Director of Public Prosecutions v Furlong

[2016] VCC 991

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00754

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARISSA FURLONG

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2016
DATE OF SENTENCE:	12 July 2016
CASE MAY BE CITED AS:	DPP v Furlong
MEDIUM NEUTRAL CITATION:	[2016] VCC 991

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	OPP
For the Accused	Ms C. Ratcliffe-Jones	VLA

HER HONOUR: 

1Marissa Furlong, you have pleaded guilty to one charge of attempt to pervert the course of justice.  The charge relates to the provision by you of a forged medical certificate to the Drug Court at Dandenong.  That bare recitation of the circumstances of the charge in itself indicate that first of all you have
a significant drug problem, or have had, that you have obviously had a criminal history and that deception had become a way of life for you, in order to feed your drug habit, but in order also to try and avoid the consequences of it. 

2The Drug Court is one of the really important sentencing initiatives that has been introduced in this State in recent times.  It is one of the few sentencing initiatives that has a very powerful rehabilitative focus, has built into an understanding of the difficult path that it can be for people who have struggled with addiction to drugs, often over many years, and which seeks to assist people by having a highly restrictive but highly monitored form of support around them. 

3It is a sentencing option, that whilst it has built into it an understanding that people will have slips along the way, is based very much on trust and you grossly breached that trust by this offending.  You failed, within a month of being placed on the order and after a very long and rocky history with many opportunities and many failures along the way. 

4It was within a month of being placed on the order you failed to turn up for
a compulsory urine screen.  You knew that that would expose you to a form of penalty, in the penalty and reward system built into the drug treatment orders, and instead of being prepared to face that consequence and to try again, you forged a medical certificate which, if accepted, would have given you
a reasonable excuse for not having attended for the drug screen. 

5It may have been, as your counsel indicated, an amateurish attempt which was quickly detected, and it may be also the fact that even the missing of that urine screen test, was not going to trigger the sort of penalty that you feared at that stage.  That is not to the point.  The gravamen of the offending and the reason why it is taken so seriously, is that you were intending to mislead the magistrate, so as to avoid the consequences of that failed test. 

6Because the Drug Court relies so much on trust, on giving people trust in order to enable them to fulfil a trust placed in them, it is obviously even more serious when - or it is very serious when somebody breaches that trust, not just by telling a fib, but by producing a forged document.  Whilst it is a single act, relatively easily detected, not involving any other people in a conspiracy to mislead a court, it is nonetheless serious offending. 

7As I said to you before, it is offending which normally would attract a term of imprisonment, because unless we can all have confidence that the criminal justice system works fairly for everybody and that when people have trust placed in them, that they respond to that trust appropriately, then public confidence generally breaks down in a criminal justice system.  Unless the Drug Court is seen to take seriously attempts by people to mislead them in that way, then its power to do its work with people and public confidence in allowing what is seen by many parts of the community to be a slap on the wrist and an easy way out, will be diminished.  We may lose that as a sentencing option, if the court cannot enforce its order, if the court is seen to be in a position where people are just teasing it, just telling lies to it, deceiving it and thumbing their nose at the option. 

8So there is a heavy burden placed on everyone who goes before the Drug Court, not just to take their own rehabilitation into hand, but to make sure they do not do something that ruins this opportunity for other people who could avail themselves of it.  You need to appreciate that this has been a pilot for
a long time.  It is only people who live in its catchment area, who are fortunate enough to have access to it.  There are many people who could benefit from it in other parts of this State, who because they do not live in the catchment area, do not get access to it.  So it makes it particularly unhappy for sentencing courts to have to deal with somebody who is lucky enough to be there and blew it in the way you blew it. 

9It was interesting to hear from Ms Ratcliffe-Jones, that you were one of a cluster of people who, around that period of July last year, thought that producing forged documents to deceive the Drug Court was a good idea, an easy way to get out of trouble.  So one can see how if this is not properly and firmly dealt with, it can easily become a practice that will make a mockery of what the Drug Court is supposed to achieve.  So in a sense you can already be seen to have been used as a vehicle to deter others who think that they can do this and get away with it. 

10That has always been a very important feature of sentencing, not just punishing the person, not just denouncing the conduct, not just setting a standard that we as a community think people should understand and live up to and feel they have signed up to, not just to deter the individual being sentenced from offending again, but to make it very clear that as a community we do not accept this and that people who think that they can do it, if they are in your position, are not just going to get away with it. 

11So the sentence has to reflect an element of general deterrence and in part, that has already been served by it being known within the Drug Court community, if I can call it that, that this is what happens.  You get charged with an offence, an offence so serious that you cannot be dealt with by the Drug Court, it has got to come up to the big league, to the County Court, with all the delays consequent on that and all the greater sentencing powers available to the court, but the absence of any power in this court to deal with the matter as a Drug Court matter. 

12Ms Ratcliffe-Jones sensibly acknowledged, as did Ms Parkes, the prosecutor, that attempting to pervert the course of justice is a serious offence and that
a deception which served to undermine the authority and integrity of the Drug Court, risks adversely impacting the effectiveness of drug treatment orders and the Drug Court generally, and therefore must be seen and regarded as serious. 

13I accept the matters put by Ms Ratcliffe-Jones that pointed to this, although serious, falling towards the lower end of the scale when compared with other examples of this type of offending.  It was, as she said, a single document and the deception was maintained over only a short period.  It did not involve other people.  It was, although planned, a relatively simple deception and one that was, although you may not have appreciated it, at the time, easily detected. 

14I do not consider your motive for the offending to be a mitigating factor.  You were trying to avoid responsibility and get out of trouble for something entirely of your own making.  It is, as Ms Ratcliffe-Jones said, ultimately an irony that had you simply copped your punishment for the failure to turn up for that urine test, you would not have triggered the imprisonment that you feared would be triggered by the breaches you had clocked up to date. 

15I accept that having embarked upon the commission of the offence, you acknowledged from the outset what you had done and that you knew it was wrong.  You sought to make no excuses or to blame anybody else.  You acknowledged it to the court on the day.  You remained there after you realised it had been detected, did not run away, as had been your pattern so often in the past.  You apologised to the magistrate and accepted responsibility. 

16Although it was many months before you were interviewed and you were in custody by then, you agreed to be interviewed, you co-operated fully, made full admissions and again, took responsibility.  The six months that had intervened, much of which had been spent in custody, had not led you to do, as many other people do, seek to justify or rationalise your behaviour, or pretend you had forgotten.  You continued to acknowledge what you had done, that it was wrong and that you had no excuse for it. 

17Again, consistently with that early plea of guilty, you then obviously co-operated in the fast tracking of this from the laying of the charge to the plea date in this court, indicating from the start that you intended to plead guilty, that you did not seek to challenge any of the evidence and did not want to take any further or any more court days than were absolutely necessary to get through the administrative processes to bring you to this court today. 

18It is true therefore to treat your plea of guilty, not just as one that has a utilitarian benefit and which gets weight from the fact that it is entered early and therefore speeds up the process of justice and does not add to extra expense, but it is, in my view, clearly an acknowledgement too by you of acceptance of responsibility and of co-operation with the system and remorse for your behaviour. 

19So in addition to the utilitarian benefit, the way you pleaded guilty, your conduct since then in relation to the path that finally led to you entering your plea of guilty before me today, I treat as an indication of remorse. 

20I take into account also the fact that seriously as it was treated and rightly so by His Honour Mr Parsons in the Drug Court, he also considered the philosophy and the purposes of the drug treatment order to be such as to still justify your continuation on the drug treatment order for some time after that, to give you further chances.  Now that ultimately did not work out and the order was cancelled by mid-September of last year, leading you then to spend that time in custody in respect of the sentence imposed and which had been deferred by reason of the drug treatment order, as well as part of other sentences for previously committed offences. 

21Although I consider that in the circumstances the six month delay in questioning, the three month delay in the formalities before the laying of the charge, were a delay not of your making and which imposed additional pressures and burdens on you, to which I will refer in a little more detail in a minute, you have, it would appear, used that time both in custody and then in migration detention after that, to reflect and to use the time of deprivation of liberty to really think about where at this age and stage of your life you want to be.  So you have used the delay as well as you could, although that is not to say that the delay was justifiable. 

22I accept that the delay in bringing the matter to finality before me has caused you anxiety and exacerbated the depression, from which you have been long diagnosed as suffering and was compounded for you by the serving of the deportation order at the end of your sentence and the uncertainty for the six months after that as to whether you would be able to remain in the country that has been your home since you were 12 years old, or be deported to a place with which you have no present ties and no connections.  So the impact on you of the delay has been significant and in my view also goes to reducing the sentence that otherwise would have been appropriate. 

23For reasons that are difficult to fathom, whilst the Department of Immigration was aware that you had been charged with this offence, was aware that you were pleading guilty and that your hearing date was today, quite unexpectedly last Friday, you were released, and as I gather from the materials provided to me, you had little or no notice of your release and your lawyers were not advised of the decision until you had actually been released from migration detention.  There may well be reasons better understood by those who deal with migration and deportation matters more regularly for making a decision whilst this matter was still pending, basing it on your past bad character only and leaving a second decision to be made once the sentencing for this matter had occurred.  But why leave it until four days before your sentencing hearing is a question that I am certainly not able to answer and has not been answered on the materials before me.  That clearly has also added to the stress. 

24The matters that must have persuaded the delegate, despite your extensive appalling criminal history, are matters that also are of significance for me.  You have had a very long history of drug abuse, not as a feckless  teenager it would appear, but not starting until you were in your early-20s and you had already given birth to your first child. 

25Your offending, whilst comprehensive, has been all of a minor character, minor dishonesties, all directed towards feeding your drug habit or hiding it from people, or running away from the consequences of it.  All the matters have been dealt with in the Magistrates' Court, and whilst you have been given many rehabilitative opportunities in the past, most of which you have not been able to see through completely, your offending has not included violence and has not escalated. 

26You have also, despite the fact that most of your gaol sentences were straight sentences and that you did not avail yourself as well as you could have of the rehabilitative options in CBOs and suspended sentences and parole periods to completely rehabilitate, you have also shown that you have been able to spend considerable periods drug-free and offence-free and as you have got older and matured.  That seems to have been a continuing pattern, longer periods of being drug and offence-free as you have got older. 

27Interwoven with a criminal history reflective of a long-standing drug abuse, is clearly a personal history that has had tragedies in it and yours is one of those.  I do not propose to repeat them here, you know them and they have clearly had a profound effect on you. 

28Balanced against those tragedies have been a remarkably loving and forgiving and supportive family and you are much better placed than many other people to be able to keep yourself drug-free, and more importantly, to have
a safe haven when you are and to have and maintain relationships with family members, with your father, your siblings and now your children. 

29It is no doubt that as much as anything else that persuaded the delegate not to deport you or to reverse that deportation order, and that also, in terms of my assessing the sort of person you are and evaluating the offending I have to deal with against that, is also a powerful consideration.  A person with your history of drug abuse and your history of offending, who can still command the love and respect of their family and still be accepted back, must have much going for them and it is something that you need to hold onto. 

30I have already said to you, but let me repeat formally for the purposes of this sentence, that I take into account the fact that by reason of the nature of this charge and having to be dealt with in this court, you have lost the opportunity of having it dealt with in the Drug Court at the same time as the drug treatment order was cancelled.  Had that been dealt with then, it is highly likely that it would have resulted in the imposition of a term of imprisonment for the offence of attempting to pervert the course of justice and highly likely that it would have been ordered to be served at least in part concurrently with the drug sentence. 

31I take into account that you were denied the opportunity of arguing for at least partial concurrency by reason of the service of the deportation order and in the circumstances, I treat that period whilst you were migration detention as period which should be counted as the equivalent of a term of imprisonment, attributable at least in part to this pending charge.  That is a powerful factor in deciding not to imprison you today.  Had you not had that time in migration detention, again I think it is highly likely that I would have imposed a term of imprisonment, even if you had been out in the community in the intervening time. 

32I must consider the principle of totality and therefore that disconnect in the timing of sentencing by reason of the fact this charge had to be dealt with in this court and the effect of the six month in migration detention mean that the sentence imposed today has to take into account that time of detention or custody already served, because of the connection with it. 

33I also must take into account the need to avoid double punishment.  In the Drug Court, under the drug treatment order, you received penalty of seven days of imprisonment, by reason of the production of that forged document.  Now that is properly to be characterised as a punishment for the breach of your drug treatment order, rather than punishment for the attempt to pervert the course of justice.  Analytically we can make that difference, but there's clearly a crossover and therefore the sentence for this has to be less that it might otherwise be, if there had not been a breach of a drug treatment order and penalty imposed for that, otherwise there would be a risk that you would be facing punishment twice for the same conduct. 

34You are a person with a longstanding history of depression and a long diagnosed history of depression, often untreated or poorly treated and often no doubt exacerbated by your drug abuse.  It is clear that your mental health was not assisted, either by your period of imprisonment, or by your period in migration detention and it is interesting to hear the description of the differences in care for people, treatment and programs available for people in custody, and even just the physical space and surrounds afforded to people in custody, compared to those in migration detention. 

35The migration detention is properly to be characterised as time done in more difficult circumstances and with less to offer a person and therefore with
a higher degree of risk to mental health than a time in custody, but I take into account the effect of the four months, followed by the six months on your mental health and the likely risk of a further downward spiral in your mental health were you to be returned to custody again. 

36You wrote an eloquent and very moving letter to immigration in relation to your appeal not to be deported.  Your father's letter was also very touching and very moving.  Those letters set out a lot of your family circumstances and a lot of the sort of person you are, can be and want to be and I do not repeat any of it here, but I accept it and adopt it. 

37What I do say is, having read the letters, and your letter in particular, your sort of unblinking look at yourself, acceptance of responsibility, remarkable absence of blaming of other people and your clear sighted view as to where you want to be and what you will face if you are deported, to me indicate first of all that you do have better prospects of rehabilitation than your history might suggest and a better insight into yourself now and by reason of that still present threat of deportation, and a much greater incentive to remain drug-free and offence-free in the future. 

38I consider therefore that your prospects of rehabilitation are properly to be regarded as good, rather than guarded, which would otherwise be a good characterisation for someone in your circumstances.  The support from your father and the relationship that you continue to have with your children and with the father of your other children, your first husband I think he was, was he not, all indicate that you have got much to live for, much to have an offence-free life to lead and that are much to give you supports in the community and to encourage you to remain offence-free. 

39I was also struck by the way you identified that during your long term of imprisonment back in 2004, you used it as a time to reflect, a time to realise what a life, drug-free and with stable accommodation, even if it was not of your choice, could mean for you and how you used that time to rebuild relationships with family and to appreciate that with structure around you, you could do better, and your understanding of how much more difficult it was to live offence-free outside with the temptations around you.  That again encourages me to think that your prospects of rehabilitation are good, because you can see that need for structure and support and accept it as enhancing your prospects for rehabilitation.

40I had been thinking at one stage, or wondering at one stage whether the right disposition in this unusual combination of circumstances, in particular because of the timing of events, was to defer sentencing to give you the opportunity to live a drug-free and offence-free life for some time and having regard to the looming migration threat, but having read your letter to migration, as well as having heard counsel's submissions, it seemed to me that there was a much greater prospect of keeping you offence-free, therefore protecting the community, as well as encouraging your rehabilitation if you were provided with supports and structures upon your release from gaol. 

41If you had had six months out and you had been drug-free and offence-free, it might have been different, but to be only three or four days out of migration detention after about 12 months in custody, it seemed to me to be a big ask to throw you out on your own without any supports.  That could well put you back in the position you were in each time you were released after a straight sentence, where it was left entirely up to you and that clearly was something you understood you were not able to do alone. 

42So I have decided that indeed the appropriate disposition is one of a community correction order, to provide you with, not only the punitive elements that come from that, and particularly supervision, as well as being under its hold for the time of the order, but also the rehabilitative elements and specifically drug treatment and mental health treatment. 

43Having regard to what was properly characterised as lower end of the scale for an offence of this type, but nonetheless serious offending and the time that you have spent in migration detention and the timing, that is, the fact that you are now released into the community.  I have decided that the appropriate term of the community correction order is eight months. 

44I want to make it very clear that that is not to be used as an objective measure of the seriousness of the offending, it is one that takes into account all of the other circumstances, particularly those timing circumstances, to which I have referred. 

45Again, had you been dealt with at the time that the DTO was imposed and had I been the sentencer at that stage, I would have been looking at something like a 12 month term of imprisonment for the attempt to pervert the course of justice.

46Could you now please stand.

47Melissa Furlong, on the charge of attempt to pervert the course of justice, to which you have pleaded guilty, you are convicted.  You are sentenced to be placed on a community correction order for a period of eight months, commencing today, 12 July 2016, and ending on 11 March 2017.

48There are mandatory terms that apply to all community corrections orders.  They are:

·    First that you must not commit another offence for which you could be imprisoned during the time the order is in force, and you know that is just about anything.  The most minor of shoplifts is an offence punishable by imprisonment. 

· You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend at Corrections for any of your visits or any of your programs and that you must submit to drug screening or testing, if directed to do so.

·    You must report to and receive visits from the Secretary of delegate.

·    You must report to the Community Corrections Centre at Box Hill at 703 Station Street, Box Hill, within two clear working days after the commencement of this order, and although you were assessed as unsuitable, by reason of your appalling history of non-compliance with orders and paroles, CCOs and CBOs and drug treatment orders in the past, an appointment has nonetheless been made for you tomorrow, 13 July at 10 am.  So if that means you have got to get up at 6 in order to get to Box Hill by 10, you have got to get there by 10.  They may not be as nice as I was today about you being late.

·    You must let a Community Corrections officer know within two clear working days if you change your address or your job.  So that is, if you get a job or if you lose a job, if you have a fight with your father and move out, you must let them know. 

·    You must not leave Victoria without first getting permission to do so from the Secretary or delegate.

·    You must obey all lawful instructions from and directions of the Secretary or delegate. 

49They are the core conditions that apply to all community correction orders.  There are the following conditions tailored specifically for you: 

·First, you must be under the supervision of a Community Corrections officer for a period of eight months. 

·Second, you must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager.

·Third, you must undergo any mental health assessment and treatment, as directed by the Regional Manager, and that may include psychological, neuropsychological or psychiatric assessment or treatment and treatment in a hospital or residential facility.

50Do you understand the effect and conditions of this order? 

51OFFENDER:  Yes I do.

52HER HONOUR:  Do you consent to it being made?

53OFFENDER:  Yes.

54HER HONOUR:  Do you understand what will happen if you breach?

55OFFENDER:  Yeah, absolutely.  Yes, Your Honour.

56HER HONOUR:  Tell me.

57OFFENDER:  Yes.

58HER HONOUR:  Tell me what will happen if you breach.

59OFFENDER:  Um, I'll go to gaol. 

60HER HONOUR:  Yes.

61OFFENDER:  And I'll get deported.

62HER HONOUR:  That is right.  They will bring you back before me, you will have to explain yourself to me, and I may not be as kind as Mr Parsons.  I certainly will not be inclined to give you as many chances.  And if they bring you back before me, if I find the breach proven, I can not only punish you for the breach, but re-sentence you for the original offence.

63OFFENDER:  Yeah.

64HER HONOUR:  And as you have said, you are likely to go to gaol if that is the case.

65OFFENDER:  Yeah. 

66HER HONOUR:  All right.  And as you know, although it is not part of what I can do, you are likely to be deported.

67OFFENDER:  Yeah. 

68HER HONOUR:  I suspect it is those things, as much as court order, that is going to keep you compliant and I hope so. 

69OFFENDER:  Yeah.

70HER HONOUR:  I will now have this provided to Ms Ratcliffe-Jones and ask her to take it down to you and for the two of you to check it and to sign it when you are sure you understand the conditions. 

71While that is happening, that is all I need do, isn't it, Ms Parkes?

72MS PARKES:  Yes, Your Honour,    

73HER HONOUR:  Anything else I need to say or any further orders I need to pronounce?

74MS PARKES:  No, there's a matter I just wanted to raise when Ms Ratcliff-Jones is back.

75HER HONOUR:  Yes, certainly.  Yes, Ms Parkes, what was it you wanted to raise?

76MS PARKES:  Is Your Honour contemplating including community work in the order? 

77HER HONOUR:  No, I wasn't.  Given the complexity of her issues.

78MS PARKES:  Yes.

79HER HONOUR:  Not just the injury that she presents with today, but the mental health issues and the drug issues.  It seemed to me that the punitive element was dealt with by way of supervision, the core conditions and, in effect really, by the period of migration detention already served.

80MS PARKES:  Yes, Your Honour. 

81HER HONOUR:  But thank you for checking. 

82MS PARKES:  Thank you.

83HER HONOUR:  And I am sorry I did not make that clear enough.

84All right, there are no further orders I need make.  Once a copy of that has been provided to you, Ms Furlong, my associate will make copies after I leave the Bench, you will be free to leave the court.

85Can I thank you, Ms Ratcliffe-Jones, and you too, Ms Parkes, for your assistance ‑ ‑ ‑ 

86MS PARKES:  Thank you, Your Honour. 

87MS RATCLIFFE-JONES:  Thank you, Your Honour.

88HER HONOUR:  ‑ ‑ ‑ in the plea.      

89I sincerely hope, Ms Furlong, you do not come back to this court before me or anybody else.  All right, we will adjourn. 

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