Director of Public Prosecutions v Green

[2024] VCC 78

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00364

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIJAH GREEN

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2024
DATE OF SENTENCE:	15 February 2024
CASE MAY BE CITED AS:	DPP v Green
MEDIUM NEUTRAL CITATION:	[2024] VCC 78

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Perverting the course of justice – Persistent contravention of a family violence intervention order – Conduct endangering persons – Make threat to kill – Common assault – Handle stolen goods – Contravention of order intending to cause harm or fear for safety – Offending committed against former partner – Victim made a statement of no complaint against the offender following phone calls from prison – Violence used against vulnerable partner in her home – Application of Verdins principle 5 and Bugmy – Limited criminal history – Guarded prospects of rehabilitation

Legislation Cited:      Crimes Act 1958; Family Violence Protection Act 2008; Sentencing Act 1991

Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; R v Verdins (2007) 16 VR 269; Carter v The Queen [2020] VSCA 156; Bugmy v R (2013) 249 CLR 571

Sentence:                  2 years and 10 months’ imprisonment with a non-parole period of 1 year and 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Glass	Office of Public Prosecutions
For the Accused	Mr J Kantor	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Elijah Green, you have pleaded guilty to an indictment containing eight charges:

Charge No.	Description	Maximum Penalty
1	Perverting the course of justice contrary to common law	25 years’ imprisonment
2	Persistent contravention of a family violence intervention order contrary to s125A of the Family Violence Protection Act 2008	5 years’ imprisonment
3	Persistent contravention of a family violence intervention order contrary to s125A of the Family Violence Protection Act 2008	5 years’ imprisonment
4	Conduct endangering persons contrary to s 23 of the Crimes Act 1958	5 years’ imprisonment
5	Make threat to kill contrary to s 20 of the Crimes Act 1958	10 years’ imprisonment
6	Common assault contrary to common law	5 years’ imprisonment
7	Handle stolen goods contrary to s 88 of the Crimes Act 1958	15 years’ imprisonment
8	Contravention of order intending to cause harm or fear for safety contrary to s 123A of the Family Violence Protection Act 2008	5 years’ imprisonment

2This matter came before me on 3 November 2023 for a sentence indication hearing. It was adjourned to allow the prosecution to file further material, including  a chronology. It returned before me on 21 November 2023 where I indicated that if you pleaded guilty, I would impose a maximum total effective sentence of 2 years and 10 months’ imprisonment with a non-parole period of 1 year and 10 months. This indication was accepted by you. The matter was  adjourned for a plea hearing on 23 January 2024.

Circumstances of the offending

3The circumstances of your offending are set out in detail in an agreed prosecution opening dated 20 January 2024.[1] I shall set out the facts in brief compass.

[1]Exhibit A.

4The offending represented by the eight charges occurred between 7 December 2021 and 31 March 2022. The victim of your offending was your partner at the time. You had been in an on and off relationship with her for some seven years.

5On 12 January 2021, the Bendigo Magistrates’ Court granted a final intervention order against you prohibiting you from committing family violence against the victim and damaging any of her property. The order was served upon you on 16 January 2021 and remained in force until 10 December 2021.

6On 7 December 2021, you were at the victim’s address. At approximately 6 pm, you woke up and began looking for your hat. You were unable to find it, and  accused the victim of hiding objects from you. The victim told you to calm down as you were becoming angry. You threw the victim to the ground in the kitchen and began kicking her whilst she lay on the floor. She attempted to protect herself, but eventually gave up fighting back. You stopped attacking her and began looking for your iPhone charger. Having located it, you used it to whip the victim across her fingers, causing her redness and pain (Charge 6).

7At some stage that same evening when the victim was in bed, you got on top of her. You grabbed two pillows and placed them over her face. When you did that, the victim’s head hit the concrete wall. She was unable to breathe and was gasping for air. You said to her, ‘stop I could kill you’.  She scratched at you in an attempt to get you to stop. You removed the pillow allowing the victim air before placing it back on her face. This conduct continued for approximately five minutes until you stopped and got off the victim (charges 4, 5 and 8).

8The victim told you to leave her house, but you refused. She called your friend, with whom you lived at the time. Your housemate eventually attended and picked you up. The victim spoke to the police about what had occurred.

9You were arrested on 8 December 2021 and remanded in custody. On 9 December 2021, an interim family violence intervention order was granted by the Bendigo Magistrates’ Court with full conditions which included a prohibition from contacting the victim. This order was served and explained to you on 10 December 2021.

10While on remand, you made friends with a fellow inmate who allowed you to utilise his phone credits. On 24 December 2021, you added your housemate to your call list. Between 24 December 2021 and 28 March 2022, you contacted him on his mobile phone a total of 105 times.

11On 9 February 2022, you asked your fellow inmate to add the victim’s phone number onto his phone list. Between 9 February 2022 and 28 March 2022, you contacted the victim by phoning her a total of 57 times.

12You arranged with your former housemate to message the victim and arrange for her to attend his house so that you could speak with her on your housemate’s mobile phone.

13On 4 February 2022, the victim felt compelled to comply with the request and attended your housemate’s address.

14You persistently asked her to make a statement of no complaint so that you could get out of jail. You called the victim utilising your fellow inmates phone credits on a regular basis. If she missed a phone call from you, she would get a text message from your housemate asking why she hadn’t answered her phone. You also left voicemail messages if she didn’t answer.

15As a result of the constant pressure, the victim attended Bendigo police station on 23 March 2022 and made a formal statement of no complaint.

16The statement of no complaint was tendered at your bail application on 28 March 2022. You were granted bail.

17A final family violence intervention order with full conditions was granted on 28 March 2022 where the victim was the protected person.

18On 16 June 2022, the charges against you were formally withdrawn. The statement of no complaint formed part of the reason for the withdrawal of the charges (Charge 1).

19On 20 June 2022, the victim attended the Bendigo police station and made a recorded statement in which she outlined the persistent nature of your requests to have the charges withdrawn. She also alleged contraventions of the family violence intervention order.

20As a result, police obtained the recordings of the telephone calls between you, your housemate and the victim whilst you were on remand between 9 February 2022 and 28 March 2022.

21As already stated, you contacted the victim utilising your fellow inmates phone credits a total of 57 times (charges 2 and 3).

22The relevant telephone calls made by you from custody are set out in the prosecution opening.

23On 9 February 2022, you called the victim and told her that your fellow inmate had been nice enough to put the victim onto his call list and therefore, you would be able to speak to her more now. You told her that you would refer to her as Kim.

24On 25 February 2022, you told the victim ‘I’m breaking the law, just to do, you know, just to talk to ya.’

25The next day, 26 February 2022, you told her ‘this is how easy it is, like to retract. Four or five dudes that have come in for the same thing, and they’ve already left.’ All you need to do is to basically just retract, just retract all, like, all the statements, even the statement made on the day retract it.’

26Later that same day, you said ‘do you have a pen and paper? This is what you need to do right. It’s called a statement of no compliance and a statement of no further action. Once you fill out these two forms, then say you want to withdraw the previous statement, done. You would need to go into the cop shop.’

27Some hours later, again on the same day, you said ‘you can retract all statements. Even on the day of being interviewed, you can retract all statements. It’s a non-compliance or something like that.’ Just tell them there’s a thing where you can take away all statements.’

28On 16 March 2022, you said to her ‘the statement of no complaint hasn’t gone through. I don’t know what else to tell ya. If that statement doesn’t come through, I’ll have to get a sentence indication and then do the time.’

29On 22 March 2022, you said to her ‘not to be an arsehole or anything like that. Have you chased the statement of no complaint? Did you tell me a day where you were going to be available, just go down there and do it.’

30On 23 March 2022, you said ‘did you put the statement of no complaint in or? Thank you so much, sweetheart.’

31You also made a number of calls to your housemate. They are set out in the tendered prosecution opening. These included calls between 6 January 2022 and 25 March 2022. The calls involved you telling your housemate to follow up with the victim about withdrawing her complaint.

32In a calI to another friend on 11 February 2022, you said, referring to the victim,  ‘I covered her mouth with a pillow for five minutes. I threatened to kill her, yeah.’

33On 19 October 2022, you were arrested. When searched, police recovered a stolen MasterCard in the name of an ex-housemate (Charge 7).

34In your police interview, you admitted to breaching the intervention order by contacting the victim directly and through your housemate. You admitted making calls to the victim asking her to make a statement of no complaint. However, you denied pressuring her.

35You have remained in custody since your arrest on 19 October 2022.

36The victim has chosen not to make a victim impact statement.

Criminal history

37You have a limited prior criminal history spanning some three years. All your previous appearances have been in the Magistrates’ Court. I note that all your prior history relates to the same victim subject of the offending now before me. In 2019, you were placed on a Community Correction Order for an offence of recklessly causing injury. That order was contravened by you on two separate occasions. In 2021, you were fined for two offences of contravening a family violence order. In October 2022, you were sentenced to an aggregate term of 74 days’ imprisonment for three offences of persistent contravention of a family violence order, five offences of committing an indictable offence on bail, three offences of contravening a conduct condition of bail and an offence of stalking. In addition you were placed on a 12 month recognisance to be of good behaviour for an offence of use carriage service to harass.[2]

[2]The appearance in October 2022 may not strictly be classified as a prior matter.

Background

38I have had regard to your background set out in the psychological reports and briefly alluded to in your counsel’s written submissions.

39Your parents separated when you were three years old. You were raised by your mother alongside five older siblings. Your contact with your father has been extremely limited. Your mother suffered from poor mental health and was physically abusive towards you. When you got into trouble she would physically discipline you which included an occasion when she strangled you. Your mother had a  number of relationships and you witnessed many men come home over the years. She would ignore you for weeks at a time. Due to financial issues, you would often go without meals.

40At one stage child protection became involved and you were sent to live with a family friend for a month. At the age of 15, you went with your mother to Scotland to live with her family. Due to your mother’s breakdown of her relationship with her family, you returned to Melbourne some 10 months later. You moved out of home at the age of 16 and struggled with homelessness for about 12 months. You have had no contact with your mother for the past five years.

41Other than one sister with whom you have resumed contact recently, you have virtually no contact with your family.

42As a result of your neglected appearance you struggled with bullying at school. You left school having completed Year 9. You commenced but did not complete a pre-apprenticeship in plumbing. You have undertaken some courses in interactive gaming and web design. Your employment history has been sporadic and limited.[3]

[3]See [34] of Ms Cidoni’s report. (Exhibit 2)

43You have used alcohol and illicit drugs from your teenage years. You began using cannabis at the age of 15 and it became a regular habit by the time you reached 17. You have also used ecstasy and MDMA as well as methamphetamine.[4]

[4]See [50] of Ms Cidoni’s report. (Exhibit 2)

Gravity of the offending

44The offending for which you fall to be sentenced is serious. It involved violent offending against a vulnerable former partner. You threatened and assaulted her in her home where she was entitled to feel safe. The violence you used was sustained and involved kicking her and an attempt to suffocate her.

45The courts attempted to protect your victim by issuing a family violence intervention order, however, you blatantly disregarded and breached that order. In addition, you attempted and succeeded in persuading the victim to withdraw charges against you by consistently telephoning her from custody as well as getting a friend to assist by speaking to her. The charge of perverting the course of justice is very serious as made plain by the maximum sentence of 25 years.

46I accept that the phone calls did not contain any threats, abuse or any monetary or other inducements. Nevertheless your conduct was persistent and involved recruiting a friend for assistance.

47While you are not to be punished for your prior offending and neither does your prior history impact upon the gravity of the offending before me, it is relevant as the prior offending involved violence and breaches of previous family violence orders against the same victim. The prior history bears on your higher moral culpability[5] and prospects of rehabilitation.

[5]Although see [62] of these Reasons.

48Any sentence must give effect to general deterrence as well as acting to deter  you. Your conduct must be denounced. The community, in particular domestic partners, must be protected.

49In sentencing you I bear in mind that there is an overlap in the offences and that will be reflected in the orders for cumulation.  

Matters in mitigation

50Your counsel tendered a number of documents during your sentence indication hearing. The same documents were relied upon at the plea hearing. They are:

(i)A psychological assessment report prepared by Ms Gina Cidoni dated 27 October 2023.[6]

(ii)Two psychological assessment reports prepared by Dr Aaron Cunningham dated 9 March 2022 and 25 August 2022.[7]

(iii)Letter from The Salvation Army regarding your participation in the Positive Lifestyle program prepared by Mr Morris dated 27 April 2022.[8]

(iv)Certificate of Achievement regarding the completion of the ICE & ME program dated 2 March 2023.[9]

[6]Exhibit 2.

[7]Exhibit 3.

[8]Exhibit 4.

[9]Exhibit 5.

51In addition, your counsel provided written plea submissions dated 23 January 2024.[10]

[10]Exhibit 1.

52I have had regard to all this material in formulating the ultimate sentence.

53I accept that you are entitled to a significant discount for pleading guilty. Having accepted the sentence indication, you have saved court time and expense and spared the victim from having to give evidence. The prosecution conceded that a further utilitarian benefit was appropriate in accordance with Worboyes v The Queen.[11]

[11](2021) 96 MVR 344.

54While in custody, you have taken advantage of counselling and courses available to assist with the issues you face. You have attended weekly to fortnightly counselling sessions with a psychologist. You were prescribed anti-depressant medication, although you are no longer required to take it. You have completed the Positive Lifestyle program which consisted of eight sessions. The reference from Mr Morris suggests that you participated with full vigour. You have also completed a six hour ICE & ME program. You have been working as an activities billet and a gym billet. This involves performing cleaning and maintenance tasks. You have resumed telephone contact with one of your sisters and engage in video visits every Saturday with friends.

55In her assessment, Ms Cidoni has diagnosed you with Substance Use Disorder (sustained remission in a controlled environment), Generalised Anxiety Disorder, Major Depression Disorder, Post-Traumatic Stress Disorder and with Paranoid Personality Traits.

56Not surprisingly, both Ms Cidoni and Mr Cunningham opine that you would benefit from ongoing psychological and psychiatric intervention.

57Ms Cidoni assesses your risk of reoffending as high. She states:

To reduce this risk, it is essential to continue his substance abuse treatment and engage in tailored psychological counselling, that includes anger management, early psychosis management, trauma care, and Cognitive Behavioural Therapy (CBT). Additionally, he should undergo a psychiatric evaluation to assess the effectiveness of medication, especially considering his high symptom presentation. Secure stable housing is crucial as it addresses the risk of homelessness and provides a stable environment for rehabilitation and re-integration.[12]

[12]See [96] of Ms Cidoni’s report. (Exhibit 2)

58Now aged 28, you are still a relatively young man. It is clear that you require a well-structured post release plan to address your specific needs and hopefully reduce the risk of reoffending.

59As noted, your prior offending relates to the same victim in respect of these present charges. Importantly, you appear to have accepted that your relationship with your victim is over and you have no intent to seek its resurrection.

60While this fact, along with the progress you have made in custody is somewhat encouraging, it is plain that you have a long way to go before any confidence can be expressed as far as your rehabilitation is concerned.

61Given your mental health diagnosis, I accept that imprisonment has had a significant impact upon you and I accept that principle 5 of Verdins[13] is enlivened. I also take into account that during your remand you have been subject to periods of lockdown.

[13]R v Verdins (2007) 16 VR 269. (Verdins)

62It is further clear, that you have had a disadvantaged background. It was devoid of guidance and affection. On the contrary, you were regularly physically punished by your mother. Your education was disrupted, you experienced homelessness and separation from your family members. The trauma you suffered in your formative years has led to emotional instability, flashbacks and difficulties in managing interpersonal relationships. On balance, I accept that the Bugmy[14] principle is engaged in a general sense. Accordingly, I am able to somewhat reduce your moral culpability for the offending before me.

[14]        Bugmy v R (2013) 249 CLR 571.

63I also bear in mind that you have served a sentence of 74 days imprisonment imposed in October 2022 for offending that occurred between 28 March 2022 and 20 June 2022.

64I note that the prosecution took no issue with the matters raised in mitigation.

Sentence

65Having considered all relevant matters and circumstances,[15] I convict and sentence you as follows:

·        On Charge 1 you are sentenced to 22 months’ imprisonment.

·        On Charge 2 you are sentenced to 3 months’ imprisonment.

·        On Charge 3 you are sentenced to 3 months’ imprisonment.

·        On Charge 4 you are sentenced to 10 months’ imprisonment.

·        On Charge 5 you are sentenced to 9 months’ imprisonment.

·        On Charge 6 you are sentenced to 9 months’ imprisonment.

·        On Charge 7 you are sentenced to a financial penalty of $400.

·        On Charge 8 you are sentenced to 6 months’ imprisonment.

[15]I have also had regard to Carter v The Queen [2020] VSCA 156.

66The sentence on Charge 1 will be the base sentence. Five months of the sentence on Charge 4; two months of the sentence on Charge 5; three months of the sentence on Charge 6 and two months of the sentence on Charge 8 will be served cumulatively upon the base sentence and on each other. The remaining sentences will run concurrently with the base sentence.

67This makes a total effective sentence of 2 years and 10 months’ imprisonment. I set a non-parole period of 1 year and 10 months.

Pre-sentence detention

68Pursuant to s 18 of the Sentencing Act 1991, the period of 596 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

69Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years’ imprisonment with a non-parole period of  2 years and 9 months.