Director of Public Prosecutions v Ellard

[2019] VCC 1612

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01307

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAVIN LAWRENCE ELLARD

‑‑‑

JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2019
DATE OF SENTENCE:	4 October 2019
CASE MAY BE CITED AS:	DPP v Ellard
MEDIUM NEUTRAL CITATION:	[2019] VCC 1612

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW
Catchwords:              Sentence – Attempt to pervert the course of justice – Plea of guilty
Legislation Cited:     Sentencing Act 1991

Sentence:1 year and 10 months imprisonment with a non-parole period of 10 months imprisonment; 1 day pre-sentence detention; Forensic sample order made; 6AAA declaration: 4 years imprisonment with a non-parole period of 3 years imprisonment.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	Solicitor for the Director of Public Prosecutions
For the Offender	Mr J. Miller	Balmer & Associates

1HIS HONOUR:  Gavin Ellard.  On Friday 13 September 2019, you pleaded guilty to one charge of attempting to pervert the course of justice. 

2Tendered as Exhibit A and read aloud in court was the summary of prosecution opening upon a plea.  In summary, you were arrested on 5 February 2019.  In respect to allegations of assaulting your de facto partner, Ms Carlsen.  You were remanded in custody.  On the same day a family violence intervention order was granted against you naming Ms Carlsen and your son, Isaac Ellard, as the affected family members. 

3Whilst you were in custody, you were in regular contact with your mother, Bernadette Logozzo.  During telephone calls on 13, 18, 19, 20 and 21 March and 3 April 2019, you encouraged your mother to contact Ms Carlsen with a view to having Ms Carlsen withdraw her support for the prosecution of you.  Extracts of the relevant telephone conversations are set out in the opening and I will not repeat them.  It is sufficient to say that you made concerted efforts to have your mother contact Ms Carlsen in order that Ms Carlsen withdraw her statement of complaint and not support the prosecution of you.  Your efforts included coaching your mother on how to approach Ms Carlsen and how to couch her entreaties to Ms Carlsen to withdraw her support of the prosecution.  Your efforts were met with success because in late March 2019, Ms Carlsen advised Victoria Police investigators that she no longer wanted to provide evidence against you. 

4On 5 April 2019, you were charged on summons with attempting to pervert the course of justice.  And you were ordered, I beg your pardon, and you were offered the opportunity of participating in a record of interview under caution, but you declined to be interviewed.  A filing hearing was conducted on 9 April 2019 and subsequently, you were formally remanded in custody in respect to the instant offending at the committal mention of the matter of 3 July 2019.  Accordingly, you had spent 72 days by way of presentence detention in respect of to the instant offence as at the date of your plea. 

5The maximum penalty for attempting to pervert the course of justice is 25 years imprisonment.

6Your criminal record was filed with the Court and admitted by you.  It reveals that you have 88 convictions or findings of guilt from 20 appearances.  You first commenced to offend at or about the age of 19 years.  You are presently 38 years of age, with your last prior conviction occurring on 28 August 2018 being a contravention of a Community Corrections Order granted in respect of you on 10 October 2016 for drunk and driving offences.  Generally speaking, your prior convictions are for driving offences, dishonesty offences, drug offences, failing to comply with community based orders and suspended sentences, bail offences, property damage, and one conviction for violence.  You can be accurately described as a recidivist.   

7In respect to your personal circumstances, you are 38 years of age and grew up in the Epping area.  You were educated at the Epping Primary and Secondary Schools.  There were no issues of family violence of substance abuse in your family home as a child.  However, your parents separated when you were 15 years of age.  Your mother re-partnered when you were 17 years of age and you have had a reasonable relationship with your mother's new partner since then.  You attended school to Year 9, however, in that year or immediately before it, you commenced to use drugs and you were expelled in Year 9. 

8You left your family home at 17 years of age and started on the job training as a plasterer and worked as a plasterer for the next 10 years.  In respect of your drug abuse, you first used heroin at 17 years of age and have continued to do so all your life.  Your addiction to heroin affected your work and has had an adverse effect on your employment history.  You have been on a methadone program for 20 years and currently take 70 mls daily while in custody. 

9You have had one significant intimate relationship and that is with Ms Carlsen, the complainant in the Magistrates' Court proceedings.  And the person protected by the Family Violence Intervention Order.  You have had an on and off relationship with her for some 18 years.  You have a two year old son to her named Isaac. 

10I regard your offending as a serious example of the offence of attempting to pervert the course of justice.  The transcripts of the relevant conversations demonstrate that you were intent on putting pressure on Ms Carlsen to withdraw her statement and not to be a prosecution witness against you.  These attempts were successful in that Ms Carlsen notified the police that she no longer wished to be a witness in the prosecution against you. 

11In my opinion, the principles of general deterrence, public denunciation and just punishment and in light of your lengthy prior criminal history, specific deterrence all have a role to play in the exercise of my sentencing discretion.

12The application of those principles must be tempered to some extent by the fact of your early plea of guilty and the benefits which flow to you from that being that it has utilitarian benefit and it is some evidence of your remorse.  

13By this sentence, I must punish you, publically denounce your conduct and deter you and others from committing these kinds of crimes.  Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to 1 year and 10 months' imprisonment and I fix that period of 10 months' imprisonment as the period that you must serve before you will become eligible for parole.

14On 2 October 2019, His Honour, Mr Bentley, Magistrate, sentenced you to five months' imprisonment as an aggregate sentence in respect of five charges of unlawful assault.  He declared 239 days by way of pre-sentence detention, a period of just over eight months.  Accordingly, there is three months dead time served by you in respect to that sentence. 

15This morning, your sentence was adjourned until 2 pm so that application could be made to the learned Magistrate to amend his order in respect to his declaration of presentence detention.  However, he declined to do so.

16Section 18(2)(d) of the Sentencing Act 1991 reads:

'Sub-section (1) does not apply to a period of custody previously declared under this section or s.35 as reckoned to be a period of imprisonment or detention already served under another sentence of imprisonment or detention or court secured treatment order imposed on the offender.'

17To my mind, I am prohibited from declaring presentence detention save for that period between 2 October and today, which amounts to one day's presentence detention. 

18It is my intention, having been appraised of Magistrate Bentley's sentence to make no order for cumulation of the sentence I am to impose on you with the sentence that he imposed upon you.  Therefore, I have reduced the sentence that I otherwise would have imposed by a period of eight months' both as to the head sentence and minimum term to give effect to my intention.

19Accordingly, I declare that you have served one day by way of presentence detention, not including today. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a term of four years' imprisonment with a non-parole period of three years' imprisonment.

20Are there any matters arising out of that sentence?

21MR MILLER:  No, Your Honour.

22MS LOCKE:  No, Your Honour.  There's just a forensic sample order that I believe was eLodged.

23HIS HONOUR:  Have you got that?

24MR MILLER:  Yes, Your Honour.  (Indistinct words).

25HIS HONOUR:  What's your attitude to this application, Mr Miller?

26MR MILLER:  No submissions to make about that, Your Honour.

27HIS HONOUR:  Okay.  Mr Ellard, would you please stand up. 

28The Crown have made application for a forensic sample, being a scraping from the mouth.  I have made that order because of the seriousness of the circumstances of your offending warrant the order being made.  Your prior convictions are such as to warrant the making of the order and the granting of the order is in the public interest.

29I must inform you that if at the time of request, you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted.  I hand down a copy of that order.  And we'll email the final orders to you.

30MS LOCKE:  Yes, Your Honour.

31HIS HONOUR:  We'll email the final answers to counsel.

32MS LOCKE:  As Your Honour pleases.

33HIS HONOUR:  Would you remove the prisoner, please.  I'd like to thank you for your assistance.  I'll stand down now until the trial's ready.

‑ ‑ ‑