Director of Public Prosecutions v Foster
[2016] VCC 1257
•31 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01599
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFF RICHARD FOSTER |
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JUDGE: | Her Honour Judge S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2016 | |
DATE OF SENTENCE: | 31 August 2016 | |
CASE MAY BE CITED AS: | DPP v Foster | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1257 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Attempt to pervert the course of justice
Cases Cited: Boulton v The Queen [2014] VSCA 342
Sentence: 6 month Community Corrections Order - 300 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Miss S. MacDougall | OPP |
| For the Accused | Mr A. Lavery | Emma Turnbull Lawyers |
HER HONOUR:
1 Jeff Foster, you have been found guilty by a jury of one count of attempting to pervert the course of justice. You were originally charged with a number of offences on one indictment; those of intentionally causing injury, recklessly causing injury, affray, and attempt to pervert the course of justice.
2 On 6 June 2016, the first day of the trial, your counsel applied to sever the last charge on the indictment. The following day, on 7 June 2016, I severed the last charge from the indictment and the first trial proceeded in relation to the single charge on Indictment D11820552.1, that of attempt to pervert the course of justice. On 20 June 2016, the jury returned a verdict of guilty on the single charge on that indictment.
3 The following day, a fresh jury heard the remaining three charges on Indictment D11820552.2, and on 27 June 2016, the jury returned a verdict of not guilty on those charges.
4 The circumstances of the offending are set out in the summary of prosecution opening, tendered at the first trial, as well as in the background information provided by your counsel on the plea. I summarise those facts briefly.
5 You were born on 27 May 1960. You had been acquainted for some years with a man called Charlie Borg, who was the alleged victim of the charges of which you were acquitted in the second trial. There was a long history of conflict between yourself and Mr Borg. When your father died in 2007, your mother was invited by Mr Borg to invest money in a business venture proposed by him. The proposal was that she buy a half-share in the Duncans Lane property where he lived, and that, when the area rose in value, she would realise a profit after the sale of the property. You opposed your mother’s decision to buy into that property. You lived at the property with Mr Borg for a time after your marriage broke up. You discovered that the property was in a noise corridor for Melbourne Airport and would never be zoned residential. You fell out with Mr Borg and moved out.
6 After a time, you became aware that he was using the premises for the cultivation of cannabis. You were concerned that your mother’s $100,000 financial stake in the property would be jeopardised and you reported the matter to police. Mr Borg became aware that you had done so and your relationship then became very acrimonious. Mr Borg obtained an interim intervention order against you. When your mother had a stroke in 2009, Mr Borg was listed as her carer and she went to live at Duncans Lane with him. You were unable to obtain a variation of the interim intervention order to enable you to visit her there. In 2010, she had a second stroke and died ten days later in hospital. Mr Borg did not inform you of her condition and you did not see your mother before she died. This caused you much distress. In 2010, the intervention order was not made permanent.
7 On 25 July 2012, the incident, the subject of the second trial occurred. Mr Borg got in his car to drive to a friend’s place. Before leaving, he saw a Toyota wagon, which was driven by you, pass his driveway. He pulled out and was driving behind you down Duncans Lane. You were driving down Duncans Lane with your son, Alan. According to Mr Borg, you braked, and he swerved to avoid your car, braking hard. Mr Borg’s version of events was that his car stalled next to yours, that you got out of the car, approached his side passenger door, yelled at him, then opened the driver’s side door and reached in, pulled him out of his car and onto his feet. In the minutes that followed, both of you were injured. Mr Borg was lying on the ground when another car pulled up and you and your son drove off. The other car followed you and your son filmed this on his Nokia mobile phone.
8 Mr Borg was taken to hospital and released later that night. He told police that you were the aggressor. You attended a police station on the same night with your son and reported that you had been assaulted. You attended hospital for treatment to an injury to your left eye.
9 When interviewed by police on 3 August 2012, you told police that Mr Borg had been following you and that he assaulted you. After a police investigation, you were charged with the assault-related offences, which were the subject of the second trial. By its verdicts of “not guilty” in relation to each of the charges heard in the second trial, the jury indicated that it was not satisfied beyond reasonable doubt that you were guilty of the charges.
10 The conduct which constituted the attempt to pervert the course of justice may be briefly described as follows: The assault-related charges against you were listed for a contested hearing in the Magistrates’ Court at Sunshine, commencing on 17 June 2013. The case proceeded and evidence continued into a second day. After the lunch break on 18 June 2013, the police prosecutor was approached by your counsel. You handed a USB stick to your counsel and the prosecutor was told that it contained footage taken of the assault incident on 25 July 2012.
11 The footage was viewed by the prosecutor, your counsel and the informant on a laptop in a vestibule outside the courtroom. The police prosecutor asked for permission to take a copy of the video footage. Your barrister accompanied the police prosecutor and the informant to the police station, where the video footage was downloaded onto a computer and copied onto a disc. Investigation revealed that the video footage produced by you at court on that day had not been present on the DVD produced by E-crime when the contents of your son’s Nokia phone was downloaded.
12 On 19 June 2013, the proceedings at Sunshine Magistrates’ Court were adjourned and you were interviewed in relation to the presentation of the video footage. You told police that the video footage had been on your son’s phone when it was seized after the incident on 25 July 2012, and must have been overlooked by police. You denied that the footage was a re-enactment of the incident.
13 On that night, police attended your home, executed a search warrant and seized a number of electronic and computer items, including a Toshiba L750 laptop. In early-July 2013, Mr Borg viewed the footage produced on the USB stick and said it did not show him, nor the clothing he had been wearing on the day of the incident and could not be a film of the incident. Digital forensic analysis established that the material on the USB stick was not footage of the actual incident which occurred on 25 July 2012.
14 By its verdict of guilty on the charge of attempting to pervert the course of justice, the jury must have been satisfied that you engaged in conduct that tended to pervert the course of justice and that you intended for that conduct to pervert the course of justice.
15
Your personal circumstances were referred to by your counsel and canvassed in the psychological report of Dr Aaron Cunningham & Associates, dated
12 August 2016, which was tendered on the plea. I refer to them briefly. You are now 56 years old. You were born in the United Kingdom and were raised with your older brother in London. You left home at age 26 to live with your partner. Your parents relocated to Australia in 1989. You married your partner in 1992 and had three children with her, the youngest of whom, Alan, is aged 20. You relocated to Australia in 2002. Your marriage broke up in 2007 and you moved from the family home to your mother’s farm. You are currently living in Airport West in your parents’ former home. Your father died in 2007 and your mother died in 2011. You are in ongoing dispute with Mr Borg concerning your mother’s estate and your relationship with him is poisonous and has left you deeply embittered.
16 You have an auto engineering degree from the United Kingdom and a Graduate Certificate in Management from Swinburne University. You have had a solid employment history in transport and engineering since graduation. You also took a second job as a driving instructor.
17 In 2006, you began to operate your own business from the garage of the family home doing quality control work for Toyota using your own tools. That business collapsed after you lost access to the home when your marriage broke up. You then worked as a driving instructor until you lost your Working With Children authorisation in the wake of the intervention order taken out against you and the criminal charges brought against you. Since 2012 you have been on a Newstart Allowance, as the automotive manufacturing industry in Australia has closed. You plan to return to the United Kingdom as soon as possible to resume working in that industry.
18 Dr Cunningham considered that you are suffering from an adjustment disorder, with mixed anxiety and depressed mood, following the breakdown of your marriage, which has been perpetuated by your ongoing disputes with Mr Borg and the court proceedings.
19 The prosecution submitted that you have committed a serious offence, punishable by a maximum penalty of 25 years’ imprisonment; that the relevant sentencing considerations are those of just punishment, general and specific deterrence, and that, in the circumstances, the appropriate sentence is one of a custodial sentence, with or without a community corrections order. It was noted that your offending involved planning and the involvement of at least two other people and that two videos were manufactured by you, although only one was produced at the Magistrates’ Court. The inference to be drawn by its production by you is said to be that you sought to influence the outcome of the proceeding in the Magistrates’ Court. The prosecution sought a forensic sample order which was not consented to.
20 Your counsel made a number of submissions on your behalf. Firstly, he submitted that the circumstances of your offending are highly unusual in a number of respects. Your relationship with Mr Borg had been very strained over a number of years before the road-side altercation in July 2012, for reasons which I have already outlined. Your own personal circumstances were very precarious. Your marriage had broken up; your engineering business had failed; you had been kicked out of the family home; you were working as a driving instructor. Once charged with the assault-related offences, you were unable to continue working in that capacity. Since 2012 you have been living on a Newstart Allowance and waiting for finalisation of all court matters so that you can move back to the United Kingdom, renew your engineering qualifications and find employment. You have been doing voluntary work with the Helping Hands Mission and a letter to that effect was tendered on your behalf.
21 Secondly, he submitted, the circumstances in which the video was actually used were unusual. He noted that the USB stick was produced by you to your barrister in the court room, half-way through the case and it was played or showed on the laptop by your barrister to the prosecutor at that time. It was unclear, Mr Lavery submitted on your behalf, exactly how the material on the video was intended to be used and if you intended merely to use this material to demonstrate your version of events to your barrister, but in any event, it was conceded that you did not stop your barrister from showing it to the prosecutor. Thereafter, it was said, the matter took on a life of its own.
22 Thirdly, he submitted, that your ultimate purpose in making the video was to indicate that Borg, and not you, was the aggressor in the altercation and to prevent him from prevailing against you again, as he had done in the past through his conduct with your mother. By its verdict acquitting you of the assault-related offences, it was submitted that the jury indicated that it was not satisfied beyond reasonable doubt that you committed the offences. So, in effect, it was submitted, what was in the video you produced was not at odds with Mr Borg, and not you, being the aggressor.
23 Fourthly, he submitted, you have no prior convictions and are unlikely ever to re-offend, as your offending in this context was driven by the particular history of your relationship with Mr Borg, and once this matter is finalised, you will return to the United Kingdom as soon as possible.
24 Finally, it was conceded that the charge of attempting to pervert the course of justice is a serious one and that you made a very bad judgment in producing the video and giving it to your barrister in court during the course of the Magistrates’ Court hearing. However, in all the circumstances, it was submitted that this is not a case requiring the imposition of a custodial sentence.
25 I accept the matters put by your counsel on your behalf, insofar as they are consistent with the verdicts returned by the juries in your trials. The circumstances of this case are highly unusual. While the offence of attempting to pervert the course of justice is a very serious one, as demonstrated by the maximum penalty prescribed by Parliament, I consider that your offending lies at the lower end of seriousness for offending of this kind. Your offending was driven by your concern to prevent Mr Borg’s version of events prevailing in the Magistrates’ Court; consisted of an effort to bolster your own version of events that he, rather than you, was the aggressor in the altercation and this conclusion was consistent with your acquittal in the second trial in relation to those assault-related charges.
26 Although there appears to be no evidence of remorse on your part, I accept this is because you are so embittered about the impact that Mr Borg has had on your life and I acknowledge that, you have acknowledged through your counsel, your very poor judgement in making the decision to manufacture the video and to produce it in court. You have no prior convictions, an excellent work history, and very good prospects of rehabilitation.
27 In all the circumstances, I do not consider that the imposition of a custodial sentence is the only possible sentence open to me.[1] Rather, I consider that the sentencing considerations of denunciation, just punishment, general and specific deterrence are able to be satisfied, given the very unusual circumstances of this case, by the imposition of a non-custodial disposition.
[1]Boulton v The Queen [2014] VSCA 342.
28 You were assessed on 24 August 2016 as unsuitable to undergo a community corrections order, but you indicated through your counsel that you would consent to a community corrections order with unpaid community work as the sole condition. I propose to impose a six month community corrections order upon you with 300 hours of unpaid community work.
29 Please stand.
30 Jeff Foster, on the charge of attempting to pervert the course of justice, you are convicted and sentenced to a six month community corrections order, with the condition that you complete 300 hours of unpaid community work. Once you have completed the community work component of the order, the community corrections order will lapse and you will be free to leave Victoria.
31 In addition to the community work condition I have specifically imposed, you must also abide by the terms that apply to all community corrections orders. These are:
· That you must not commit any other offences during the period of the order being in force, that is, six months from today. Any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment;
· You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Broadmeadows within two clear working days, which will be 2 September 2016.
· Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring.
· Finally, you must obey all lawful instructions from and directions of Community Corrections officers.
32 Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the community corrections order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment. Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offence. Do you consent, in these circumstances, to the imposition of such an order? Mr Foster?
33 OFFENDER: Thank you, Your Honour. I recently learned over the weekend and due to the - - -
34 HER HONOUR: I am not asking for a - - -
35 OFFENDER: My daughter in Perth is dangerously ill and I will be moving to Perth at some time - - -
36 HER HONOUR: You can get the approval to travel out of the State of Victoria.
37 OFFENDER: Thank you. I will agree with your terms.
38 HER HONOUR: Yes, all right.
39 In all the circumstances, I decline to make the forensic sample order sought by the prosecution because I do not regard the seriousness of the offending as warranting the making of the order.
40 Are there any other matters?
41 MR LAVERY: No, Your Honour.
42 HER HONOUR: I did not refer to the one day pre-sentence detention, because I did not think it was relevant ultimately, so I am aware of it.
43 Any other matters?
44 MISS MacDOUGALL: No, Your Honour.
45 HER HONOUR: No, all right, thank you. I will just get you to sign the consent, Mr Foster, before you leave. Thank you, we will adjourn.
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