Director of Public Prosecutions v Dawson
[2016] VCC 2072
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-02109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STACEY MAREE DAWSON |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 October 2016 |
| DATE OF SENTENCE: | 28 October 2016 |
| CASE MAY BE CITED AS: | DPP v Dawson |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2072 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Hamill | OPP |
| For the Offender | Mr K Blair | Patrick W Dwyer |
HIS HONOUR:
1Stacey Maree Dawson, you have pleaded guilty to one charge of attempting to pervert the course of justice on Indictment No. F11750356.1. The maximum penalty for this charge is 25 years imprisonment.
2On the same day, you also pleaded guilty to two related summary charges which have been transferred to this court pursuant to s.145 of the Criminal Procedure Act. They are Charge 3, unlicensed driving between 13 October 2014 and 13 April 2015. This charge has a maximum penalty of 25 penalty units or three months' imprisonment. Charge 7 is driving whilst disqualified between the dates of 14 April 2015 and 15 May 2015. This charge has a maximum penalty of 30 penalty units or four months’ imprisonment. These charges are said to represent a number of occasions in each of those charges.
3I will first of all deal with the background of your offending to give context to the charges for your sentence today. I refer to the prosecution opening which was Exhibit A on the plea.
BACKGROUND OF OFFENDING
4Stacey Dawson, you were born on 19 August 1984, you were 30 years old at the time of your offending and you lived at your family home in Reservoir. You have never held a Victorian Driver's Licence.
5On 12 October 2014, you committed the offences of unlicensed driving and exceeding the speed limit by more than 25 kilometres per hour but less than 35 kilometres per hour (October offending). At the time of the October offending, you were driving a 1999 Holden Commodore registered number PWT 656. At all relevant times, the registered owner of that Commodore was Julie Anne Dawson, your mother. The October offending was committed in Reservoir where you live and you were first observed by police driving along Strathmerton Street where you were arrested in the driveway of your family home.
6The October offending came before Magistrate Alger at the Heidelberg Magistrates' Court (sitting at Melbourne) on 14 April 2015. Senior Constable Dragos Panoschi was prosecuting. You represented yourself.
7At that hearing, you pleaded guilty to the October offending. The October offending occurred in what is referred to as a Tier 1 relevant offence within the meaning of Part 6A of the Road Safety Act (Vic). As a consequence of the finding of guilt of the October offending, police were entitled to make application under s.83U of the Road Safety Act for the court to make an order pursuant to s.83S, that the Commodore (or a substitute motor vehicle) be impounded for a period of time.
8In the course of the hearing on 14 April 2015, the prosecutor, Panoschi, formally listed the application for impoundment of the Commodore. You had earlier received notice of the application when you were served with the police brief relating the October offending. After hearing from Senior Constable Panoschi and yourself, and after sentencing you for the October offending, the Magistrate Alger adjourned the impoundment application to 15 May 2015.
CIRCUMSTANCES OF OFFENDING
9Your offending consists of statements made by you in the court on 14 April 2015 in relation to the impoundment application and regarding that Commodore - to the effect that the Commodore had been sold and was no longer in your possession. These statements had a tendency to pervert the court of justice by deflecting the impoundment application and denying the Magistrates' Court full knowledge of the true circumstances relevant to that application. You intended that it would have that result.
10After Senior Constable Panoschi read the summary of the October offending, the Magistrate asked you what had happened on 12 October 2014, the day of the October offending. You informed the court that you had bought the car, which was reference to the Commodore, for your mother and had taken it to the petrol station to fill the tyres. The Magistrate then asked you, "Where is the car now?" and you responded in court, "The car is no longer around" and that your uncle's car was being used for transport.
11After sentencing you for the October offending, the Magistrate informed you that police had made the impoundment application in relation to your vehicle, and asked Senior Constable Panoschi how police wanted to proceed with that application for impoundment.
12Senior Constable Panoshi said he understood from what you had said in court, that the vehicle was sold, which the prosecution say is a reference to your earlier comment that the Commodore was "no longer around". This exchange followed between yourself, the police prosecutor and the Magistrate in court:
Ms Dawson: "The vehicle was sold, yeah, because it was my mother's car and we sold it for another car which is a Subaru WRX".
His Honour: "Right. And where's that car now?",
Ms Dawson: "That's in my driveway at my house, which is - - -",
His Honour: "Okay",
Ms Dawson: "Yeah. That car, and then we've got my uncle's car who - - -"
His Honour: "Right"
Ms Dawson: "---My mum actually---"
S/C Panoschi: "The car you were driving on that day?".
Ms Dawson: "Yeah. We no longer have that".
S/C Panoschi: "So you sold that car?"
Ms Dawson: "Yeah, that's long gone".
S/C Panoshi: "And do you have the selling papers?"
Ms Dawson: "I can provide papers".
13Ms Dawson, your reference to “that car” being in the driveway at your house was a reference to a Subaru WRX said to have been recently purchased or otherwise obtained, and when you later answered a question about “the car you were driving on that day”, you were referring to the Commodore. You intended to convey to police and the court that, as at 14 April 2015, the Commodore had been sold by the words, "We no longer have that”, “that's long gone", and by your assertion that you could provide the “papers” for confirmation of its sale.
14The Magistrate said he would adjourn the impoundment application to 15 May 2015, to enable enquiries to be made by the police. During the course this discussion, Senior Constable Panoschi suggested to you that you may be able to attend court on the next date and “prove the vehicle was sold”, and that the Magistrate confirmed that you had indicated that the vehicle had been sold.
15The informant, attended at your address in Reservoir on 20 April 2015 at approximately 9 pm and 5 May 2015 at approximately 6.45 am. On both occasions, he observed the Commodore in question parked outside your residence on the roadway. The informant photographed it.
16On 27 April 2015, officers who were stationed at Reservoir Police Station were carrying out divisional van duties. At approximately 3.45 pm they observed the Commodore parked in a car park opposite the Parkside Inn Motel on Curtain Street, Reservoir. You were seated in the driver's seat. You told the police that the Commodore was your mother's, but that a friend had recently purchased it. When asked where the friend was, you walked towards the Parkside Inn Motel, and returned a few minutes later, telling police that your friend did not want to speak with them.
ARREST AND INTERVIEW
17The informant approached you as you left the court on 15 May 2015, the next impoundment application, and you were arrested and you were cautioned. You were taken to the foyer of the court building. At this time, a male who identified himself as Darren Lister approached the informant and yourself and went to hand a key to you. The informant took the key which Mr Lister told him belonged to the Commodore. Lister said the car was parked on Queen Street, near the intersection of Little Bourke Street.
18The informant left the court with you and walked down to 167 Queen Street where the Commodore was parked in a parking bay in the middle of the road. You were then interviewed at Melbourne West Police Station on 15 May 2015, shortly after your arrest at the court.
19In the record of interview, you admitted lying to the Magistrate about selling the Commodore to Darren. You admitted getting the impoundment paperwork for the Commodore but had taken the Commodore to a friend's house. You denied having control of the Commodore but admitted driving it to take your mother to hospital and going to the supermarket and like activities.
20In respect of the 14 April 2015 court hearing, you admitted to lying to the Magistrate about not having the Commodore and did so because you did not want to go to gaol or to have your mum's car destroyed. In the period between 14 April and 15 May, you said you tried to sell the car. You admitted you spoke to the police at the Parkside Inn Motel and told them you were selling the Commodore to a friend.
THE CONDUCT OF THE CASE
21On 25 November 2015, there was a contested committal hearing where the informant was cross-examined. A plea of not guilty was entered and a trial date of 15 August 2016 was fixed. On 10 August 2016, a plea of guilty was offered by you and accepted by the prosecution. The plea of guilty is late in the process but this has avoided the necessity of a trial.
22The net result of your offending in relation to attempting to pervert the course of justice is delay in the impoundment of the commodore which was registered to your mother. The vehicle was impounded on 26 June 2015. The loss was suffered by your mother.
23The summary charges are based solely on your admissions in the course of your record of interview.
YOUR PERSONAL CIRCUMSTANCES
24You are 32 years old. You were educated to Year 11 at Lakeside Secondary College in Reservoir. You left school after associating with a negative peer group resulting in the commencement of drug use. You have battled drug issues into your adult life and up until the current time.
25You work history is fairly limited. In and around 2005, you had short term employment at David Jones in their fruit department, Aberdeen Nursing Home and Croxton RSL.
26Your mother suffered from cancer in her later years and passed away on 24 September 2016. Your father is a paraplegic as a result of a knife attack on him in 1994. At the time of that attack you would have been just 10 years old. You have a younger brother Shaun who suffers from disabilities.
27When you were 16 years old, you commenced a relationship with a Mr Hunt. You have two children by him, one Michaela who is 12 and Mason who is four. You were caring for your children until 15 December 2015 when your children were taken into care by the Department of Human Services due to your drug use. Since your mother's death, your children now live with your auntie. Currently you see the children approximately three times a week. You had court proceedings to have your children returned to your care.
28Your present circumstances are that you live in the family home with your father and until recent times, with your brother. You are in receipt of Centrelink payments. Your relationship with Mr Hunt is over.
29The medical report from Dr Matthews dated 9 October 2016 refers to your long term use of cannabis and speed. He opines that your drug use has impaired or does have the effect of impairing your frontal lobe reasoning. You do assist in some caring of your father at the present time. Your father is also in the care of professional carers.
30You have prior criminal matters that have been admitted by you. In respect of driving offences, you have four prior convictions for unlicensed driving between 2011 and 2014. I note you have no prior convictions for driving whilst disqualified. Your criminal record commences in 2008 with possession of cannabis and handling stolen goods. You have four subsequent court appearances to 2012 where a combination of possess cannabis and dishonesty offending charges are the subject of those orders.
31In January 2014, one of the court dispositions was a bond with conditions to "take steps to obtain a learner's permit to drive a motor vehicle and to commence lawful steps to obtain a Victorian Driver's Licence". That obviously did not happen.
32The core of your offending has rotated around your drug use of cannabis and speed and your continued behaviour of driving despite failing to obtain a driver's licence.
SENTENCING CONSIDERATIONS
33The offence of attempting to pervert the court of justice strikes at the very core of our criminal justice system. By its nature, it is a difficult offence to identify and to prosecute. The primary sentencing considerations are general and specific deterrence. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance those interests with the interests of the community in denouncing your criminal conduct, and the interests of the community in seeking to ensure as far as reasonably possible, that you as an offender, are rehabilitated and reintegrated into society.
34I am mindful of the provisions of the Sentencing Act and in particular s.5 (4C), which directs the sentencing court to consider whether its community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case, and I have had you assessed for a community corrections order. You have been assessed as being suitable for such an order.
35As part of the governing principles to be considered in sentencing you, I must take into account current sentencing practices. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.
36I have considered the statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of those cases would be distinguishable from your case, as indeed they are from one another.
37The offending in this case is serious. It undermines the public trust in the administration of justice. The administration of justice depends on a system operating so that those that commit crimes are pursued, brought to court and punished and those who take part in interfering with that system commit a great injustice insofar as the community is concerned.
38An eminent jurist, Eames J, as he then was in DPP v Aydin & Kirsch stated this:
"Instances of the offence of perverting the course of justice do not frequently come before the higher courts. The relevant infrequency of such cases, and the fact that the offence may embrace a wide spectrum of criminal conduct, means it is difficult for sentencing judges to assess just where the sentencing range for the offence of any case ought to be regarded as falling".
In this case, the charge of attempting to pervert the course of justice is directed to your efforts to frustrate the impoundment of the car you had been using to drive around when you did not have a licence. Your efforts failed and in reality were amateurish and almost certainly going to fail from the outset. The car was ultimately impounded at the cost of your sick mother.
39I also have to have regard to the maximum penalty laid down by Parliament for this offence. The maximum penalty is 25 years' imprisonment. In this regard, I have assistance from Callaway JA in R v Aydin & Kirsch, and I quote what he had to say about the maximum penalty:
"There is no gainsaying the importance of the maximum penalty prescribed by Parliament for an offence. It provides authoritative guidance by the legislature as to the relative seriousness of the offence, in the abstract, by comparison with other crimes in the calendar. It was for that reason that maximum penalties were introduced in 1997 for common law offences where the penalty had previously been at large, and all the maximum penalties of the Crimes Act and in some other legislation were reviewed. Attempting to pervert the court of justice was one of those offences. It may well be that the seriousness of the offence was sometimes underestimated when the penalty was at large.
It must always be remembered, however, that a maximum penalty is prescribed for the worst class, or one of a number of the worst classes, of the offence in question. On some occasions, when Parliament increases the maximum penalty, that suggests that a more severe penalty should be imposed, not just for the offences falling within the worst class but over a range (not necessarily the whole range) of cases. That is how the successive increases in the maximum penalty for culpable driving causing death have been understood. On the other occasions, an increase in the maximum penalty means only that the Parliament has thought of a worst class for which the previous maximum was inadequate. Moreover, special considerations apply to some offences. The relative seriousness of the theft and handling, for example, cannot be gauged solely by the fact that one carries a maximum custodial penalty of ten years' imprisonment and the other, 15 years' imprisonment.
It is because the maximum penalty is important, that s.5(2)(a) of the Sentencing Act lists it first among the matters which a sentencing court of an offender must have regard and, if the judge mistakes that maximum, that reopens the discretion unless the Court of Appeal is satisfied that a mistake could not have materially affected the sentence.
Nevertheless, in some cases, the maximum is of less utility that might otherwise be the case. The provision of the Crimes Act which prescribe a maximum custodial penalty of 25 years' imprisonment certainly shows that Parliament regards the worst classes of those offences as very serious indeed, but it is wrong to assume that there is an arithmetical progression from zero to 25 years or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale. There are too many other relevant factors, including the circumstances of the incident offence and the matters personal to the offenders. Even more fundamentally, the worst classes of which a penalty of 25 years' imprisonment is prescribed are, by their very nature, far removed from the circumstances with which the judge is then concerned.
It is sometimes said that a judge, in obedience to s.5(2)(a) “steers by the maximum”. It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of cases is a like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid.
In considering the proper case for you in this case, the proper approach is to use the maximum penalty as a “navigational aid”. I consider that the more recent pronouncements of the Court of Appeal in Boulton's case to be applicable in fixing your sentence. I have already stated that the detection of proof of this type of charge is difficult. The fact that you have pleaded guilty indicates that a discount in your sentence is appropriate. Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of the outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community in which you live.
40Whilst your plea of guilty was indicated relatively late in the process and in the shadow of the looming trial date, I do accept that your plea of guilty does demonstrate some remorse for your offending. In the light of your admissions in the record of interview, the plea of guilty is reflective of remorse on your part. This is starkly so in relation to the driving offences.
41Your plea is a clear acknowledgement by you that you accept the responsibility for your criminal behaviour on these occasions. Your plea also recognised that you are prepared to facilitate the course of justice within the community.
42I assess your offending in respect of attempting to pervert the court of justice as the low end of the range for that offence. You were always going to be charged and prosecuted for this offending. The driving offences are consistent with blatant breaches by you of the Road Safety Act. The solution is really simple; you have just got to obtain a driver's licence.
43Your counsel urged upon me that incarceration in prison would be an extra hardship for you. The basis for that submission was that you are still grieving the recent death of your mother. The further matter was your ongoing battle to reunify with your children which would set you back if you spent time in prison. The final matter was that whilst your father has paid carers, you currently assist him with his disabilities and general care in the family home.
44I assess your prospects of rehabilitation as fairly good. If you obtain a driver's licence, then the predominant risk of reoffending in relation to driving, simply evaporates. You have and give family support. You have not reoffended since May of 2015 and this bodes well for your future behaviour being more responsible than your past behaviour.
45The learned prosecutor submitted that an immediate term of imprisonment is the appropriate sentence to reflect the seriousness of the attempting to pervert the course of justice and your persistent breaching of the driving regulations and law. Imprisonment is also called for in respect of the unlicensed driving and the drive whilst disqualified because you have so many prior convictions for unlicensed driving.
46I have had regard to those submissions but have decided that the community is better served by you remaining in the community under supervision with some practical support for your rehabilitation. I have set a judicial monitoring date of 16 February 2017. Your goal is to return to this court on that date with your driver's licence in hand.
SENTENCE
47On the charge of attempting to pervert the course of justice, unlicensed driving and drive whilst disqualified, as an aggregate sentence with conviction, I order that you be placed on a two year community corrections order. I order that you perform 200 hours of unpaid community work. That you are assessed and attend for mental health treatment. That you are assessed and attend for drug treatment. That you are supervised. That you comply with offender reduction programs, specifically that you attend for driver education in order to get a driver's licence. A judicial monitoring hearing will be held on 16 February 2017 at 9:30 am. You are required to come back to the court on 16 February 2017 at 9.30 am.
48Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 12 months' imprisonment for all charges.
49I think that covers it.
50MS HAMILL: Yes, Your Honour. Was the CCO to be imposed with conviction?
51HIS HONOUR: Yes, sorry, didn't announce it. The CCO is with conviction.
52MS HAMILL: Your Honour, there was also referred to in the opening an application for the taking of a forensic sample. I am not sure of my friend's attitude to that application.
53HIS HONOUR: Is it a compulsory thing under these charges?
54MS HAMILL: It's not, Your Honour. The application can be made if it's an indictable offence and the practice as I understand it is to make the application in cases such as this.
55HIS HONOUR: Yes, that's right. Thank you. If this case involved violence or sexual offending, that's violence by definition, but anyway somehow that's always separated. If it was involved in either of those matters I would but these charges are around driving offences and I don't propose to make a s.464ZF order in this case. What that's all about is I'm not ordering that you have to give a forensic sample to the authorities, do you understand?
56PRISONER: Yes, Your Honour.
57HIS HONOUR: Yes. That completes the sentencing process. I just want to say this. You have had a tough run but you've got two children and they are your responsibility and your responsibility is to ensure they don't have a tough run and the way you can fix that is take this chance of the CCO, take your chance to get out of the drug bind you're in, get yourself a licence so you don't come to the ready attention of the police. You're a sitting duck out there in Reservoir. They know who you are. If they see you near a car, you're gone, okay. I don't know what the block has been in your life to get this licence but use this CCO somehow as a chance to get your licence and when you come back in February, I want you waving it at me.
58PRISONER: Yes, Your Honour.
59HIS HONOUR: You can step out of there. You've just got to sign this corrections order.
60(Corrections Order signed and acknowledged.)
61I didn't announce the time when you've got to make your appointment. You've made an appointment to go to the Reservoir Community Corrections on Monday at four o'clock, I think. Is that right? I'm sorry, I'm not sure about the time but you'll know what time you've made the appointment. Make sure you go because what happens is as soon as you don't appear, they say right, that's one non-attendance and after that, you're on the slippery slope out of there. You'll come back before me as a breach and you know what's going to happen. I just want to thank you both for your assistance, everyone here at the Bar table for your assistance in this case today and enjoy your weekend.
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