Director of Public Prosecutions v Goodwin

[2022] VCC 1797

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02444

DIRECTOR OF PUBLIC PROSECUTIONS

v

LILY GOODWIN

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JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2022
DATE OF SENTENCE:	18 October 2022
CASE MAY BE CITED AS:	DPP v Goodwin
MEDIUM NEUTRAL CITATION:	[2022] VCC 1797

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Trafficking in a drug of dependence – Appeal against sentence – Attempting to pervert the course of justice – Provision of false information to police – Guilty plea – Co-accused sentenced – Parity – No prior convictions – Prospects of rehabilitation – Sole caregiver of child

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: DPP v Toma [2007] VSCA 315; DPP v Orde [2022] VCC 1303; DPP v Muller [2021] VCC 286

Sentence: Two six month community correction orders – 60 hours of unpaid community work – s 6AAA declaration – 6 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Keks	Office of Public Prosecutions
For the Accused	Mr A. Dickenson	Stary Norton Halphen

HIS HONOUR:

1The court has before it two matters concerning Ms Goodwin.  In the first matter Ms Goodwin appeals against the orders of the Warrnambool Magistrates' Court made on 21 December 2021, and in the second she pleads guilty to a charge of attempting to pervert the course of justice.

2Dealing first with the appeal, Ms Goodwin pleaded guilty to a charge of trafficking in a drug of dependence, being methylamphetamine, contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). According to the summary in that case the offending occurred over a period of some five weeks. The main evidence against Ms Goodwin consisted of text messages on her phone which revealed her involvement in her then fiancé, Daniel McDonnell's drug trafficking business.

3In particular, she facilitated the payment of money to individuals for drugs and she received money from customers.  Ms Goodwin, who has no prior convictions, and played a subsidiary role to that of her fiancé, was convicted and sentenced to 62 days' imprisonment, being time served, combined with a six month work only community correction order with 75 hours unpaid community work.

4His Honour Magistrate Stratmann declared, pursuant to s 18 of the
Sentencing Act 1991 (Vic), that the 62 days that Ms Goodwin had served in custody be reckoned as time served. In her appeal dated 23 December 2021 Ms Goodwin contends that the sentence was excessive. At the hearing of the appeal in this court on 30 September 2022 Ms Goodwin's counsel, Mr Dickenson, described her as a person of exemplary character and submitted that her time in custody had a salient effect on her. Ms Goodwin is 30 years of age and she has a child who is now three years of age and for whom she is the sole caregiver. She has re-partnered since the events giving rise to these proceedings but is living by herself and I note that she is working two jobs to support her family.

5Mr Dickenson described Ms Goodwin's rehabilitation prospects as about as good as they are going to get and he submitted that her offending is a reflection of her getting in with the wrong crowd.  I note that the prosecution submitted that the sentence imposed by the Magistrates' Court was within the range of available sentences.

6Turning then to the disposition of the appeal, I first set aside the orders of the Magistrates' Court pursuant to s 256 of the Criminal Procedure Act2009 (Vic). In my re-hearing of the charge, I consider this to be a low-level example of a serious offence. Drug trafficking must be denounced by the court and general deterrence is a key sentencing consideration. I consider specific deterrence to be of less importance given the lack of prior criminality by Ms Goodwin and her steady home and work life. I accept that Ms Goodwin's rehabilitation prospects are very good and that this court should not do anything to jeopardise that. I note the submissions of the parties in relation to a community correction order being within the range of appropriate sentences. I will make a final order in relation to the appeal after I consider the other matter involving Ms Goodwin before the court.

7Turning to the second matter, Ms Goodwin also pleaded guilty to a charge of attempting to pervert the course of justice, contrary to the common law.  The maximum penalty for this offence is 25 years' imprisonment, and this reflects the very serious nature of this offence which, as the authorities remind us, strikes at the very heart of the justice system.[1]  People who are found guilty of the offence of either attempting to pervert the course of justice or perverting the course of justice almost invariably face imprisonment.

[1]DPP v Toma [2007] VSCA 315 at [22].

8The circumstances of Ms Goodwin's offending are set out in the
Summary of Prosecution Opening dated 3 March 2022, and the facts are somewhat complicated, and rather than reading the entire opening I will read select parts of it:

9The accused, Lily Goodwin, is charged with attempting to pervert the course of justice, contrary to the common law.  Late in the evening of 7 April 2020,
William Orde was driving a Jeep Cherokee which was registered to Ms Goodwin.  He crashed the Jeep on the Hamilton Highway near Geelong and when police attended the next morning Mr Orde told them that he had not been the driver.  Over the following weeks Mr Orde and Ms Goodwin, together with Ms Goodwin's then fiancé, Daniel McDonnell, agreed to provide false information to police about the circumstances of the collision in order to conceal the fact that Orde had been the driver of the Jeep and thus enable him to avoid criminal responsibility.

10Ord, in consultation with Ms Goodwin, recruited Torey Muller to make a false confession, and Ms Goodwin nominated Mr Muller as the driver to police.  On 25 April 2020 Mr Muller presented for a voluntary interview with police during which he falsely stated that he had been the driver of the Jeep.

11The prosecution case against Orde is that he encouraged Ms Goodwin and
Mr Muller to falsely tell police that Mr Muller was the driver of the Jeep at the time of the collision, including by paying Mr Muller to do so.  By those acts
Mr Orde engaged in conduct with a tendency to pervert the course of justice, intending to bring about that result. The prosecution case against
Ms Goodwin is that she encouraged Mr Muller to falsely tell police that he was the driver and provided that false information to police herself.  By those acts she engaged in conduct that had the tendency to pervert the course of justice, intending to bring about that result.

12The summary, which I have taken into account, sets out in considerable detail the messages that passed particularly between Ms Goodwin and Mr Orde and Mr Muller, and also sets out the circumstances in which Ms Goodwin twice gave police information which she knew to be untrue at the time that she gave it.  Firstly, that she did not know the identity of the driver in circumstances where it is highly likely that she knew that it was Mr Ord, and secondly, in her capacity as the registered owner of the vehicle, formally providing information to police which she knew to be false, that is that Mr Muller was the driver at the relevant time. The provision of false information to police on two occasions is really the gravamen of the case against Ms Goodwin.

13I note that Ms Goodwin is the last of the four co-accused to face court.  Each of the three:  Orde, McDonnell and Muller, have already been sentenced in this court.[2]  In those circumstances parity is therefore important.  I have read each of the sentencing decisions in relation to the other three.  I note that the person who hatched the plan and had the most to gain from its execution was Mr Orde.  He was sentenced to nine months' imprisonment for attempting to pervert the course of justice, and I note that he has, and had at the time of sentencing, an extensive criminal history.  Mr Muller and Mr McDonnell, each of whom have criminal histories, were sentenced to imprisonment for three months.

[2]DPP v Orde [2022] VCC 1303; DPP v Muller [2021] VCC 286.

14Prior to pleading guilty in this matter, Ms Goodwin sought a sentencing indication from the court pursuant to s 207 of the Criminal Procedure Act 2009.  I heard from her counsel and counsel for the DPP and indicated that I considered Ms Goodwin's role to be about the same as Mr McDonnell's.  As the registered owner of the car she played a key role in the execution of the plan by nominating Mr Muller and, as I have said, she lied to police on two occasions.

15I took into account her personal circumstances that I have outlined above and indicated that if she pleaded guilty, I would likely sentence her to time served and a six month community correction order with 40 hours’ unpaid community work as the only condition.  That is the sentence that I now impose on the pervert the course of justice charge and from here on in I will refer to that as the ‘perverting the course of justice CCO’.

16Returning then to the appeal on the drug trafficking charge, Ms Goodwin, I convict you and sentence you to a further six month community correction order with 40 hours' unpaid community work as the only condition.  I will refer to this as the ‘trafficking CCO’ for reasons that will become clear.

17Having regard to the principle of totality, I order that the two community correction orders are to be served concurrently. I refer to s 41(1) of the Sentencing Act, and under s 41(2) of that Act I direct that 20 of the 40 hours of unpaid community work required under the trafficking CCO be cumulative on the 40 hours required on the perverting the course of justice CCO.   In summary, what it amounts to is you are convicted and must serve a six month community correction order under which you will be required to perform 60 hours of unpaid community work.

18I know this was probably already explained to you in the Magistrates' Court,
Ms Goodwin, but I need to again, because I am re-hearing the matter, explain to you the standard terms attached to a community correction order.  I do that now:

·firstly, you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

·you must comply with the obligations or requirements prescribed by the regulations;

·you must report to and receive visits from the Secretary or their delegate during the period of the order;

·you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force, that is within two clear working days of today;

·you must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change;

·you must not leave Victoria except with the permission of the Secretary or their delegate, either generally or in relation to a particular case;

·and you must comply with any direction given by the Secretary or their delegate that is necessary for the secretary or their delegate to give to ensure you comply with the order.

19In addition, the following special conditions apply to the order that I impose today. 

20You must report within two days, however is the most appropriate way to report, whether in person or by phone, either at Warrnambool or Hamilton Community Correctional Services.

21The other special condition is that you must complete the 60 hours of unpaid community work and that you ought to be supervised, monitored and managed as directed by the Secretary or their delegate.

22Ms Goodwin, I cannot make a community correction order, I cannot impose a community correction order on you unless you agree without thought terms and conditions.  Do you agree to comply with the community correction order with the terms and conditions which I have set out?

23OFFENDER:  Yes, Your Honour, I agree.

24HIS HONOUR:  All right, thank you, Ms Goodwin.  You need to understand that if you contravene any of the conditions on the order which will commence forthwith, then that in itself is an offence punishable by a maximum of three months' imprisonment.  Should that occur you will be brought back before the court and it is possible that depending on the circumstances, the order will be cancelled and you will be ordered to serve a term of imprisonment instead.

25Finally, I indicate, pursuant to s 6AAA of the Sentencing Act, that had you pleaded not guilty to this charge, that is attempting to pervert the course of justice, and had you been found guilty by a jury, the sentence that I would have imposed would have been six months' imprisonment.

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