Director of Public Prosecutions v Emery

[2021] VCC 1346

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01594

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELA EMERY

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2021
DATE OF SENTENCE:	10 September 2021
CASE MAY BE CITED AS:	DPP v Emery
MEDIUM NEUTRAL CITATION:	[2021] VCC 1346

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Offender	Ms. K. Temperley

HIS HONOUR: 

1Angela Emery, you are to be sentenced for one Charge of attempting to pervert the course of justice.  The maximum sentence is 25 years’ imprisonment.  You are also to be sentenced for the summary of offence of committing that indictable offence whilst on bail.  The maximum penalty is three months’ imprisonment.

2You pleaded guilty before me on 8 September.  When interviewed by police on 12 February 2021, you made full admissions.  The committal went by hand up brief after which you pleaded guilty.  The matter has been listed for plea hearing in this court only seven months after the offending. 

3You receive the benefit of your early plea of guilty and that high level of cooperation in the proceeding.  Your plea has facilitated the interests of justice, accepted responsibility, and expresses remorse. 

4At your plea hearing, also on 8 September, Mr Cordy for the Crown tendered a written Crown opening.  Ms Temperley for you tendered the forensic psychological report of Dr Aaron Cunningham, dated 6 September 2021.  She also provided written submissions on sentence.  That included reference to a number of comparative sentencing cases.

5The circumstances of your offending are set out in the tendered prosecution opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

6At the time of offending February 2021, you were living as now at in Kyabram.  You are aged 36.  Your life has declined in the last several years in the context of an abusive relationship, Child Protection involvement with your children, and developing drug dependence.  You were introduced to methylamphetamine in your early 30s by that abusive partner.  Your five children live with others.  I accept that your situation should be seen as a relevant context for the offence before me.

7On 30 January 2021, your home was the target of an aggravated burglary committed by one Zachary Isley, likely together with other offenders.  Damage was caused and property stolen.  Isley is the brother of your ex-partner who died of a heart attack in October 2020.  I am prepared to presume that both were drug users.

8On 30 January you told police that Zachery Isley was the primary offender.  However, on the following day you were contacted by an associate named Mulcahy, who asked that you blame others.  He promised to ensure repair of the damage to your home.  I also accept that Mulcahy’s request had a sense of implicit force, or at least authority; that he was a person who could not readily be ignored.  A drug milieu is the highly likely situation.  Part of your motivation was also a wish to protect Isley, who had been impacted by his brother’s death. On 2 February you told police that your sister and her ex-partner committed the aggravated burglary, motivated by a report by you to Child Protection about her children.  You did not identify a real person as your sister’s ex-partner.  All of this was false. 

9You persisted in it by further communication with police; for example, giving contact details for your sister and with your sister.  Particularly on 11 February there was conversation between you and her in which you discussed detail of the false version told and to be told to police. 

10I find it to have been a markedly flawed and clumsy enterprise.  Unsurprisingly, your sister did not take responsibility for a crime for which she had no connection at all.  She provided statements to police of what had happened between you and her.  On 12 February you were arrested.  Your mobile phone, in fact, contained evidence of the relevant conversations between you and your sister, and also with Mulcahy.  The messages of Mulcahy included that he required proof of your false version to police.  That had caused you to record a phone conversation with the informant earlier in the week.

11The offence seems to me almost ludicrously doomed to failure.  Within a week Isley was charged and has been sentenced to imprisonment for the aggravated burglary.  I was told that there was not enough evidence to charge Mulcahy for his role in your offending.

12As stated, you are now aged 36.  You were raised in the Shepparton area and have three younger sisters.  Your parents are separated.  You have limited contact with your family.  You left school during Year 11 and began TAFE study in automotive care and business.  Employment has included in retail, food produce and kitchen work.  For a time, you were a volunteer firefighter.  Work has been interrupted by pregnancies and childcare.  You have not been employed since 2014.  That is in the context of personal and relationship difficulties, and drug use.  You state that you have been living mainly on your own since 2016, when your children were finally taken from you.  Your five children have two fathers.  The four youngest now live with their father.  Your oldest, who is 17, lives with grandparents in Geelong.  You have contact with her.

13A relationship with another man was physically abusive.  In 2016 he was imprisoned for assault, which hospitalised you.  It was in this relationship that you began using methylamphetamine.  He is not the partner who more recently died in 2020.

14Your criminal record in Victoria and New South Wales states court appearances between 2017 and 2019 for dishonesty and drug possession offences.  There are a number of New South Wales driving offences.  On 8 September I was told of pending matters in the Magistrates’ Court.  They are for driving offences including driving whilst disqualified, theft, and trafficking in a drug of dependence.  I was told this morning that that magistrate has deferred sentence and requested an assessment of your suitability for a community corrections order.   These pending matters relate to offending which pre-dates this offence.  The summary offence before me is the commission of this indictable offence whilst on that bail. 

15I accept that the pattern and nature of your prior offending, which began when you were about 30, reflects to the decline in your life since then.  There has been a particularly dysfunctional relationship and its aftermath, the loss of your children, and drug abuse.

16Consistent with this, the psychological report of Dr Cunningham states symptoms of drug dependence and depression.  You suffer grief for the loss of your children and also deceased partner.

17The crime attempting to pervert the course of justice is a very serious one, cutting, as it does, at the management and integrity of the criminal justice system.  It attracts a long maximum sentence.  It is also a crime which has a wide range of individual circumstances, impact and criminality.  Your offending makes relevant sentencing considerations and purposes of moral culpability, deterrence, particularly general deterrence, condemnation of what you did, and proportion of punishment of the offence and its circumstances.   Attempting to pervert the course of justice usually requires a sentence of imprisonment.  At its higher more serious end, a sentence of substantial length. 

18However, in your case, there are a number of mitigating and moderating factors.  They include the following:

19(1)   Your plea of guilty and cooperation;

20(2)    Your personal history and circumstances as I have described them;

21(3)  I find these  (what your situation had become) to be relevant to assessment of the culpability of your offence and what sentence should be imposed.  The ineptitude of it does not in itself reduce moral culpability or excuse it.  I do see it as consistent with your explanation of Mulcahy’s role.  A further example of this is your recording of the conversation you had with the informant.  Mr Cordy properly pointed to your persistence in the offending.  However, bearing all relevant aspects in mind, I see your offence to be towards the low end of seriousness for this crime.

22(4)    One must be guarded about your prospects for rehabilitation.  Much will depend upon your capacity to reform from drug abuse and move away from that life and that community.  I agree with Dr Cunningham’s assessment that your rehabilitation is an important need.  Assistance to that is in the community’s interest.

23I have decided that in accordance with what is stated in s5 sub-s4 of the Sentencing Act, the relevant and necessary sentencing purposes here can be met by a sentence not requiring imprisonment.  I am going to impose the sentence of a community corrections order.  It should contain rehabilitative conditions, but also those which are punitive, attempting to reflect the seriousness of the offending and the innate seriousness of the crime you have committed.  You have been found suitable for such an order. 

24I have had reference to the comparative sentencing cases provided.  However, I also bear in mind the need to sentence individually to your case.

25I sentence you as follows:  on the indictable offence of attempting to pervert the course of justice and on the summary offence of committing that whilst on bail, I convict you and impose a community corrections order of two years duration.  The usual terms apply. 

26I impose the additional conditions that you perform 250 hours of unpaid community work over that time.  Fifty hours of the program work can be set off against that in accordance with the relevant provision of the Sentencing Act. 

27There will also be supervision.  There will be a condition of drug assessment and treatment, and a condition of assessment and treatment for mental health.

28Under s6(AAA) had you not pleaded guilty, I would have imposed a sentence of six months imprisonment.

29Are there other orders that need to be made, Mr Cordy?

30MR CORDY:  No, I don’t believe so, Your Honour.

31HIS HONOUR:  All right, when that gets printed out, I mean the community corrections order, I’ll put it formally as I’m required to do to Ms Emery, and what’s the appropriate procedure here, Ms Temperley?  Where are you?  Should it be sent to you?  How does it get to Ms Emery?

32MS TEMPERLEY:  I’m certainly happy to facilitate.  I’m based in Bendigo.  Ms Emery is obviously located in Kyabram.  There might be the question of her attending Echuca Magistrates’ Court.  I believe that would be the nearest appropriate place to sign that document.  Otherwise, if Ms Emery can print and sign, I’m happy to facilitate returning that document to the court.

33HIS HONOUR:  All right, so we should send it to you, should we?

34MS TEMPERLEY:  Thank you, Your Honour.

35HIS HONOUR:  You’re happy with that, Mr Cordy?

36MR CORDY:  Yes indeed, Your Honour.

37HIS HONOUR:  I’ve just noticed, looking at the document I have here.  I apologise, Ms Kozaletto.  Have you been linked in, and have you heard all of that?  Maybe this is an old document.

38MR CORDY:  I noticed earlier Ms Kozaletto appeared in the side bar, Your Honour, as being present.

39HIS HONOUR:  Right.

40MR CORDY:  But whether she still is or not, I don’t know.

41HIS HONOUR:  She’s cut herself off.  So she was linked in.  All right, well if anybody gets the opportunity they can apologise on my behalf that I didn’t raise it earlier.  Is it necessary to put this on the media portal?  When we’re asked to do it.  We can do it retrospectively if we’re asked to do it.  I won’t do it unless I’m asked to do it.  But if we’re asked to do it, we can do it then.

42All right, whilst that’s happening; am I right, Mr Cordy, that the government has removed the restrictions for country areas that include Bendigo?

43MR CORDY:  Yes, Your Honour.

44HIS HONOUR:  Does that mean you can go to the court, or not?

45MR CORDY:  The one I was most interested in was restaurants and pubs, but they’re only allowed to have 10 people inside.  So, I doubt whether they’ll be open.

46HIS HONOUR:  You’ll have to get there early.

47MR CORDY:  If they open.  Look, I’m not sure what ‑ ‑ ‑ 

48HIS HONOUR:  That wasn’t my focus, Mr Cordy.

49MR CORDY:  I know, Your Honour.

50HIS HONOUR:  Does that mean you can now go to the court?

51MR CORDY:  I’m not sure.  I’ll check with the registrar, Your Honour.

52HIS HONOUR:  All right.

(At this stage the court proceeded with another matter.)

53HIS HONOUR:  All right, now, Ms Emery.  You can see and hear me again?

54TIPSTAFF:  We just lost her, judge.  She was there up until about a second ago.

55HIS HONOUR:  Yes, well let’s get her back because I’ve got to speak to her.

56MS TEMPERLEY:  I’m aware that on Wednesday, Your Honour, the reason she dropped out was that she ran out of data on her phone.  I was advised this morning that she’d made sure it was stocked up so that issue wouldn’t occur.

57HIS HONOUR:  Yes.  Ms Emery, can you see and hear me again?

58OFFENDER:  Yes, I can, Your Honour.

59HIS HONOUR:  All right, now I’m obliged to go through with you again in a formal way what this order means, so I’ll do that now.  You’ll get a document via Ms Temperley that sets it out, as well.

60On both charges before me you have been convicted, and I am imposing a community corrections order.  It runs for two years; therefore it runs until 9 September 2023, and the relevant community corrections office for you is Echuca, it says here.

61Now, the usual terms are that you do not commit another offence for which you could be imprisoned.  The possession of the smallest amount of methylamphetamine comes within that.  So, you need to know that.

62You must comply with an obligation set by regulation that you do not attend any program or appointment under this order affected by alcohol or drugs, or in possession of illegal drugs. 

63You must report to and receive visits from Community Corrections.  You must report to the relevant Community Correction Centre.  The address is stated here, in Echuca.  Well, it’s not stated here.  Should it be?  You do it by phone, would you?  Yes, all right.

64You must make that contact with the Echuca Community Correction Services within two days of today.  So, that would be by Tuesday, I would have thought.  You must not leave - I’m sorry. 

65You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission to do so.  That you live relatively close to the border means that they - you get discussion with them, can address that in the way they see fit.  You must obey all lawful instructions of Community Corrections.

66The additional conditions are that you perform 250 of unpaid community work over the period, and now, I order that 50 hours of the program work that I will describe in a moment can be set off against that. 

67Further conditions are that you be under supervision of a particular community corrections officer, that you undergo assessment and treatment for drug abuse as directed, and that you undergo mental health assessment and treatment.

68TIPSTAFF:  Judge, sorry.  She just dropped off.

69HIS HONOUR:  Yes.

70TIPSTAFF:  She moved her phone and she dropped off.  She may be still here.

71HIS HONOUR:  Can you say if you can still hear me?  Can you still hear me, Ms Emery?

72OFFENDER:  Yes I can, Your Honour.

73HIS HONOUR:  And did I cut out at any stage?

74OFFENDER:  Yes I can, Your Honour.

75HIS HONOUR:  Sorry?  You heard all of what I had to say?

76OFFENDER:  Yes, I did.

77HIS HONOUR:  All right, good.  So, do you understand what I’ve said to you about this order, and do you agree to it?

78OFFENDER:  Yes I do, Your Honour.

79HIS HONOUR:  All right, well I’m going to sign it and then it will be sent to you through Ms Temperley, and you’ll need to sign it as well.  All right, so we’ll give that to you.  So, that’s it for this matter.

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