Director of Public Prosecutions v Farrugia

[2019] VCC 505

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01097

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT FARRUGIA

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2019
DATE OF SENTENCE:	10 April 2019
CASE MAY BE CITED AS:	DPP v Farrugia
MEDIUM NEUTRAL CITATION:	[2019] VCC 505

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty –  Attempt to pervert the course of justice
Cases Cited:	Boulton v The Queen [2014] VSCA 342; R v Healy (unreported, Court of Appeal, 4 August 1997); DPP v Dalgliesh (a pseudonym) (2017) ALJR 91; Semaan v The Queen [2017] VSCA 279; Johns [2010] VSCA 63; Carey [2007] VSCA 319
Sentence:	Convicted and sentenced to two and a half years’ imprisonment with a minimum term to be served before being eligible for parole of 18 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Hersch	Office of Public Prosecutions
For the Accused	Mr A. Wolf	Papa Hughes Lawyers

HIS HONOUR:

1Mr Farrugia is aged 33 having been born on 28 December on 1985.  He is a carrier driver.

2At the hearing below, the DPP was represented by Mr Hayward and Mr Morgan appeared on behalf of Mr Farrugia.

3Today, Ms Hersch appears on behalf of the Director and Mr Wolf on behalf of Mr Farrugia.

4The matter came on for trial on 1 April 2019.  The matter resolved on that day, Mr Farrugia was arraigned and pleaded guilty to the one charge on Indictment No.H13292493.2.

5The plea was set down for a hearing for the following day, being 2 April 2019.

6The charge is a common law offence of attempt to pervert the course of justice.  The maximum penalty imposed is one of 25 years, which is indicative of the Parliament and the community's view as to the seriousness of this crime.

7The period of offending was some 22 days, from 06/11/17 to 28/11/17.  The particulars for the plea were that he had instructed the victim, Lisa Jessop, to change her police statement which she had made on 18 June 2017, that he had instructed her to make a false statement and had threatened to assault her if she did not comply.

8Mr Morgan accepted that the prosecution summary (Exhibit A) were the facts upon which I am to sentence Mr Farrugia.

9As to the offences, to which this crime relates, Mr Farrugia was in fact sentenced subsequently in the Magistrates' Court on 27 March 2018 to an aggregate sentence of six months' gaol for a number of charges including recklessly cause injury and assault involving the victim, such offending having taken place on 17 June 2017.

10Such sentence expired on 20/03/18.  Mr Farrugia has been on remand since that date, and as just indicated and agreed by counsel, the period of time served on remand by way of pre-sentence detention to this matter is 337 days.

11Exhibit D was the sentencing submission of the Crown.  The Crown stressed the need for general deterrence to be given significant weight in this type of crime.  It was also noted that this crime was aggravated, being committed both while Mr Farrugia was on bail for the offences to which I have referred and was subject to a family violence order.

12There was no issue put by Mr Morgan as to the appropriate sentence being a period of imprisonment.  The submission made by Mr Morgan was that I should consider the period served as being sufficient in all the circumstances, and to release Mr Farrugia on a combined sentence by way of such served period of imprisonment and a community correction order.

13The prosecution opposed such order, and I indicated to Mr Morgan in the plea that it was my view, given the seriousness of the crime, that such a sentence was not appropriate, despite taking into account the principles set out in Boulton v The Queen [2014] VSCA 342.

14In the victim impact statement, dated 1 April 2019, Exhibit C, there is a need of course to discriminate as best one can the impact upon her, given that Mr Farrugia has already been sentenced for the assaults upon her.  The victim impact statement was general and included impacts upon her generally, not only precisely of this crime.

15Mr Farrugia has been sentenced and served his sentence for the crimes themselves.  However, I do accept as genuine the particular concern she had, the fear that she suffered leading her to leave the home the night before the matter was to be heard because of fears for her own safety.

16Exhibit A, which was the prosecution opening, detailed the charge and such was accepted by Mr Morgan.  I accept that on the night before the proceedings, it appears that Mr Farrugia was impacted by the drug, ice.  The offences were committed originally against the victim on 17 June 2017.  He had attended at a contest mention and pleaded not guilty.

17Subsequent of that time, I accept that the victim had voluntarily returned to live at his mother's home, and the family violence order was amended accordingly.  He told the victim - as I have detailed, he wanted her to change the statement, he wanted in particular her to indicate that he had only hit her once, that she had lied about the other circumstances.  The victim questioned how she could so lie and change her statement.

18While at the mother's home, Mr Farrugia persistently requested her to change her statement and ultimately threatened to bash her until she learned her place.  As I said, the victim fled the night before the date of the contested hearing, indeed Mr Farrugia was arrested at such hearing on 29 November 2017.

19The prior offences of Mr Farrugia are somewhat concerning.  He comes before this Court, now aged 33, with some 14 years of offending.  Involved in that offending are a number of serious assaults for which he has been given gaol, in particular in July of 2015, he was given nine months for intentionally cause injury, threat to kill, unlawful assault, nine months with a community correction order of 18 months and also a breach of a family intervention order.

20In September 2009, he had a charge for assault police.  In June 2009, he had two months' gaol for recklessly cause injury.  In June 2008, he had an offence for assault police and a serious offence of robbery in January 2006 for which he got six months' gaol.

21As I said to Mr Farrugia, he does not come up to be sentenced again for those matters.  However, they limit the options that the Court has.

22In an unreported decision of Healy, talking of the gravity of such an offence, being a decision of the then Charles JA of 4 August 1997, His Honour said this:

"The administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned."

23I note that following the recent High Court decision in Dalgliesh (2017) ALJR 91, 1072 at [49], that a person of course must be given individualised justice and that relates to sentencing a person for the particular circumstances of the crime they have committed.

24The principles that apply in regard to this crime are that a punishment must be imposed which marks the public disapproval of such a crime.  Specific and general deterrence are principle purposes of sentencing for perverting and/or attempting to pervert the course of justice because such sentences are thought to assist in protecting the administration of justice.

25I also refer to a Court of Appeal decision, reviewing an original decision of Beale J of Semaan v The Queen [2017] VSCA 279.

26In particular, I refer to [39], where the relevant considerations are enumerated.  The paragraph reads as follows,

"Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and so, therefore, as ordinarily necessitating a custodial disposition."

27As I have already indicated, there is no issue from counsel in regard to that.

"The offence is broadly defined, however, and may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending."

28It seems to me that is really saying no more than the principles set out in Dalgliesh.

29The Court of Appeal goes on then to enumerate the circumstances which bear upon the assessment of the nature and gravity of such sentences, as follows:

I."The consequences which the offending was calculated to avoid."

Clearly of concern in this case being that the consequence was to interfere with the proper management in course of justice in regard to the charges for which Mr Farrugia was in fact charged.

II."The time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue."

Fortuitously for Mr Farrugia, that was fairly limited in regard to the particulars of this matter.

III."Whether the deception involved some other person, either as an accomplice or as a victim."

Clearly that did in this case.

IV."Whether there was any threat or violence involved."

Clearly there was.

V."Whether the offence was spontaneous or premeditated."

Clearly it was premeditated.  And, finally,

VI."Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that."

Fortunately, this being an attempt in the circumstances, albeit as is noted, an attempt or completion of such offence warrants the same penalty, there was no completion of the matter and that obviously has impact in regard to the appropriate sentencing.

30The prosecution also tendered (Exhibit E) a series of VSCA summaries.  I accept that those summaries, in particular the cases of Johns [2010] VSCA 63 and Carey [2007] VSCA 319 are of most similarity to this case. Insofar as the Johns case is concerned, as the learned prosecutor put to the Court, the reference apart from its similarity and circumstance, was a general reference to sentences of this type and I quote from [19] of such sentence,

"The offence of attempting to pervert the course of justice is punishable by a maximum sentence of 25 years.  The maximum sentence reflects the facts that the crime imperils the proper administration of the criminal law.  General deterrence is usually given significant weight in sentencing those who commit this offence."

31Obviously, Mr Farrugia, all of those matters are of some import in regard to your sentence.

32Insofar as the plea conducted by Mr Morgan, Exhibit 1 tendered by him was his written submissions.  Those written submissions gave the Court a chronology, and went to the substantial matters that Mr Morgan wanted to put to the Court.

33Also tendered as Exhibit 2 were the positive urine samples that you have recorded; positive in the sense that there was nothing found, one in February of this year and another in March of this year.

34Thirdly, in support of the submission of you seeking to turn your life around, a series of details as to the courses that you had undertaken and finally Exhibit 4 being the CISP report; that report being a consequence of arrangements made in the Magistrates' Court while you were on remand for you to get appropriate assistance in particular in regard to drugs.  That report is dated 3 November 2017.  It is a very positive report.  However, the optimism shown in that report has to be tempered by the fact that this offence takes place 26 days thereafter.

35I have read such report and it is clear that you did take during that period, albeit that you went on to commit this criminality, appropriate steps in regard to your problems with drugs.  Also, you sought assistance with your mental issues of a borderline personality disorder and symptoms of anxiety and depression, in that you attended during the period 11 out of 12 of the scheduled management appointments. You attended the ASCA organisation insofar as drugs is concerned and that at the time you were abstinent, and have been abstinent in prison from the issues, and such led to a final conclusion of that ASCA report that you posed a low risk of harm to yourself or others.

36As I say, such optimism has to be tempered because of this crime being subsequently committed.

37However, Mr Morgan relied on those matters to indicate that you were attempting to change your life, even before this crime occurred.

38Mr Morgan put to me, and I accept his personal observation, that you presented to him in prison as a markedly different person than that who he originally saw.  He submitted to me that you have at your age now realised the consequences and as I said the other day, you are getting to a stage that you come before the Court again and you will get a very big sentence.

39Therefore, if you are going to enjoy your life, you need to make genuine attempts to change your life, and you are almost at the last chance.

40Mr Morgan submitted that that is exactly what you have been doing and made the personal observation which I accept that you certainly were and presented a markedly different presentation to him from the first time he saw you till your current position, physically and in manner.

41Mr Morgan asked me to accept that you never really appreciated how serious your offence was.  You were acting essentially in your own self-defence and the motivation was to reduce the charges to a degree, albeit not in any way to have the statements altered to the extent that you would not face charges.

42He asked the Court to accept that these were steps you were taking by way of self-protection and that the threat the day before the contested hearing, occurred while you were under the influence of the drug, ice, and the relevant stress from the upcoming court case.

43He also asked me to accept, and there does not seem to be any dispute with this, that your relationship with the victim had unfortunately been marked by excesses of both ice and alcohol.

44He also pointed out, despite your record to which I have referred, that you have at all times complied with the treatment requirements.

45Mr Morgan submitted to me that I should accept that in the last 11 months when you have been in gaol, your mind-set has changed.  As I say, I think the Court has to be careful about that, however, as I said during the hearing, let's hope so because I stress there are not many opportunities left for you unless you now change.

46I think the point Mr Morgan was making, however, was you have the ability and if one disregards this significant breach, you were making particular progress during the CISP time. Indeed Mr Morgan submitted that in the time that you have been in gaol, as demonstrated by the exhibits tendered, you have continued in that improvement and I accept his comments in that regard.

47Mr Farrugia, it is necessary for me obviously to take into account all those matters, but in particular the sentencing principles that apply, as I have said to you, and that must be adhered to in a serious matter such as this.

48I sentence you therefore combining and balancing those as best I can, and providing you as merciful a sentence as I can.

49Insofar as this charge is concerned, I sentence you to a period of two and a half years' gaol with a minimum period to be served of 18 months.

50I order that the period that you have served on remand of 337 days to date be deemed as service of this sentence.  It is clear that, having served essentially 12 months, you will have roughly another six months to go.

51I can indicate to you that given the general sentences for and the seriousness of the crime, that may be seen as a somewhat lenient and merciful sentence for you.  It is a sentence provided by me to give you a chance, and on the basis of your counsel saying to me that you are serious and intend to change your life.

52As I said, you are 33 now and the problem of institutionalisation is staring you straight in the face.  Unless you change, that is what you are going to end up with.

53It is important for me to tell you the effect of you pleading guilty.  Parliament has asked me to indicate the sentence I would have given you had you not pleaded guilty.

54It is difficult to talk about only one factor, given the number of factors necessary for me to take into account in sentencing you and which I have detailed, however, doing as best I can to comply with Parliament, can I indicate to you that had you not pleaded guilty, the sentence of two and a half years with 18 months, you would have been sentenced to three years and four months with a minimum of two years and three months.

55I am required to tell you that so that you appreciate in a clear sense the impact of your plea of guilty.

56So I wish you well and I will just check with counsel.  Are there any other matters I need to attend to.

57MS HERSCH:  No, Your Honour.

58HIS HONOUR:  All right.  I wish you well.  Prisoner can be taken away.  Yes.  We will stand down.  Thank you both.

59MR WOLF:  Thank you, Your Honour.

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