Director of Public Prosecutions v Dyer

[2023] VCC 2201

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02002

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE DYER

---

JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October and 27 November 2023
DATE OF SENTENCE:	27 November 2023
CASE MAY BE CITED AS:	DPP v Dyer
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence

Catchwords:              Attempting to pervert the course of justice - persistent contravention of an interim family violence intervention order – family violence – mental health - persistent and sustained conduct - relevant prior convictions for family violence

Legislation Cited: Mental Health Act 2014 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Oksuz [2015] VSCA 316; DPP v Carter (2020) VSCA 156.

Sentence:Total effective sentence of 20 months imprisonment with a non-parole period 12 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Offender	Mr C. Nikakis	Haines & Polites

HIS HONOUR:

1Luke Dyer, you have pleaded guilty to one charge of attempting to pervert the course of justice, for which the maximum penalty is 25 years’ imprisonment, and one charge of a persistent contravention of an interim family violence intervention order, for which the maximum penalty is five years’ imprisonment.

2You were born in July 1987. At the time of the offending, you were 33 years old. The victim in this matter is Georgia Lock[1].  At the time of the offending, you and the victim had been in a relationship for around two years.

[1] A pseudonym.

3On 19 March 2021, the victim made a statement to police against you in relation to a family violence incident.  You were arrested and remanded in custody.

4On 20 March 2021, a Family Violence Intervention Order was issued in favour of Ms Lock at the Frankston Magistrates’ Court. The conditions of the order prohibited you from contacting her.

5You contacted her between 22 and 29 March 2021 via phone from gaol on nine occasions in breach of the Family Violence Intervention Order which is the basis of Charge 1.  During some of these phone calls, you told Ms Lock to retract her complaint to police in relation to the allegations of family violence, which is the basis of Charge 2, attempt to pervert the course of justice.

6On 22 March 2021 at 11.21 am you called Ms Lock from the Melbourne Assessment Prison and you said the following:

·     You needed her to speak to Karen Sheridan, a lawyer, and for Ms Lock to say she desperately needed help.

·     You needed her to go to the police station and withdraw the charges against you.

·     After being informed by Ms Lock that you had already done so, you said to make sure to get it signed and to get all the paperwork. You told her to say she was under the influence of medication; that Police forced her to do it, that is make a statement; and that the only reason she did was 'because of the kids' and that she cannot get them back.

·     You needed her to do everything possible, otherwise you were not going to get out of gaol.

·     You needed her to attend prison and collect some paperwork.

·     You would put her on the visitor list under the name ‘Georgia Lock’ as you needed her to go to court as well 'to withdraw the restraining order'.

7On 23 March 2023 at 2.31 pm in a further call from the Melbourne Assessment Prison:

·     You told her to be careful what she said, otherwise you would be in breach [of the intervention order].

·     You said you needed her to write a letter to the Magistrate to say that her father is a victim and that he has got cancer; that her sister has got cancer; and that the whole family has been ripped apart because the Police manipulated and forced her to make a statement she did not want to.

·     Ms Lock then read to you what she had written down, namely that the order had been based on an untrue statement that she had withdrawn a few hours later and that she had made the statement under the influence of Valium; that Police and Child Protection had caused immense trauma by removing her children; that the allegation of family violence was false and made with the hope of having her children returned. Ms Lock told you the statement was unfinished, to which you told her that she had to write that she was the victim of rape, 'like the other story you wrote'. You and Ms Lock continued to discuss what should be in the letter.

·     You said that you would be looking at a long time [in gaol] based on the charges you were facing.

·     You said you would fight this together and you needed Ms Lock to do everything she could.

·     You said you needed her 'to just have a story together … fully go to the police and go again, not just a statement of no complaint. And go to the police and say that you wanna retract all charges… you won’t be a witness to it all. That you were under the influence of valium, and you don’t recall anything that you said. Write a story about your dad, and how hard we’ve tried, how hard, that, you know, we’ve tried getting all this done, 'no one would do anything, so Luke said just blame him like they want you to'. You and Ms Lock continued to discuss what should be said to the Police.

8On 25 March 2021, at 9.58 am, you called Ms Lock from the prison. The call went directly to voicemail.  You did not leave a message.

9On 25 March 2021, at 10.00 am, you left a message for Ms Lock, saying she had to answer the phone and you needed her to put some money into the prison account.

10On 26 March 2021, you had the following conversation with her when you called her from the prison:

·     She told you she had put in the withdrawal letter to the Magistrate and submitted a 'revoke thing'.

·     You asked Ms Lock if she was still going to go to court on Monday and to 'just go, who gives a fuck what they’re saying'.

·     You asked Ms Lock not to 'speak to this cop anymore' and asked if she was 'still speaking to that cop'.

·     You also said to her that she had to put in a complaint to IBAC as well.

11On 27 March 2021 at 2.59 pm, you called Ms Lock. The call went to voice mail. You did not leave a message.

12On 27 March 2021 at 3.00 pm, you telephoned Ms Lock again and you had a further conversation. During this conversation, you told Ms Lock the following:

·     That you needed her to record a message and to get her iPad.

·     That if you called you needed her to answer.

·     To 'get a signed letter with you withdrawing the charges or whatever you’ve done from the police saying they’ve got all that, and yeah, have you done any of that. What have you done?'

·     Further, that she would have to ring somebody else and that he was not going to get out of gaol. That she was going to have to speak to somebody and tell them what was going on, 'like tonight'.

·     That she was not taking this seriously and that 'you’re out there and I’m stuck in here' and that you were going to be stuck in gaol a long time.

·     That you did not know what 'you were doing out there or fucking what’s going on. I don’t want you seeing [Joe[2]], my brother, fucking no cunt. Don’t speak to [Reggie[3]], none of them. I need to be able to trust you [Georgia]’.

·     And you asked whether she had any paperwork to say she had withdrawn the statements.

[2] A pseudonym.

[3] A pseudonym.

13On 28 March 2021, you again called Ms Lock. The call went directly to voicemail, and you left a message for Ms Lock saying she had to answer the phone and that you needed her to put some money into your prison account.

14On 29 March 2021, at 10.29 am, you telephoned Ms Lock. Part of the conversation included the following exchange.

·     Ms Lock indicated that Police had just attended her house and they were aware that you had been calling her.

·     You asked her whether she had withdrawn the charges and whether she had told Police she had withdrawn the charges.

·     You said that you had now been 'breached for talking'.

Procedural history

15You were charged with these offences in April 2021 by summons. The case proceeded through committal on 29 September 2021. What followed was a series of hearings in the County Court throughout 2022. In September 2022 a listing for trial was provided which was 23 May 2023.

16On 23 May you pleaded guilty on arraignment before me.  The matter was listed as a trial on that day, but notice had been provided the day before that the trial would not be proceeding.  The plea hearing was then adjourned until July, but it did not proceed at that time because no psychiatric report had been obtained.

17On 2 October 2023 I heard the plea and adjourned the matter for a Forensicare report which has now been provided.

18Your plea of guilty can only be classified as a plea at the final opportunity. Nonetheless, it retains some utilitarian value in that the resources of the police, the prosecution and the court were not required for the period the trial was listed. Further, the witnesses were spared the experience of giving evidence.  However, given the lateness of the plea, its contribution to the reduction in the backlog of trials is marginal.  Therefore, in my opinion, the principles in Worboyes[4] have very limited application to your case, but I take into account that by pleading guilty you did free up some time and I was available for other cases.  I accept your plea indicates a willingness to facilitate the course of justice, and inherent in the plea is some remorse, although there is not a great deal of additional evidence of remorse in this case.

[4]Worboyes v The Queen [2021] VSCA 169.

Personal circumstances

19I ordered a Forensicare report in this matter at the request of your counsel, Mr Nikakis.  That report was written by Dr Shakira Kumar. The report sets out your personal history.

20You are 36 years old. You were born in Frankston. Your parents had three sons. You are the oldest. Your parents separated when you were 10 years old. You and your brothers lived primarily with your father but had regular contact with your mother.

21Your mother was diagnosed with bipolar affective disorder and was hospitalised at least six times during your teenage years. On multiple occasions you had to call emergency services for her. You describe one occasion when your mother turned up to your school visibly unwell, embarrassing you in front of your classmates. You were subsequently bullied because of this.

22You did not enjoy school, but you had average grades up until Year 9. You left school in Year 10 and began an electrical apprenticeship with your uncle. You did not finish that apprenticeship but remained working in the industry at various places for several years. You are not sure why you have changed jobs so frequently; however, you did lose jobs on several occasions due to poor attendance.

23In 2012 you commenced a telecommunication traineeship and worked as a linesman until 2017. Your brother and father worked in the same field. They often encouraged you to attend work when you were unmotivated or depressed.

24You stopped working in 2017 due to depression and mental health instability. You have not worked since, and you have relied on social security payments.  

25You have been in relationships most of your adult life. You acknowledged to Dr Kumar that these relationships could be volatile and emotive. You also acknowledge a history of perpetrating both verbal and physical abuse on your partners; the physical abuse you attribute to periods of mental instability.

26You drank alcohol excessively in your twenties until approximately 2009, when you were imprisoned for alcohol-related offending. I take that to be the reckless cause serious injury offence in your prior convictions.

27You have used cocaine, methamphetamine, and ecstasy which you link to periods of depression. You stopped using these substances when you were arrested in 2018. However, you relapsed, before reducing your use again after mental health diagnosis and treatment.

28You have had two significant long-term relationships. The first lasted for four years and ended in 2012. You have a son from that relationship, born approximately six months after the relationship ended. You maintained a close relationship with him for many years, but you have had no contact with your son for the past two years due to an intervention order, initiated by your ex-partner following an overdose in 2021.

Criminal history

29You have a substantial and relevant criminal history. You have two prior convictions for recklessly causing serious injury, one of which was heard in the Frankston Magistrates’ Court in 2008, and another which was heard in the County Court on 25 August 2009. In respect of that matter, you received a sentence of 30 months with a non-parole period of one year and four months. You had earlier received an intensive correction order for the reckless serious injury dealt with in the Magistrates’ Court, which you ultimately breached.  In the end you were sentenced to 85 days concurrent with the County Court sentence for the breach of that intensive correction order.

30You have a prior conviction in 2015 for contravening a family violence intervention order, for which you received a fine. You have a prior conviction in October 2018 for using a carriage service to harass. You were placed on a community correction order for 18 months for that offence. In December 2018, for a further family violence offence, namely persistent contravention of a family violence order, you were fined $2,000.

31In 2020, for criminal damage and committing an indictable offence whilst on bail, you were placed on another community correction order.

32You also have subsequent offences dealt with on 12 August 2021. On that day you pleaded guilty to recklessly causing injury and contravening a family violence intervention order. These were the matters in relation to which you were calling Ms Lock from the Melbourne Assessment Prison thereby attempting to pervert the course of justice. On that same day, the community correction order you received in 2020 was breached and you were placed on another community correction order. 

33On 12 August 2021, you were placed on what appears to be a combination sentence of 146 days and a community correction order.  That Correction order has recently been breached in October, resulting in a sentence of 146 days, covered by the earlier pre-sentence detention; that 146 day is the same as the original period of imprisonment that was imposed on 12 August 2021, and which was declared as PSD on that day.

34You have further outstanding matters in December of this year.

35You have engaged in violent behaviour and family violence offences over quite some time now and the community-based orders imposed by the courts have failed to stop your offending. You have also received past prison sentences.  

36Your prior convictions are relevant to the assessment of your moral culpability for this offending, the weight to be given to specific deterrence, and to the assessment of your prospects of rehabilitation.

37Additionally, it seems to me that prior convictions are also relevant to community protection, and I note that you are still in a relationship with the victim in this matter.  Given your history of family violence offending, I have regard to all those principles in arriving at the sentence that I will impose in this case.

Psychiatric history

38Dr Kumar notes in the Forensicare report that you struggled with your mental health for many years, and that you were diagnosed with bipolar affective disorder (BPAD) and complex post-traumatic stress disorder (CPTSD) in 2021 by a private psychiatrist, Dr Shaun Tampiyappa. You described bouts of depression since your teenage years and told Dr Kumar that you had been treated with anti-depressant medication in the past.

39You also described a history of manic episodes and a period in 2018 when, alongside symptoms of mania, you experienced psychotic symptoms including paranoia. You described an episode in 2020 when you attempted suicide because of paranoid beliefs and taking an overdose of anti-depressant medication. After that you commenced cognitive behaviour therapy with a psychologist, and it was at that time you were diagnosed with the bipolar affective disorder. You were placed on anti-psychotic medication and a mood stabiliser. You have been compliant with that treatment since then, other than for a brief period when you stopped taking the medication in 2022.

40Your complex post-traumatic stress disorder is said to stem from your developmental experiences of having to care for your unwell mother.

41It does seem from the history you gave to Dr Kumar that you had a less than ideal upbringing with your mother and I have taken that into account in sentencing in this case.

42You told Dr Kumar that you attempted suicide by prescription medication just before your incarceration in relation to these matters.

43You have never been hospitalised for mental health issues, and you have no history of involuntary treatment under the Mental Health Act.

44Dr Kumar accessed your health records, and they revealed there was a brief episode of care with the Crisis Assessment and Treatment Team in late December 2020 and early January 2021. You were noted to be experiencing psychotic symptoms such as paranoia at that time. You declined further mental health support. You have also had contact with the Cranbourne Area Mental Health Service in March 2021. At that time, a psychiatrist said that you were not experiencing acute psychotic or mood disorder and you were diagnosed with an adjustment disorder with depressed mood and anxiety in the context of the earlier incident in January.

45Your Justice Health record confirms contact with prison mental health services since March 2021. You were seen by a nurse on 5 April 2021 after you wrote a letter disclosing suicidal thoughts, but a review in June 2021 indicated a suspicion that you were seeking sedating medication rather than suffering from depression.

46Based on his assessment of you, Dr Kumar said she believed that the diagnosis of bipolar affective disorder was met. She thought it was less clear that you meet the criteria for complex post-traumatic stress disorder. At the time of the assessment, you were not experiencing the core symptoms of post-traumatic stress disorder. She said it was reasonable though to accept that you experienced some post-trauma symptoms in the context of traumatic childhood experiences.

47She said your bipolar affective disorder is in remission. You continue to receive medication and support from prison mental health services.

48Reviews from clinicians shortly after your incarceration were not consistent with presentation of mania or acute psychosis but there is an acknowledgement of depressed mood and difficulties coping with your circumstances.

49Dr Kumar says in her report your risk of reoffending can be reduced by treatment for your bipolar affective disorder. You will require mood-stabilising medication on a long-term basis. You should have this either in a custodial or a community setting.

50She says that if you re-join the workforce, reconnect with your son, these would be beneficial factors to your rehabilitation.  Further, psychological therapy established through a mental healthcare plan would be of assistance. Drug and alcohol counselling to maintain abstinence in the face of further stressors is advised.

Prospects of Rehabilitation

51Having regard to the psychiatric factors and your criminal history, I can only take a guarded view of your prospects of rehabilitation.  However, your history is not such that I regard your prospects as bleak, and it seems to me that if you can do the things recommended by Dr Kumar, namely re-joining the workforce and re-connecting with your son, and some psychological therapy is established, you will have reasonable prospects of rehabilitation.  Obviously, you need to stay away from illicit substances and look after your psychological health.  You will need to guard against further family violence offending, which has been repetitive in your case.

Gravity of the Offences

52The offence of attempting to pervert the course of justice carries a maximum penalty of 25 years, reflecting its seriousness.

53In the case of DPP v Oksuz [2015] VSCA 316 the Court of Appeal found a sentence of six months for attempting to pervert the course of justice to be inadequate and increased the sentence to four years. Kyrou JA said of this offence:[5]

'The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice.  It does so because it involves an offender seeking to deter witnesses from giving evidence — or giving truthful evidence — in court proceedings.  Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown’s ability to secure a conviction against an accused person and thus bring him or her to justice.  The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.'

[5] DPP v Oksuz [2015] VSCA 316 [99].

54Whilst Oksuz was a significantly more serious example of attempting to pervert the course of justice than this offence, those principles are obviously applicable to this offending.  The court also said that the seriousness of the offence the subject of the attempting to pervert the course of justice, was relevant to the gravity of the attempting to pervert the course of justice offence[6].

[6] Ibid [10].

55In the case of DPP v Carter, which I discussed with counsel this morning, a similar offence to yours, resulted in the Court of Appeal upholding a sentence of two years' imprisonment.[7]  Carter was a more serious example of this offence, in my view, and as much was conceded by the prosecutor, Mr Malik, this morning. 

[7] DPP v Carter (2020) VSCA 156.

56In this case the offence that you were trying to have withdrawn was a family violence offence involving reckless cause injury and contravention of a family violence order to which you eventually pleaded guilty and received a prison sentence combined with the correction order.  Given your criminal history that was a serious offence and that is how you perceived it.  Your conduct was persistent and sustained, taking place in five phone calls over seven days.  Even though the victim had told you she had been to police and had made a statement of no complaint, or something similar, you sought to bolster your chances of the police withdrawing the charges by instructing her on the steps that you believed were necessary, suggesting reasons she might put forward as to why the statement was incorrect.  You offered multiple explanations to her that she might put forward to the police.  This was an attempt to have her lie to persuade police that what she had alleged was untrue.  You knew what you were doing and your culpability for that offence is significant.  General deterrence must carry significant weight in deciding the appropriate sentence for an offence that does strike at the heart of the justice system.  Having regard to your prior convictions, specific deterrence is also significant.  I must also denounce your conduct by the sentence that I impose.

57As to the contravention of the family violence order, you were there in prison for a family violence offence and then served with an order precluding you from contacting the complainant, but this failed to stop you contacting her.  You have relevant prior convictions for family violence offending, specific deterrence and denunciation are again important for such an offence.

Totality

58In deciding the amount of cumulation between the charges, I have also taken into account that the conduct which constitutes the attempt to pervert the course of justice is also part of the contravention offence and I have had regard to the totality principle which requires that the overall sentence must be just and proportionate to the total criminality of your offending. 

Sentence

59Looked at overall, your offending occurred in the context of a family violence situation which is another aggravating factor of the offending in this case.

60Your counsel, Mr Nikakis, submitted that a combined sentence of a period of imprisonment with a correction order was appropriate for this offending and the prosecution submitted that only a head sentence and a non-parole period met the purposes of sentencing.  I agree with the submission of the prosecution in this case.

61The sentences I impose are as follows:

62For Charge 1 of contravening a family violence intervention order, you are sentenced to a period of imprisonment of six months.

63For Charge 2 of attempting to pervert the course of justice, you are sentenced to a period of imprisonment of 18 months.  Two months of the sentence on Charge 1 is cumulative on the base sentence.

64That makes an overall total sentence of 20 months.

65I fix a non-parole period in this case of 12 months.

66Pursuant to s6AAA, I indicate that but for your plea of guilty I would have imposed a sentence of 30 months with a minimum of 22 months.

67Pursuant to s18 of the Sentencing Act, I declare 130 days of pre-sentence detention to be deducted administratively for the sentence that I have imposed.