Director of Public Prosecutions v Erkens-Goss

[2023] VCC 833

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00358

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER ERKENS-GOSS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2023
DATE OF SENTENCE:	24 May 2023
CASE MAY BE CITED AS:	DPP v Erkens-Goss
MEDIUM NEUTRAL CITATION:	[2023] VCC 833

REASONS FOR SENTENCE

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Subject: Subject: Criminal law - sentence    

Catchwords:              Plea of guilty to one charge of attempting to pervert the course of justice – response to subpoena in Supreme Court defamation case contained lies - co-accused pleaded guilty to two charges of attempting to pervert the course of justice and one charge of perjury – sentenced to 12 month CCO – co-accused was principal offender – parity. 

Sentence:                3 year non-conviction undertaking 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Office of Public Prosecutions
For the Accused	Ms M. Walker	Mel Walker – Criminal Law

HER HONOUR:

1Peter Erkens-Goss, you have pleaded guilty to one charge of attempting to pervert the course of justice.

2On 2 February this year I sentenced the co-accused, Karel Zegers, to a 12 month non-conviction Community Correction Order after he pleaded guilty to two charges of attempting to pervert the course of justice and one charge of perjury. 

3The background to the offending is that in mid‑2015, members of the board of directors of the Sporting Shooters Association of Australia commenced defamation proceedings against Mr Zegers in the Supreme Court of Victoria.  Mr Zegers had sent a series of emails, the subject to the defamation case.  It was found that the emails had been sent from email addresses associated with websites set up by you.  The plaintiffs in the defamation case subpoenaed you.   

4Emails between you and Zegers in November and December 2017 disclosed that Zegers suggested you both tell lies about any involvement when responding to the subpoena.  You did that and stated that another person owned the websites.  Zegers informed you by email that he had received and was still receiving legal advice about the response and provided you with a draft response for you to comment.

5On about 11 January 2018, you used this draft to respond to the subpoena claiming that the websites were owned by a person named Steven operating an email address by the name of SteveK64.   The response further stated that the owner of the websites won them as part of an online competition and that the competition was automated and that you had no interaction with the owner.  You were then excused from giving evidence in the Supreme Court proceeding.  

6The response you provided was false and misleading in that it falsely stated that some other person owned the websites and that you had not interacted with that owner.  The response therefore had a tendency to pervert the course of justice in that it would have misled the court as to the author of the defamatory imputations. 

7You took part in a record of interview on 8 December 2022 during which you made full admissions.  You were charged by way of summons on 23 December 2022 and you pleaded guilty at a committal mention on 3 March 2023.  

8No explanation has been offered for the four year delay which occurred despite the fact that the judge presiding over the defamation case identified you in his findings, dated 16 August 2018, as being involved in the defamation.  Your counsel today described this as an inordinate delay, which is conceded by the prosecution.  I take it into account and place considerable weight upon it.   

9I also take into account that you were not the instigator of the offending and that Zegers was the primary offender.  He persuaded you to lie and placed you under pressure to do so and provided you with a draft document as a basis for it.  Zegers was charged and pleaded guilty to more serious offending.  

10You were aged 28 at the time of the offending; you are now 33.  You are employed in IT as an operations engineer.  You have worked in that industry since leaving school at the age of 15 and your education has not progressed since then despite some attempts to do so.  You have no previous convictions nor has there been any subsequent offending.

11Your plea of guilty means you are entitled to a discount on your sentence for having avoided a trial, with the expense and inconvenience otherwise involved.  

12Although the COVID-19 pandemic is officially over, the effects are still felt by the courts with a significant backlog of cases and so the plea has high utilitarian value than it otherwise would have.

13Taking responsibility for your offending by pleading guilty may also indicate positive prospects for rehabilitation.  You have the benefit of your efforts to reconnect with members of your family of origin and you are not burdened by issues such as drug addiction.

14You have had struggles with depression in recent years, described in a letter from your fiancé, Jessica Forder.  She speaks of your remorse and your search for help with your mental health, leading you to see a psychologist some three years ago.  An incident of self-harm had occurred in 2017 and a more recent attempt in 2022 resulted in your hospitalisation.  The psychologist, Mr Mauriello, recommends ongoing therapy which was not able to continue previously because of the expense.  

15Ms Forder states that your current employment and other similar work requires security clearances, with the inference that a criminal conviction might jeopardise your compliance with such a requirement.

16Your parents separated when you were a child and you remain estranged from your mother, despite having attempted to repair the estrangement some years ago.  You stayed overnight with your mother who at the time was in a relationship with Zegers.  You were told that Mrs Zegers was your godmother and you assumed that Mr Zegers was therefore your godfather.  This led you to place your trust in him at the time of the setting up of the email addresses and the eventual decision of yours to lie.

17The offence of attempting to pervert the course of justice is a serious offence because of the potential to undermine trust in the justice system.  The maximum penalty is 25 years' imprisonment or a fine of 3,000 penalty units which translates to $475,710.  The need for general deterrence and denunciation by the court flow from this.

18In this instance the attempt was unsophisticated, as observed by the trial judge presiding over the defamation case, and your role was not as the primary offender.  Planning for the offence occurred over about six weeks, not an insignificant time, but you were not attempting to avoid personal liability nor was there to be any gain for you.

19The prosecution submissions on  sentence address the issue of whether the attempt to pervert the course of justice in this case should be regarded as less serious because the attempt did not result in the court being led into error.  The fact that this did not occur, submitted the prosecution, should not result in a less severe sentence, bearing in mind that the offence of attempt carries the same maximum penalty as the offence of perverting the course of justice. 

20Decisions in other cases acknowledge the relative importance of the success or otherwise of the deception and recognise that the circumstances of the particular case remain important also.  That leads to the observation that while parity is a relevant principle, the particular circumstances of the offender and his role/her role are to be taken into account in treating like cases alike.  

21I have already noted the differences between your role and that of Zegers', yours being considerably less serious.  Not only was Zegers the instigator but he also pleaded guilty to three charges in total.  There is good reason to impose upon you a sentence equally as lenient as that imposed on Zegers or indeed more so.  Your prospects for rehabilitation are very good in that you have stable employment, a stable relationship and your mental health has improved and is being addressed by a mental health plan.

22While the prosecution’s submission as to sentence proposed that a Community Correction Order be imposed, the disparity between you and the co-accused was conceded.  While both a fine and an adjourned undertaking to be of good behaviour allow for a conviction to be avoided, the circumstances of this case warrant the latter course. 

23Accordingly, I shall place you on a three year adjourned undertaking to be of good behaviour with no conviction recorded.  That is a considerably long period, and it shall serve as a reminder to you of the importance of abiding by the law.  The need for specific deterrence is reduced by your circumstances and general deterrence is served by a lenient disposition in the light of the pressure placed upon you.  If you had pleaded not guilty, I would have imposed a Community Correction Order and a fine.

24Are there any other matters, first of all, Mr Tamburro?

25MR TAMBURRO:  No, Your Honour, that is everything, thank you very much.

26HER HONOUR:  Thank you, Ms Walker?

27MS WALKER:  No, Your Honour, if the court pleases.

28HER HONOUR:  There is the undertaking for him to sign.  Would you like to approach the dock with my associate?

29MS WALKER:  I was just going to say, may he come down from the dock, but I will approach, thank you.

30HER HONOUR:  You can, yes, thank you.  That completes everything, thank you.

31MS WALKER:  As the court pleases.

32MR TAMBURRO:  As the court pleases.

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