must be under the supervision of a Community Corrections officer for a period of two years.

65You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).

66You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).

67You must undergo programs or courses aimed at addressing factors related to the offending as directed by the Regional Manager.

68All right, Ms Tassopoulos, now these the particular conditions that apply to your order. So beyond the core conditions outlined above:

69You have to perform 75 hours of unpaid community work over a period of 12 months as directed by the Regional Manager (s48C). All right?

70Now I can only impose a community correction order if you agree to such an order being imposed. So before you agree to such an order being imposed I want to tell you a couple of things about the order or the orders.

71If you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).

72You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).

73I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).

74All right, now are both of you aware of all those matters?

75OFFENDER TASSOPOULOS: Yep.

76HIS HONOUR: First, Mr Cruickshank. Yes, you do and Ms Tassopoulos?

77OFFENDER TASSOPOULOS: Yes.

78HIS HONOUR: Yes, all right. So do you each consent to that order being imposed, Mr Cruickshank?

79OFFENDER CRUICKSHANK: Yeah. Yes, Your Honour, I do.

80HIS HONOUR: Yes, that is all right just go to say it out loud because we are recording it. And Ms Tassopoulos, do you consent to the order that I have just outlined?

81OFFENDER TASSOPOULOS: Yes, I do.

82HIS HONOUR: All right.

83All right, now pursuant to s 6AAA Sentencing Act 1991, but for your pleas of guilty I would have imposed a sentence on Mr Cruickshank of two years' imprisonment with a non-parole period of 18 months and on you, Ms Tassopoulos, a period of imprisonment of 15 months with a non-parole period of nine months.

84Now are there any further orders required?

85MR DEAN: No, Your Honour.

86MR KEKS: Not from the Crown, Your Honour.

87HIS HONOUR: No. I then thank you all for your assistance, I will adjourn the court.

88MR KEKS: Please the court.

89MS VARDY: As Your Honour pleases.

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