Director of Public Prosecutions v Greenwood

[2020] VCC 1970

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01220
CR-20-00097

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL GREENWOOD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2020
DATE OF SENTENCE:	8 December 2020
CASE MAY BE CITED AS:	DPP v Greenwood
MEDIUM NEUTRAL CITATION:	[2020] VCC 1970

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown	Office of Public Prosecutions
For the Accused	Ms S. Poulter	Haines & Polites

HIS HONOUR:

1Russell Greenwood, you have pleaded guilty to one charge of acts tending to pervert the course of justice, otherwise commonly known as attempting to pervert the course of justice.  That crime carries a maximum penalty of 25 years' imprisonment.

2You are now 43 years of age.  You were approximately 40 years of age at the time of the offending.  You pleaded guilty to a settled indictment and must get the benefit of that.  Insofar as remorse is concerned it is always a difficult concept and I will not take it any further.  You must, of course, get the utilitarian benefit of that plea of guilty.

3You do have a criminal history, which makes it very clear that you are absolutely no stranger to the criminal justice system.  When one looks at the material provided on your behalf and realises that you were, as a young boy, put into care, it is a criminal history which does not surprise anyone experienced in the criminal law.

4I will briefly summarise the matter in a moment.  There is no victim impact statement.  The offending has to be regarded as serious.  Pervert the course can cover an extremely wide range of behaviours.  General deterrence and specific deterrence have to be used.  Specific deterrence in your situation I do not think is going to make much difference, and there also must be appropriate denunciation and punishment.  It is often said that pervert the course of justice strikes at the heart of the system, but each case has to be looked at in the circumstances surrounding it in the milieu in which it all took place.

5A summary of the offending is that you had been in a relationship with a Kelly Wellan.  At the time of this offending you were no longer in a relationship but remained in contact.  You had also been in a relationship with a Rebecca Southall between July 2015 and September 2017.  The two of you continued to see each other after that.

6On Monday, 7 May 2018 you assaulted Ms Wellan at her home.  You subsequently pleaded guilty to that charge and, as I understand it, served 270 days in respect of it.  She did not report the matter to the police but her daughter did.  You were arrested in relation to that assault on 18 May.  She made a statement on 6 August, withdrawing her complaint, and her sister, Rebecca, also made such a statement on 23 August, withdrawing the complaint.

7On 2 September 2018 Ms Southall provided a statement to police that purported to give you an alibi for the timeframe in which the alleged assault against
Ms Wellan occurred.  Police were able to obtain records of telephone calls that you had made whilst in custody to both Kelly, as I will call her, and also to Rebecca, as I will call her.  I have read the transcript of those conversations provided to me by both the Crown and the defence, and that has been very helpful.  It is clear to me that there is no suggestion in those actual calls, despite what Rebecca said at a later time, that there was any intimidation or any threats or anything of the like from you.  As I have indicated for sentencing, each of the participants seems to have been a willing partner.

8The circumstances are that you were endeavouring to either avoid gaol or have your sentence reduced.  There can be a number of reasons why pervert the course can be very, very serious indeed, and others where it can be viewed as, whilst not minor, certainly of a much lower nature.  Your pervert the course was related to self-preservation, and whilst it has to be discouraged and general deterrence must play a part, it is understandable.

9I am aware of recent Court of Appeal authority in regard to this charge and, as I have indicated to counsel, I discussed it with them and I do not see any point in me buying into all that when the Crown here concede, I will be going to this in a moment, that the amount of time you have done for this actual offending is sufficient.  I have taken the view, as I have indicated, that the objective seriousness of the offending is at the lower end and I am aware that in the case of Borg’s offending, which I regard as much more serious than yours objectively, leaving out personal matters, received from the Court of Appeal a non-custodial sentence.

10What occurred was that it became clear from those phone calls that you had certainly engaged in conversations with Ms Wellan about withdrawing her statement so that you could, 'get the fuck out of here'.  Insofar as Ms Southall was concerned, she was interviewed by police.  I am told she was not charged and I simply accept that part of her record of interview, which confesses that the alibi was false and it was done in conjunction, if I can use a neutral term, with you.  I do not make a finding that you were petrified of her, as she says, and I need to take that no further.  There is no such indication, as already indicated in the material before me.

11They are the ways in which the Crown put the charges and they are the three separate ways in which you have pleaded.  It is agreed that the time you spent in gaol, the Crown say is sufficient and the defence say is too much.  I have already indicated that overall, in fact a number of months of imprisonment are going to be thrown away, that whilst I am prepared to, for pragmatic reasons if nothing else, impose a gaol sentence, I think that it must reflect the sentence - sorry, I think that the time you have served is greater by some distance than is actually needed.

12I then turn to matters personal to you.  The circumstances are that you have now spent a significant period of time in custody in relation to these overall matters. These go to questions of totality.  On 3 October 2019, as I think I have already indicated, you pleaded guilty to assaulting Ms Wellan and received a sentence of 270 days' imprisonment, which has been served.  You were in custody in total from May 2018 to 16 June 2020 when you were bailed.

13So it is a total period of two years and one month.  Approximately 340 days is available to be declared as pre-sentence detention, which is, on my calculation, 11 months.  You were sentenced in January 2019 for unrelated offending for a period of five months.  That period of custody I take into account in general the concept of lost opportunity for concurrency.  Effectively then there are 11 months to be attributed to this particular offending.

14Your personal circumstances are that, as I have said now, you are 43 years of age, you were born in Footscray and when you were eight years of age your parents, as I understand it, separated and you were placed in DHHS child protection care.  I dare say back at that period of time you were probable put in Baltara, just a guess on my behalf.  That is never a good start in a young man's life and what has happened after that is described accurately by your counsel as a, 'Significant cycle of instability, dislocation, abandonment, abuse and then substance abuse at an early age'.  Again, it is one of the sad consequences of the care, if I can put it that way, of the system that exists.

15In any event, I have mentioned that you have got a very significant criminal history.  You do have a son who is 17 years of age and he lives with your mother.  You have regular contact with him.  You get support from your father and stepmother, with whom you reside, and have strong support from your mother.  You do have a chequered employment history and when your health stabilises, you do hope to return to working.

16in 2015 for a period of time you were on a CCO and were able to avoid offending and I am told and accept that there has been no further offending since your release on bail for these matters in June of this year.  That would tend to indicate that despite your criminal history, at the age of 43 there is still a prospect of you rehabilitating if you are able to keep yourself clear of drugs and clear of criminal company.

17Insofar as your health is concerned you have suffered from hepatitis and were subject to a screening program whilst in custody.  A lesion was detected on your liver and by March 2020 you were advised it was potentially cancerous and it was noted it was increasing in size.  It was confirmed to be cancerous and in June 2020 you commenced chemotherapy while in custody to attempt to shrink it.  In September 2020 when you were on bail, and I am assuming that this had something to do with you getting that bail, you were taken to hospital overnight for removal of the tumour.  That tumour was removed or largely removed and another tumour was also detected and removed.  That operation appears to have been successful, though only the future, I suspect, will tell us if that is the case or not.  You remain on a liver transplant list and are required to have regular blood tests very week.  That is the set of circumstances in which you fall to be sentenced.  I am also aware that - or understand, I will be told if I have got this wrong, that since your release on bail you have been subject to a curfew and that in itself is a limitation of liberty.

18As I indicated, in all the circumstances, and I thank counsel and their instructors for the very sensible way this has been resolved and the way it has been gone about.  Balancing all those matters as best I can, you are sentenced to be imprisoned for a period of 180 days and I direct that 180 days be reckoned as having been served under this sentence.

19I have got to do a 6AAA, do I not? Yes. Pursuant to s.6AAA of the Sentencing Act I advise you that but for your plea of guilty, and I am aware this is now for the one charge instead of three, you would have been sentenced to be imprisoned for period of nine months.

20Are there any other orders I need to make, ladies, or is that - - -

21MS BROWN:  No.  As Your Honour pleases.

22HIS HONOUR:  Yes, all right.  Yes, all right.  As far as just in finally, so the prospects of your rehabilitation, Mr Greenwood, are up to you, and the risk of you reoffending, as you now know after 35 years of it, where if you use drugs, you are going to and this will all happen again but that is a matter for you.  All right, again, thank you, ladies, for the very sensible way in which this was all dealt with, and we will simply adjourn.

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